Why be concerned about criminal records?

True story. An applicant for a manufacturing job looks good in the interview, and the hiring manger is prepared to make an offer. Human Resources sends the background package to Employment Screening Resources (ESR) for a standard background. The applicant it turns out, has over ten criminal convictions. They range from assaulting police officers, to selling drugs, to possessing weapons to assault on his girlfriends. But for the standard ESR background check, that person would have been a member of that company’s workforce. What a nightmare.

Another true story. A health care facility makes an offer to a health worker with access to drugs. The ESR standard check disclosed two serious drug related convictions. That person came within an inch of having a key to the drug locker.

Another true story: A large firm was about to make a job offer to an applicant for a highly responsible financial position. The applicant failed to disclose serious offenses that ESR immediately detected. That firm had almost put their future into that applicant’s hands.

These and many other true stories from the ESR files show why firms need the protection of a pre-employment background check. Unfortunately, not every firm has a company such as   ESR do background checks. The majority of firms  hire blind, risking workplace violence and financial ruin.

ESR recently found a newspaper article about a transportation firm in the Western United States that hired a driver that sexually assaulted a passenger. It turns out that the driver had recently been released from prison for a sex crime. In the article, the company clamed that it had done everything it could to perform a background check. In order to test the ESR systems, ESR did a background check just based upon the limited information in the newspaper. Within six hours, ESR had the full story on the driver’s background. For very little money, that transportation company could have been saved a great deal of exposure.

In addition, employers have a legal duty to make a reasonable inquiry about who they hire, and to take steps to keep the workplace safe. Failure to do so subjects a firm to major financial exposure for negligent hiring. (Workplace violence will be the subject of a future newsletter.)

No National computer for Employers.

Instead, private companies must obtain criminal records on a county by county basis at the actual courthouse. There are a number of states that have statewide criminal databases (not including California), but the statewide requests often take too long for the hiring process and require burdensome paperwork. In addition, not all statewide depository of records are accurate.  Many state wide systems are only clearing houses for those counties that choose to deposit records. There are no guarantees that all counties are up to date or are even participating. 

An experienced screening company such as ESR has the ability to have public record researchers go to any courthouse in the United States to research whether a particular applicant has a criminal record. ESR generally needs the person’s social security number and birthdate, as well as any other or previous names the person went under.

Obviously, researchers cannot go to every courthouse in the country for every person, since there are over 3,000 jurisdictions. However, depending upon the company’s needs, ESR will send researchers to those counties that should be checked. As a minimum, ESR recommends that an employer check the county of residence and current employment, if different.

For the best protection, ESR recommends that an employer search each county where a person has lived worked or studied for the past seven years. The seven years is recommended is generally recommended given the current state of law.  In November of 1998, congress amended to Fair Credit Reporting Act to do away with the seven year limitation. However, Congress left in tact the portion of the law that provided that in states with a more restricted rules, the more restricted rule would apply.  Since many states, such as California, passed laws that copied the provisions of the FCRA including the seven year limitation in certain instances, there is currently no workable national rule.  For that reason, the seven year rule is still recommended until Congress clarifies the national policy.  

There are some counties in certain states that are available on a database.   However, employers should never use a criminal database for employment decisions, and should always make sure that a screening company is utilizing the most hands-on means available to obtain criminal records, which is usually an on-site search at the courthouse.  There are a number of disadvantages to a database search.  First, the database may not be absolutely current. Secondly, not all counties have criminal records on the database. Third, databases are notorious for being inaccurate.  Fourth, if an applicant’s name does appear, the actual records must still be pulled from the courthouse.  Denying employment based just upon a name in a database without reviewing the actual court file would violate a number of laws and rights of applicants.  Employers who rely on databases for employment decisions are opening themselves up to serious lawsuits.  The bottom line is that an employer who relies upon such a database, and still hires a person with a criminal record resulting in some claim of damages, may not have the legal protection they thought they had.  There would be a considerable legal question as to  whether having used a database would provide evidence of due diligence.  In other words, databases may well not demonstrate that an employer took reasonable care.

Where the employer seeks the full seven-year search, ESR will look in every jurisdiction it can locate, based upon the application, driving record, social security or credit report, and employment verifications. The obvious difficulty is that a person may have a criminal record in a county where there is no indication that the person has had any contact. However, experienced firms such as ESR will look at gaps in employment or residential history to determine if more questions should be asked.

Because the record searches normally take place at the actual courthouse, it can take up to two full days after the order is placed to obtain a report. In many jurisdictions, older records have been placed in storage. Where there is a possible match, additional time is sometime needed to have the local county clerk pull the records from storage. ESR has no control over how long that process may take.

Another important issue is to make sure that the case on file with the court actually belongs to the applicant. That means going beyond just a name match. Court researchers look for things such as date of birth, social security number, driver’s license or some other identify in order to make a match. Because there always the possibility of a criminal record not belonging to the applicant in question, it is important to follow the rules set down by Congress in the Fair Credit Reporting Act. Please see the special ESR report on "Complying with the Fair Credit Reporting Act in four Easy Steps."

Depending upon the position involved, an employer may also want to do a FEDERAL criminal check. The federal court system is an entirely separate court system from the state court. The difference between the two systems is a complicated subject. There can be a great deal of overlap. However, the type of criminal records that most employers are concerned about will normally occur at the state court level. Federal crime can be offenses such as large scale drug cases, bank and financial fraud, or violations of federal laws.

1. An employer may NOT ask about arrests or detentions that did not result in a conviction
2. An employer may only consider convictions or pending cases;
3. There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, or cases where a person participated in pre-trial diversion;
4. An employer should automatically deny employment due to a criminal conviction, but should consider the nature of the offense, whether it is job related, when it occurred and what the person has done since.

For California employers, the various rules are found in the federal Fair Credit Reporting Act, the California Labor Code, the California Civil Code, the rules of the Fair Employment and Housing Commission contained n the California Code of Regulations, as well as federal case law interpreting equal employment opportunity laws and decisions by the federal Equal Employment Opportunity Commission. 

Finally, it can be a form of discrimination to automatically bar employment to a person solely because of a criminal record. The reason is that the use of criminal records may unfairly result in the disproportionate screening out of certain groups. However, an employer can deny employment if there is a sound business reason. The employer should take into account the nature of the job and the scope of the duties, as well as factors about the applicant such as age and time of the offense, seriousness and nature of the violation, and efforts made at rehabilitation.

Often times, it is not the criminal record itself that disqualifies the applicant, but rather the lack of honesty in the application process. Often ties, information honestly disclosed in an interview may have no effect. But if a third party discovers the information, the lack of honesty can be the reason for not wanting to give the applicant the position.

What should a firm put in its employment application to cover criminal records?

How should a criminal record be used in evaluating a candidate?