Modern police work or invasion of privacy?

NOTE: This article was initially posted in June 2019 and has been updated with new and current information.

The Maryland legislature passed a new law in 2021 that further regulates how law enforcement uses commercial DNA databases to identify suspects. With this new law, Maryland joins Utah and Montana as the only states to limit police use of these databases. In 1994, the Maryland legislature passed the Maryland DNA Collection Act which authorized police to gather DNA evidence for certain criminal investigations. The Act was expanded in 2008 to included more crimes but also limited law enforcement from using State databases to search for relatives of a suspect, or familial matches. Maryland is the only state with such a limitation of state run databases.

Maryland’s new law will take effect in October 2021 and bars law enforcement from using commercial DNA databases to look for familial connections. Law enforcement will be required to exhaust all other avenues of identification and then make application to a judge. Police will also have to obtain consent from a person not suspected of a crime before comparing that person’s DNA to commercial databases. 

 

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In March 2019, Florida police identified a suspect in a 1998 cold case murder after a man submitted his fingerprints for a job application. Law enforcement had submitted unknown fingerprints from the murder scene to a National database. As fingerprints from crime scenes, criminal arrests, clearance, and background checks are submitted to the database they are checked against the fingerprints on file. Matches are then reported back to the submitting police departments.

Fingerprints

As detailed my blog, “National” Record Checks? there is not a national database of criminal records. There is, however, a database of fingerprints that matches to criminal records of individuals.  Maintained by the FBI and begun in 1924, the database contains the world’s largest database of fingerprints and associated criminal history. Up until 1999, the system was based on the manual collection, submission, and examination. Police would ink up a person’s fingers, roll out the prints on a card, and submit the card to the FBI. There, technicians would painstakingly, individually, examine the prints under magnification and check against known crimes or suspects. After which the cards were filed. When the system became digital it was possible to check the submitted prints against the entirety of the database. Unknown prints found at crime scenes could then been matched against previously submitted prints and suspects developed. If you have ever been fingerprinted your prints are stored in the system and checked against other submissions thousands of time a day. 

The Florida case happened that way. In 1998, police submitted latent prints collected from the murder site. For twenty years every fingerprint submitted to the FBI was checked against the 1998 submission. The killer had avoided being fingerprinted for two decades.

Familial DNA

DNA testing was first developed for use in paternity identification.  Police in England first used DNA in a criminal case in 1986. The first DNA conviction in the U.S. came in 1987. As with any new forensic test, court admissibility was tested early on. Over the years DNA identification has been accepted and the process of collecting and identifying made more efficient. What used to take weeks now only takes days.

In 2018, police and the FBI captured a man suspected of being a serial rapist and murderer in a multitude of cases from forty years ago. The case was broken through the use of DNA. The suspect himself was smart enough not to have his DNA logged into any DNA databases. Smart detectives realized that outside of justice system DNA databases there is a plethora of information being collected by private entities. Ancestral research companies provide DNA collection kits, which allow people to submit their DNA for comparison to other samples in hopes of finding family matches. You guessed it. The profiles are stored in databases so that they can be pinged during searches.

Checking crime scene DNA against public sources of DNA, police were able to get a familial match. That match narrowed the pool of suspects down to one family.  This method has been tagged as “genetic genealogy”.  After the familial match, through traditional police work, detectives were able to identify a suspect. 

Genetic genealogy also works to identify the victims of violent crimes. In 2019, Anne Arundel County Police identified the remains of a man who had been discovered in a trashcan during the construction of Marley Station Mall in 1985. Roger Kelso was believed to have been killed in the 1960s and buried in the woods where the mall would eventually be constructed. Police compared the victim’s DNA to samples in public databases to form the familial match. The long cold case is now active.

The same methods were used to identify the remains of a woman and children found buried in barrels in the woods of Allenstown, New Hampshire in 1985. Although law enforcement had long ago associated the victims to serial killer Terry Rasmussen they had never identified the victims. By using genetic genealogy police in 2019 were able to finally identify the victims as Marlyse Honeychurch and her daughters Sarah McWaters and Marie Vaughn.

As you can imagine privacy watchdogs are all over the issue of law enforcement having access to private sector databases.

