CONVICTED? NEVER CONVICTED.

Note: This article was originally posted in 2014. It has been updated with new information.

Owning a business investigation company we often had clients who would come to us to perform self-background checks. They had had an indiscretion long ago and wondered if it would appear during an employment background check. Or they had records expunged and wanted to make sure that searches would not reveal the records. Every now and then we would find records that the client swore had been expunged.

The search techniques used and the diligence of the background check company can often uncover records thought to be vaporized by the delete key. As records become more digitized it is increasingly more difficult to erase yourself from the digital world. Just like the picture from a sophomore year party that a friend posted on your favorite social media page, once it’s out there-it’s out there. Removing it can be difficult and time-consuming.

EXPUNGED?

Similar to those unwanted pictures, records of your past, even expunged records, can be found in the digital world. The legal term “expunged” has different definitions in different States. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed” but the other details of the case are the same. In Maryland, it means to remove from public inspection. Although records are expunged, they are filed somewhere.  

Once you receive an order to have your record expunged and it is served, the judicial system possessing the record will remove it from its online court access. Anyone searching your name would not see the record. Contrary to what the fast working TV detectives would have us believe, there is not one government sourced database of criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. The closest to any semblance of a national database is the FBI’s fingerprint database, to which only law enforcement has access. See “National” record checks  Third-party vendors must rely on court reported data offered by State and local governments. 

As with your personal information and shopping habits, court data is downloaded, bought, and sold every day. Vendors collect the data from several sources. As the data is shared and stored and stored again it ends up in narrower access points allowing for the production of a single report.  If the vendor then resells that report, the record moves to another database. You get the idea. Just like the unwanted picture, although expunged from the government files, your record is sitting in who knows how many vendors databases waiting to be accessed.  

REMOVING THE RECORD 

The criminal record you had expunged was downloaded, bought, shared, compiled, stored, all the digital speak long before the record was expunged. The best, and least expensive, way to rid the record from existence is to deal with the source vendor directly. Most companies that deal with personal information are forthright about the data that they dispense and pride themselves on the accuracy, which means they are more than willing to help. Sending them a copy of the expungement order along with a request to have the record removed usually will suffice. The problem is finding all the places where the record is stored. This can be a tedious and long process for the individual. There are companies that will chase the record and do the work for you, but of course, fees are involved.

DISCLOSURE

Cities and states throughout the U.S. have enacted laws banning the criminal history question from employment applications. See Ban the Box 

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 (Previously was five). Also, employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

The bottom line is, job seekers cannot be 100% sure that an expunged record will not turn up in a background search. If unsure, be honest about the existence of a record with the requester. Provide copies of the expungement order when the record is requested. However, know your rights within your state and handle the criminal records question per the law. You may not be required to answer.

Refer to the blog archive for more articles about criminal records in Employment

Smoke 'em if you got 'em? {Marijuana in the workplace}

Note: This article was originally posted in 2017 and has been updated with current information on the topic.

Oklahoma passed a medical marijuana bill in 2018 becoming the thirtieth state (Including Maryland) to do so. State by state the legalization of marijuana for medical and recreational purposes is gaining ground. The chances of employees being high at work are definitely increasing. Businesses are scrambling to adapt.

Decriminalization v. Legalization

So far thirteen states have decriminalized marijuana, allowing recreational use. Up from just eight in 2017. Those are Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, and Rhode Island. Nine states have legalized marijuana for recreational use (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington) 

While this legislative activity is taking place on the state level, the drug still remains illegal under Federal law. In fact, it remains a schedule I drug alongside opiates and synthetics drugs. The court battles that were expected with the U.S. Justice Department after Colorado legalized marijuana have not occurred.

Decriminalization does not mean legalization. Decriminalizemeans that possession of small amounts no longer carries criminal penalties. Most states offer a civil violation or no violation at all. Legalizedmeans that marijuana is completely legal to possess. In this case, states have set limits as to the amount that can be possessed and qualifications regarding trafficking.

High on the job

A survey of 10,000 California cannabis users revealed 58% of working professionals use daily and 31% consume while working. (Eaze Insights)

Some businesses not only allow the consumption of marijuana at work, but they also encourage it. Those that do say that it helps employees with stress and anxiety promoting longer work days and creativity. It should be noted that these businesses are mainly in the legal cannabis industry or tech fields.

What is at odds are company drug policies and making accommodations for those with disabilities. Companies want to be inclusive but want to maintain standards as well as workplace safety. Medical marijuana users are looking to the American Disabilities Act for protection.