Genetic privacy

Ancestry and 23andMe are the largest consumer testing providers. Both companies have policies in place that prevents law enforcement from having direct access to the databases. However, customers of both companies, hoping to grow their family tree, can upload their personal results to public databases. This is where law enforcement has access to the DNA results. Ancestral DNA companies are working to find balances. While they do not want to allow complete access to databases for misdemeanor crimes, companies do allow access for violent crimes. As law enforcement finds success they will rely more on these DNA databases.

Opponents of this kind of police work feel that the use of relatives DNA on public databases constitute unwarranted searches and thus illegal under the Fourth Amendment. State legislatures are paying attention as Maryland and a few others have had bills introduced to bar police from using relatives DNA to track criminals.

Fingerprints, DNA, facial, hair, optical, these are all methods of identifying humans as individuals. All were new sciences at one time. All have made their way through the world’s courts as legal ways of making identifications. They are most certainly other scientific discoveries that will be added to the list. The question is and always has been, Where does the privacy of individuals get compromised in the name of justice?

Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

The mighty have fallen

One of the biggest and repeated subjects of news for 2017 were charges of sexual harassment. Most notably the coming forth of victims in the entertainment industry. The topic so dominated the news that Time magazine made their 2017 Person of the Year all the women who came forward about sexual harassment.

Although it seems obvious, not everyone may know what constitutes sexual harassment. Especially in businesses with a small, familiar workforce. This is not a defense of the aggressors. Any reasonable person knows that touching and sexual comments have no place in the workplace, especially between supervisors and employees. But lesser degrees of harassment too include verbal, written, or pictorial may be thought of as accepted behavior. When in fact they meet the definition of harassment. This applies to the harassers and the victims. Victims either don’t realize that simple offenses rise to the level of complaint or do not feel that they can report the smaller incidents. Lines get crossed everyday.

Small business owners have to stay educated on changing cultures, how to protect themselves, and provide safe work environments. What was perceived as an acceptable work environment in the past is not today. This post hopes to address some of those questions.

Definition

Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964, which applies to all employers with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as:

unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature and also can include offensive remarks about a person’s sex (male/female/orientation). Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In 2016, EEOC received 6,758 charges alleging sexual harassment. Although the majority of cases are female victims, males filed 16.6% of the charges. The EEOC figures do not include charges and complaints filed with state authorities. Also not tabulated is the number of cases handled within the workplace and, of course, unreported cases.

Mind of the harasser

Dr. Ellen Hendriksen, provided four characteristics of a sexual harasser in an article written for the Psychology Today website Four Psychological Traits of Sexual Harassers November 9, 2017. Briefly, Dr. Hendriksen described harassers as someone who has a personality that enjoys exploitation, deception, and manipulation. They have the ability to disengage morally allowing them to justify their actions and create their own version of reality. Next harassers are employed in a male dominated field. This is important because women are the minority gender and more significantly targeted as victims of harassment. The last characteristic described by Dr. Hendriksen is an overall hostile attitude towards women. Harassers justify their actions as being normal and/or deserved. They feel they have done nothing wrong. Dr. Hendriksen summarizes by saying that, “harassment indicates a willingness to exploit and manipulate as a way to maintain or gain power. It demonstrates carelessness toward the victims and aims to keep them in their place.” Which might explain the powerful men who have had their harassment exposed.

Not reported

The majority of victims do not feel safe reporting any inappropriate behavior. Fear of retaliation is one of the main reasons victims do not come forward, that and humiliation. #WhyWomenDontReport has been viral several times since being started as an outlet for victims to share their stories. Just reading a few of the posts explains why victims may not report attacks for years or decades. Most of the posts support the reasons of retaliation and humiliation. Others relate how the victims believe that nothing will happen even if they do report the incident.

Unless the aggressor is publically boisterous with their behavior incidents of harassment rarely have witnesses. The strength in the complaints comes from the victims speaking out and sharing their stories. Even if complaints are made, the aggressors do not usually see a courtroom. Many states do not have specific sexual harassment laws or even workplace nondiscrimination laws. Charges are usually filed under the umbrella of other laws or in civil court. In order to get the complaint heard at the federal level charges must be filed with the EEOC. This is why you see quick dismissals with lawsuits filed at later times.

Companies are protecting themselves from legal action as well as their brand. They do not want to be seen as having a culture of harassment. If it can be shown that a company encouraged or did nothing to stop sexual harassment the employer could find themselves in court along with the aggressors.

Training and Education

A 2012 Supreme Court ruling held that a company could not be held responsible if there was an exercising of reasonable care to prevent and correct sexual harassment incidents.

A lot of small businesses view training as requirements for certifications or skills associated with the job functions of their employees. They sometimes miss the need to educate employees on issues facing the workplace. Employees not only need to improve their job skills, they need to learn how to conduct themselves in the workplace.

Be proactive. Don’t wait for a legal requirement to provide training. Twenty-five states have no requirements for sexual harassment training in the workplace. The other half range from: encouraging employers to provide training - only training supervisors - training for all employees. Some states, such as Maryland, will take into consideration a company’s training and education efforts when hearing complaints of sexual harassment. If a complaint is made against your business, you’ll want to be able to show the steps taken to prevent incidents and support provided to victims.

Training and education of employees should be held at regular intervals. Ensure all employees are made aware that any type of harassment will not be tolerated. They have to know that owners/executives/managers do not approve of and will not tolerate any form of harassment. Do not assume that everyone knows what constitutes harassment. Educate everyone on the basic definitions and provide the outlets necessary to receive and process complaints.

Have outreach efforts to ensure victims feel they have a safe environment in which to report incidents. This goes back to the company’s stance on the issue. If victims do not feel that they will be taken seriously and no action will be taken against aggressors, they will not file complaints. And even though a training and education program is in place, a hidden culture may still exist.

All reports must be taken seriously and employees must feel that they can make reports against any employee or supervisor without fear of retaliation. Which itself is a crime. But it is not enough to only take complaints. Management must conduct serious investigations and implement penalties when warranted.

Please share this and any post. See are blog archive for other posts on this topic.

Health history discrimination May 2016

Languages spoken? June 2017

Ideologies in the workplace August 2017

Workplace safety November 2017

Ideologies in the workplace

Watching what unfolded in Charlottesville in mid August I noticed one of the protestors wearing clothing marked with the Verizon logo, their uniform. Later Verizon issued a statement stating that the company in no way supports the white supremacist groups or the hate and bigotry associated with the groups. It may be sometime, if at all, when we hear if this person was an actual employee and was disciplined or terminated. Obviously, this person, whether an employee or not, put Verizon in an awkward position.

Publicly representing the company for which one works does limit what an employee can do in their off duty hours. Some businesses have policies specifically stating that employees cannot express political views while representing the company. What the employee does off duty when not representing the company and whether the company can control these activities has come under court scrutiny. Most notably in the use of medical marijuana. (Smoke ‘em if you got ‘em {Marijuana in the workplace})

If an employee is wearing the company uniform and participating in activities that go against the company values the company may have legal precedent to terminate or discipline the employee. The question that came to mind is what if the employee keeps the off duty activity anonymous? They do not espouse their ideologies at work and is a solid employee/coworker. Somehow their off duty activities are exposed and now the workplace becomes a hostile environment. Are there grounds to terminate that otherwise productive employee?

What are employer’s rights?

Allen Smith, J.D., wrote an excellent article for the Society For Human Resource Management website, Can or Should Employers Fire Employees Who Participate in Hate Groups? Smith reinforces what I have found, that the answer is not clear. When what employees do off duty creeps into the workplace several legal precedents have to be considered before an employee can be fired. Allen Smith makes the following points.

No federal law is violated if a worker is fired for being a member of a hate group or verbally expresses beliefs. Courts have rejected KKK members claim of religious protection under Title VII of the Civil Rights Act of 1964. Freedom of speech protections under the First Amendment does not apply to private employers.

Most states are work at will states meaning that employees can be terminated for any lawful reason. California, Colorado, New York, and North Dakota have laws protecting workers against being discriminated against while participating in lawful activity outside of work. However, if it becomes known at work that an employee was participating off duty in a hate-based protest, an employer may choose to terminate. Basing their action on violations of non harassment policies.

When dealing with customers who are offended by an employee’s ideologies, businesses have to consider the impact on the business. If the person continues to be employed will that affect business? Or is firing the employee at the risk of being sued better for the company?

Human resource issues are not cut and dried. Even though similar issues may have arose in the past, each case must be examined on their own. Always contact an employment law attorney before making termination decisions.

Languages spoken?