American with Disabilities Act

The American with Disabilities Act  (ADA) was signed into law in 1990. Succinctly, the ADA prohibits employers from discriminating against those who are disabled and requires employers to provide reasonable accommodations to a qualified individual with a disability to perform the essential duties of their job. Illegal drug use is not covered as a disability. However, the ADA does allow for the use of drugs taken under the supervision of a health care professional. Marijuana may be legally prescribed under state law but remains illegal Federally. Then there’s the Drug-Free Workplace Act of 1988 requiring that Federal contractors provide drug-free workplaces as a condition of receiving a contract.  The ADA states that employers can require employees to conform to the Drug-Free Workplace Act. Further, under the ADA drug testing is not considered a medical examination, allowing employers to test for the use of illegal drugs. 

What the courts have found is that while marijuana remains illegal under federal law the ADA cannot be applied to individuals with disabilities. However, state disability laws may apply in states where medical marijuana use has been legalized.

Court challenges

Rights of the employer and the employee vary state by state. As examples: Arizona, Connecticut, Illinois, Minnesota, and New York laws prohibit employers from discriminating against employees who use medical marijuana and must make accommodations, some further citing-unless the employee is under the influence at work. Florida’s recently passed law does not require an employer to accommodate on-site medical marijuana use. California passed Proposition 64 in 2016, which allows for the recreational use of marijuana. However, the law protects an employer’s rights to enforce workplace drug policies. Rhode Island’s law protects the employer’s right against accommodations for on-site consumption but protects the medical marijuana cardholder against hiring discrimination. 

A 2017 Rhode Island court case ruled that employers could not refuse to hire medical marijuana cardholders even though the person would knowingly not pass the employer’s pre-employment drug test required of all applicants. (Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, Rhode Island Superior Court, May 23, 2017)

Another twist to the saga is the off-site or off-duty use of marijuana which may be legal in the specific state but against company policy. In one of the first court cases of off-site medical marijuana use, the Colorado Supreme Court heard the case of Coats v Dish Network in 2010. The court upheld the firing of a man who failed an employer random drug test for marijuana use. Briefly, in 2010, Dish Network fired a telephone operator who was also a medical marijuana patient after he failed a random drug test. Although the employee claimed that he never used marijuana at work nor was he ever impaired while at work. The case was the first to look at whether off-duty marijuana use, legal under Colorado state law, is protected by Colorado’s Lawful Off-Duty Activities Statute. The statute states that employers cannot fire employees for doing legal activities while not at work. Although medical marijuana use is legal in Colorado, the court ruled that its use is still illegal under Federal law. The ruling supported employer rights to enforce their drug policies. Since this case, courts in California, Oregon, and Washington have also ruled against employees. 

In July 2017 and went against the employer. In Barbuto v Advantage Sales and Marketing, LLC the Supreme Judicial Court of Massachusetts ruled in favor of an employee to use medical marijuana outside of work. The employee claimed that since they have an ADA qualified disability (Crohn’s disease) the employer must make accommodations for an employee to use medical marijuana off duty. The ruling was based on the state’s anti-discrimination law. The court rejected the employer’s argument that marijuana is illegal under Federal law and to allow accommodations would be unreasonable.

Maryland

Maryland is still getting going on its version of medical marijuana. The law was passed in 2013 and took effect in 2016. Dispensaries began opening in 2018. Maryland decriminalized possession of fewer than 10 grams of marijuana in 2014.  Marijuana is still considered illegal but possession of smaller amounts will result in a civil citation rather than arrest. Each year since there have been bills introduced to further decriminalize marijuana. In 2016, a law passed making possession of paraphernalia a civil offense. In 2017, those convicted of marijuana offenses may petition to have their records expunged. 

What to do, what to do…

While the use of marijuana is becoming more openly acceptable in society and states have either made it legal or decriminalized, businesses are still within their legal rights to set drug use policies and restrictions.

Confused? Don’t feel bad. It’s a tricky topic that is evolving almost monthly. Employer’s need to have hiring policies as well as policies to guide employees. These policies have to be living documents and open to change. Having employees and dealing with human resource issues is difficult, especially for small businesses. The rules are constantly changing. There will always be challenges to any policy or rule. You have to stay ahead of the curve and aware of what’s taking place. 

See the blog archive for other posts regarding workplace discrimination and medical marijuana.
Which came first... February 2017

Languages spoken? June 2017

Ban the Box update August 2016

Health History Discrimination May 2016
Medical marijuana in workplace May 2013

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

New Maryland laws

On May 12, 2015, Governor Hogan signed into law two bills that will affect pre employment screenings. These laws will take effect on October 1, 2015.

• Maryland Second Chance Act of 2015-Authorizes individuals who have a non-violent, misdemeanor criminal record to petition the court to shield court records and police records after a period of three years under certain circumstances and conditions.

• Criminal Procedure - Expungement of Records-Arrests and charges that did not result in a conviction may remain eligible for expungement, regardless of subsequent convictions.

            Mazzella-Investigative Solutions, LLC constantly monitors changes to statutes and regulations as they relate to employment law and pre employment screenings to ensure you are receiving the best possible service.

Services

Enforcing company policy

The National Labor Relations Board ruled in favor of an employee fired because of a rant on Facebook against the employer. Perhaps more significantly, the company cited violation of its obscenity policies, which the NLRB disregarded because the policy was found to have been unenforced in past instances. Underscoring the importance to enforce policies regularly and fairly. Not just when it is convenient for management. 

The case

By a two-to-one vote, a three-member panel of the National Labor Relations Board upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments, including strong obscenities that were personally critical of a company manager. (Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.) 

The company’s employees expressed interest in union representation, based in part because of concerns that management treated them “disrespectfully and in an undignified manner.” Those efforts resulted in a successful organizing campaign, after which the Union was certified as the exclusive collective bargaining representatives. Two days before that election a long-term employee was working as a server at an event. During the cocktail service a company manager allegedly approached and in a loud voice and in front of guests addressed the employee and two other employees, using an unnecessarily harsh tone, and waiving his arms. Upset with the manager’s treatment, the employee took a break and, outside of the banquet facility, posted from his phone a message to his personal Facebook page. The message referred to the manger as a “NASTY M***** F***er” and a “LOSER!!!!,” stated “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!” After being made aware of that posting, the company fired the employee for violation of its obscenity policy. 

Decision

The panel determined the firing violated the NLRA because the Facebook post was deemed to be protected concerted activity. Although the company argued that the employee had violated company policy regarding obscene language, it was determined that since 2005, the company had issued only five written warnings to employees who had used obscene language, and had discharged no one on that basis. Further, it was found that the employee's use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by the company.” 

The NLRB first ruled on “Facebook firings” in October 2012. The NLRB has ruled that postings on social media regarding the way employees are treated or working conditions are protected concerted activities under the National Labor Relations Act. The company’s defense of policy violation in the aforementioned case did not stand up because the policy itself was overlooked.

Employee handbooks and rules are necessary for a safe and favorable workplace. However, when violations of policies are overlooked the workplace can become a dangerous and/or hostile environment. Additionally, employee morale tends to be low because of managerial indifference or inequitable enforcement of violations. When policies are enforced as a “CYA” measure, reviewing entities rarely rule for the company.

www.mazzellainvestigations.com/informationresources.html

A good interview

The interview is a major part of the hiring process. In addition to being encouraged by the EEOC, it gives the employer a chance to get a feel for the applicant’s character and a chance for the applicant to be forthright about their resume and anything in their past that may pertain to the job for which they are applying.  If there is a discrepancy, than a chance to elaborate.

We have clients that are not surprised by the findings of screenings, because they have conducted thorough interviews and learned of past indiscretions prior to conducting a screening. Sometimes though the applicant downplays, tries to hides, or refutes an incident. That is when a more detailed examination of the facts needs to takes place. 

Criminal record findings are based on the personal data supplied by the client. The results are not verification of the record. Once the person is identified with the record the original court records should be retrieved for actual verification.  Life is not as television would have us believe. There is not a single repository for criminal records. Records are not always found in the employers home State. To locate any and all records, queries should be made Federal, State, and even local courts.  ("National" record checks)

Here are some examples of how criminal records work with a good interview. Why are these special? It’s what they didn’t and did tell their prospective employers that makes the point. All were interviewed prior to the request for a pre employment screening. Some were forthright and explained past indiscretions. Others rolled the dice. 