As a customer of almost any business there is a high probability that you will interact with someone who speaks in accented English or speaks little English. As an employer, there is also a high probability that your job applicants will speak in accented English. Customers should to be patient and polite; Employers need to be cautious of not violating the law.

A colleague had a difficult time placing an in person order with a store employee who spoke accented English. They asked me if it was illegal for employers not to hire people who had difficulty clearly communicating with customers. The short answer is, yes. Any employer that discriminates against an applicant for their accent or attempts to establish an English only policy without establishing a business necessity would more than likely be in violation of Title VII of the Civil Rights Act of 1964. Employers cannot use English only policies to discriminate against employees or prospective employees due to their accent or lack of English skills.

A lot of small business owners that I’ve encountered do not have documented hiring policies. They have a basic understanding of hiring laws, but still hire who they “like” with little documentation. Establishing a hiring component such as business necessity can be laborious for small businesses.

The Equal Employment opportunity Commission explains language discrimination as follows.

Discrimination Based on Accent

Treating employees differently because they have a foreign accent is lawful only if accent materially interferes with being able to do the job.

• Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English.
• Jobs that may require effective oral communication in English include teaching, customer service, and telemarketing to English speaking clients.
•   If a person has an accent but it is able to communicate effectively and be understood in English, he or she cannot be discriminated against.

Speak English Only Rules

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. 

•  A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
•  An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
•   Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
•  Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

The complete EEOC pamphlet on immigrant rights can be found at
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws

State laws may also apply to these hiring situations. Employers should always consult their employment law attorney before establishing any hiring requirements.

See the blog archive for other posts about hiring.

Hiring in the Millennial Age May 2017

Health History Discrimination May 2016

FCRAwhat? March 2015

Have you ever been convicted of a crime? February 2014

Health history discrimination

What an employer asks on employment applications regarding criminal history and how it is used, has long been scrutinized by the Equal Employment Opportunity Commission (EEOC). In recent years when an employer asks about criminal history has been at issue (Should the box be banned, February 4, 2013). Employers are also getting caught on health history questions, although the EEOC has been monitoring that form of discrimination for over twenty years.

EEOC and ADA

The Civil Rights Act of 1964, Title VII, made it illegal to discriminate based on race, color, religion, sex, or national origin. The EEOC was created in 1965 to enforce the Civil Rights Act but had to authority. In 1972, Congress gave the EEOC litigation enforcement authority. The American with Disabilities Act was passed in 1990 and the EEOC was given enforcement authority over Title I of the Act, which includes the employment discrimination provisions. The ADA places restrictions on employers regarding asking job applicants to answer medical questions.

EEOC v. Grisham Farm Products, Inc.

In a recent case the EEOC, on March 22, 2016, filed suit in the United States District Court against Grisham Farm Products, Inc. alleging that its employment application violated the ADA. (Equal Employment Opportunity Commission v. Grisham Farm Products, Inc. 16-cv-03105)

In the case, an applicant applied for a warehouse position at Grisham. The Grisham job application contained forty-three “yes or no” health related questions. The questions were similar to what would be seen on an initial doctor visit. The Grisham application inquired whether in the past ten years the applicant has had allergies, arthritis, bladder infections, eating disorders, gallstones, sexually transmitted diseases, etc. The application also inquired about prior hospitalizations, HIV infection, treatment for alcoholism, and whether the applicant consulted a doctor, chiropractor, therapist, or other health care provider in the past two years.

The application’s Health History section stated in large letters, “All questions must be answered before we can process your application”. The applicant did not answer all of the questions and telephoned Grisham Farm. A company representative said that if the health history section was not fully completed, it would not be accepted.

The EEOC claims that the applicant believed he did not have to reveal his medical history to any potential employer. The case is still in litigation.

Review your hiring process

Employers should be frequently reviewing their hiring process. They also need to follow EEOC decisions as these decisions occur frequently and affect the hiring process. As with questions regarding criminal history, there are parameters as to what health questions can be asked and when they can be asked. The EEOC is clear that pre-employment health inquiries can be made only after a conditional offer has been made, if the inquiries are made to all applicants for that job category, and the inquiries are job related and consistent with a business necessity.



May 9, 2016-The EEOC released it's latest guidance on leave as a reasonable accommodation under the ADA. Employer-Provided Leave and the Americans with Disabilities Act