• Fully aware and consenting to a pre employment screening, the applicant admitted to being arrested for possession of marijuana during college, a lesser offense. When the results returned multiple counts of more serious offenses, the applicant continued to deny the convictions. State (Not Maryland) and county record searches revealed more serious charges, but experience tells us that sometimes the charges read more serious than the actual event. Further research of local court records revealed that the charges were accurate. The applicant was arrested and convicted of selling drugs to an undercover detective. A little more than mere possession.
• The applicant said nothing of past criminal activity. Searches revealed multiple felony drug arrests and convictions. However, FCRA guidelines prohibit the use of criminal records more than seven years old in consumer reports. The deal breaker on this one was not the criminal record but truthfulness and character. The applicant arrived at the interview with an apparent injury saying that he was currently on medical leave, expected to return. During employment verification it was learned from the employer that the applicant was fired weeks before for skimming money.
• Maryland and out of State searches revealed no records for the applicant. However, our routine searches of the Federal court system revealed past arrests. Again, FCRA regulations prohibited the reporting of the records. When the report was provided the client said that the applicant had admitted to the past federal charges during the interview process. The client wasn’t worried about the long ago indiscretions, but was more impressed with the applicant’s honesty and character.

The Equal Employment Opportunity Commission suggests that the report be presented to the applicant and the applicant allowed a chance to address the findings of the report. Before a decision of hiring is made. Allowing the applicant to talk about themselves can yield a wealth of information about the prospective employee. Allowing them a chance to honestly represent their past or defend the findings can yield much more.

Mazzella Investigative Solutions-Services

FCRwhat?

Most of our small business clients have never conducted pre employment screenings. As the economy has tightened the need to hire the best suited candidate has become more of a focus (The cost of a bad hire can be upwards of $50,000). So smaller employers have sought to conduct pre employment screenings to give them more information about their candidates. They know the hiring basics (formal employment applications, conduct interviews, etc) but rarely have they delved into an applicants’ character and past. When they do, most have fallen into stereotypical hiring process traps that put them in jeopardy of a court visit. Last year alone there were millions of dollars awarded in class action suits for Fair Credit Report Act (FCRA) violations.

Some common mistakes employers make are:

• Failure to have a disclosure of the screening separate from the application
• Burying the disclosure of the screening with application questions
• Failure to provide proper pre-adverse action and/or adverse action notices
• Failure to include a copy of the report or a Summary of Rights with the pre-adverse notice

Small business owners don’t have the benefits of human resource departments. They have either just started a business or have been in business for many years. Whichever the case, the Fair Credit Reporting Act and guidelines set by the Equal Employment Opportunity Commission are news to them. They are not intentionally trying to violate the rights of potential employees; they just don’t know the rules.

Fair Credit Reporting Act 

The Fair Credit Reporting Act  (FCRA) was passed by Congress in 1996 and went into effect September 30, 1997. As the Act is titled, it was initially passed to regulate the collection and use of credit information by credit bureaus. The goal being to provide consumers a way to access information contained in their credit bureau files. Due to the ever growing amount of incorrect information contained in these files, the act also provided a mechanism in which consumers could dispute the records. Basically, it is designed to protect the privacy of consumers and to guarantee that the information supplied by reporting agencies is as accurate as possible.

The FCRA has been amended several times since being passed. With negligent hiring and privacy issue complaints increasing since the passage of the Act, the FCRA was amended to apply to all consumer type reports. Too include the pre employment screenings completed during the hiring process. A consumer report (the information collected during the pre employment screening}, contains information about the applicant’s personal and credit characteristics, character, general reputation, and lifestyle.

The FCRA also provides procedures for obtaining consumer information and how it is to be used and disseminated during a pre employment screening. The Federal Trade Commission enforces all aspects of the FCRA.

Equal Employment Opportunity Commission

The FCRA regulates how consumer report data is collected and used. Part of that data are criminal records. The Equal Employment Opportunity Commission (EEOC) ensures that the information found in the criminal records collected during the pre employment screening is not used to discriminate against the prospective employee. This is where the employers’ fall victim-How they react to and use the criminal record data.

The Civil Rights Act of 1964, Title VII, states that employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job. The EEOC is quite clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.” In making a decision, the employer must consider the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.

The FCRA states that the applicant has a right to view the information contained in the consumer report and have a chance to dispute the record.  Following this lead, the EEOC encourages the employer to personally interview the applicant and allow them the chance to refute and/or explain the criminal record.

It’s all about being fair. The employer wants to make the right decision to avoid later costs and problems. The applicant is seeking employment. As with the decisions made in other areas of the business, the employer needs to make informed decisions by reviewing and understanding all of the information gathered during the screening process. This review process should include a personal interview so the employer has the chance to hear the rest of the story.

Scroll through our Information and Resources page regarding the FCRA, EEOC, and for helpful information.

Internet intelligence

Twenty-five years ago it was the personal computing industry’s goal to have a computer in every home. Today, over 65% of Americans carry computers with them in the form of smartphones. With personal computing permeating our lives (we check our phones over 50 times a day) Internet use has grown exponentially. Questions and facts are all answered and checked during conversations. It’s safe to say that there is nothing that cannot be found on the Internet. This includes details of one’s personal life.

I read it on the Internet

People become Internet detectives.  Quick to check friends, family members, and the pasts of love interests. Not sure what will be found, searchers often dangerously jump to conclusions, without properly vetting the information. In addition to the misinformation that circulates on the Internet, most people don’t understand exactly what they’re reading. In the case of criminal records one has to understand the difference between arrests and convictions. There are also terms of probation that affect the final dispositions. When criminal records are returned during a search, how do you know it’s the same person? Quick Internet searches, without proper analysis, can cause embarrassment as well as legal action.

How well do you know someone?

Employers often say that they only hire people they know or for whom others vouch, apply that to your personal lives. How well do you really know someone? Other than someone you are with 24/7/365, everyone has secrets. Has anyone ever thought so much of your relationship that you were listed as a reference to obtain a government clearance? Answering those questions about social habits and character can really open your eyes as to how well you really know the person.

Do not be so quick to pass judgment on what you find on the Internet. You might cause someone unnecessary pain or set your business up for a court visit.

Mazzella Investigative Solutions-Services 

Just checking local Internet records is not enough

Service industries that put employees in personal/private contact with clients and/or a client's property are being scrutinized for not only failing to conduct background checks but for doing them improperly. Most recently a national ride sharing company received criticism for both. At first, the company was not screening its drivers, which resulted in employing drivers with violent criminal pasts and questionable driving records. They upgraded their screening process, however, the background investigations were not thorough. Checks were only being made for in State violations with no verification of the person’s identity or the records.

This is just one example of a service industry company not ensuring they have a proper screening process. With Internet access to almost anything, most small employers try to do the background screenings themselves, only checking the local records for which they have access. This is not a thorough background investigation. Much can be missed. Records can exist in all States, at all levels of jurisdictions. Matching records to employees and understanding what the records mean are paramount. (What is the price of not doing a backgroundcheck? July 9, 2013)

Employers need to make sure that their vendors are checking all jurisdictions where the employee lives or has lived, backing up the findings with court records, and verifying that the record is actually that of the employee.

Don’t risk your business by taking shortcuts.

Mazzella-Investigative Solutions

Have you been convicted of a crime?

Screening job applicants to find the most qualified for the job is becoming more difficult. In addition to skills and qualifications, employers are under pressure to also consider safety for their current employees by not introducing a potentially violent person to the work environment. Employers conduct pre employment screenings, which include criminal records, to provide them with the information necessary to make those decisions. However, most employers fall into the trap of making decisions based on the findings of the screening, and not the qualifications or character of the applicant. This type of hiring practice can open the employer to litigation and sanctions from Federal authorities.

Law enforcement strategies of the past twenty years has gone through different variants of zero tolerance policing and stricter enforcement of quality of life crimes. Then there is the ongoing war on drugs. These strategies have increased the chance that employers will encounter an applicant with some sort of criminal record. It is becoming the rarity, rather than the norm, that applicants would have no involvement in the criminal justice system.

A recent study published in the journal Crime and Punishment addressed the number of young people who have some sort of arrest record, other than traffic. The findings were based on an annual Bureau of labor Statistics survey of 7000 young people who answered questions between 1997 and 2008. The authors found that 49% of African American men, 44% of Hispanic men, and 38% of Caucasian men have been arrested by the age of 23. For women the numbers were slightly lower-20% African American, 18% Caucasian, and 18% Hispanic.

Ban the box

The “Ban the Box” movement advocates the removal of the employment application question, “Have you ever been convicted of a crime”. Advocates would rather the applicant have the opportunity for a face-to-face interview before the discussion of criminal records or background checks take place. Ten states currently have statewide “ban the box” laws for public employment applications. Of these ten states, Hawaii, Massachusetts, Minnesota, and Rhode Island have banned the box for private employers as well.

There are currently fifty-six jurisdictions in twenty-two states that have enacted ban the box laws. This number is growing annually, in November 2012 there were forty-six. These jurisdictions in the Mid-Atlantic region have enacted laws: Maryland, Baltimore, Wilmington, DE, Washington, D.C., Philadelphia, Newport News, Norfolk, Portsmouth, Richmond.

Corporations are beginning to catch on also. In October 2013, Minnesota based Target Corporation enacted policy that removes the criminal question from their application.

The Equal Opportunity Employment Commission (EEOC) has endorsed the idea of “banning the box”. The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention, stating, “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.” The EEOC specifically addresses the consideration of criminal records in its updated Enforcement Guidance published in 2012. The guidelines suggest that employers consider the nature of the job, the seriousness of the offense, and the length of time since the offense occurred. Also, employers should include an individualized assessment that allows the applicant to speak to the circumstances of the record. The EEOC is specific that criminal records only be used as they pertain to the job being sought and cannot be used against an individual without the consideration of other factors.

Banning is a strong word and does not mean that employers cannot view criminal records during the hiring process. Employers do have to be educated on how the records are used. Realizing the difference between an arrest and conviction and understanding the EEOC guidelines and Fair Credit Reporting Act as they apply to hiring will keep employers from incorrect use of records.  

The evolving school of thought is that criminal records be discussed after the personal interview and review of qualifications. An established hiring process and detailed documentation as to the decisions made all go a long way in supporting the employer’s final assessments.

Stranger danger

When someone knocks at the door, most people are very guarded as to how they answer. Either cracking the door or speaking through a storm door, we don’t let random strangers into our homes. However, because we pay a company for a service we allow strangers into our homes. We are so guarded as to our Internet privacy, yet we allow complete strangers to be alone in our homes. Once the worker arrives, are you the type of customer that follows them around, or do you leave them alone to do their work? Many people don’t feel comfortable looking over the shoulder of the worker, but maybe you should.

Take into account a few stories from the headlines.

•  2011-Anne Arundel County Police raided a Pasadena home and charged the owner of a cleaning service with theft. Police recovered thousands of dollars worth of jewelry that had been allegedly stolen from clients
• 2011-Milford, CT home contractor sexually assaulted client
• 2012-Maryland housecleaner was caught stealing jewelry from clients
•  2012-Hamptons, NY dog walker caught stealing jewelry from clients
• 2012-Missouri landscaper stole $200,000 worth of jewelry from clients
• 2013-NJ satellite installer sexually assaulted a client’s child
• 2013-NH home care provider kidnapped and sexually assaulted male client

TODAY National Investigative Correspondent Jeff Rossen reported that no law requires background checks for service workers. Yet, we allow them, alone, into our homes without questioning the company’s policies. After a service worker murdered her daughter, Lucia Bone began a company fighting for tougher restrictions. The full article can be viewed at our Information and resources page.

Employers have to walk a fine line when hiring and protecting their company from lawsuit, either for an improper hiring process or later injury to a client. EEOC guidelines protects against discrimination in the hiring process. One of those protections specifically addresses criminal background records and the records use in the hiring process. The applicant should be judged on their resume not their past criminal history. Unless an employer can show a reason why the applicant’s specific conviction, not their record in total, would disqualify them from the job the employer is discouraged from using the applicant’s record against them. 

This is not a bad thing. National Institute of Justice studies revealed that one-third of all Americans have been arrested by age 23. With those kinds of numbers employers are bound to encounter applicants with criminal histories. To assist in the rehabilitation process some companies hire applicants recently released from prison and there are benefits from doing so. Many former prisoners are highly skilled or are freshly trained for specific jobs. Giving them a start helps them build their resume for life after prison. A company should be forthright to its customers regarding their hiring policies and screening process for the employees that will be coming to customers homes.

Background checks for certain professions are needed. Specifically, when the employee privately interacts with the customer or is alone in the customer’s home. EEOC guidelines do allow for the employer to screen candidates. As long as the job specifications as clearly stated, the applicant is afforded ample time to explain, and the reasons for denial are well documented. Companies can bolster customer confidence by providing them with certification that employees have been checked.

Hiring the wrong person puts a great liability on a company.  Either from internal issues/violence or if that employee causes harm to a customer. There are no crystal balls that predict how or when an employee will go bad. There are numerous incidents of people with no criminal past being tempted while on the job to commit some sort of crime. Some carry a motive for the crime they only await the opportunity. Following EEOC guidelines on the use of criminal records allows the employer to make informed decisions on hiring and candidate placement. By conducting background checks and putting the right person in the right position, companies are doing their due diligence to protect the client against a criminal act.

Mazzella-Investigative Solutions