EmployeeScreenIQ Blog

There have been a myriad of questions that have arise since Massachusetts governor Deval Patrick signed into law new reforms to the Commonwealth’s Criminal Offender Record Information (CORI) law that will have a significant impact on the state’s employers who conduct criminal background checks. To sort through the mess, we enlisted the help of Seyfarth Shaw labor and employment attorney, Pam Devata. Clearly, these reforms represent an effort to help those with criminal records find employment, but will this come at the expense of employers ability to make an informed hiring decision?

Check out our podcast below.

Listed below are some of the most critical changes that will take effect February 6, 2012:

• Employers can no longer ask if an individual has been convicted of a crime on the initial job application (please note that this requirement is set to take effect November 4, 2010)
• Felony convictions older than or prison sentences completed more than 10 years ago will be removed from the system as will misdemeanors older the 5 years
• An employers can only take adverse action after they have presented the candidate with the CORI report
• Any employer that conducts five or more background checks on an annual basis must have a written criminal offender record policy
• Employers must dispose of an individual’s CORI report not more than 7 years after their last date of employment

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If you need a good example of why it is a good idea to conduct employment background checks, look no further.  A former Texas loan officer faces two charges of identity theft because he used clients’ personally identifiable information (social security numbers and dates of birth) to obtain loans.  If the employer would have conducted a criminal background check, they would have realized that this person had been convicted of burglary in 1982.  He also faced multiple charges of for DUI, theft by check and unlawfully carrying a weapon.  A credit check might also have revealed some interesting information worthy of consideration.

This kind of thing happens every day.  What I find interesting is that this didn’t take place at a larger national institution.  It happened at a small community currency exchange near Austin, Texas.  Nobody was assaulted or killed, but they were victims of identity theft, of which the affects can be felt for years.  Criminal activity does not discriminate.  In fact, those who seek to commit such crimes pray on smaller business because they know larger institutions are actually going to conduct background checks.  There is no way this company would have hired this guy if they knew about his past.  Now, they suffered financial loss, loss of reputation and are sure to find themselves involved in litigation from their customers.

It would be nice if the EEOC recognized stories such as these and spent time worrying about the victims of these crimes instead of protecting those who commit them.

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On August 6, 2010 Massachusetts governor Deval Patrick signed into law new reforms to the Commonwealth’s Criminal Offender Record Information (CORI) law that will have a significant impact on the state’s employers who conduct criminal background checks.  Clearly, these reforms represent an effort to help those with criminal records find employment, but will this come at the expense of employers ability to make an informed hiring decision?

Listed below are some of the most critical changes that will take effect February 6, 2012:

• Employers can no longer ask if an individual has been convicted of a crime on the initial job application (i.e. Ban the Box programs)
• Felony convictions older than or prison sentences completed more than 10 years ago will be removed from the system as will misdemeanors older the 5 years
• An employers can only take adverse action after they have presented the candidate with the CORI report
• Any employer that conducts five or more background checks on an annual basis must have a written criminal offender record policy
• Employers must dispose of an individual’s CORI report not more than 7 years after their last date of employment

For more depth of information about these reforms please check out Seyfarth Shaw attorney, Pam Devata’s legal alert.

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I am about to make a claim that is rather embarrassing as a background screening professional.  My childhood hero was the famous outlaw, Billy the Kid.  I grew up on horseback, I competed in cowboy style competitions at a very young age and always had the famous Billy Joel song, “The Ballad of Billy the Kid” playing in my head!  I was excited (yet still embarrassed) today when I saw that New Mexico Governor Bill Richardson is considering a posthumous pardon for this western legend!

According to Wikipedia:

Henry McCarty, better known as Billy the Kid, but also known by the aliases Henry Antrim and William H. Bonney (reportedly November 23, 1859 – July 14, 1881), was a 19th century American frontier outlaw and gunman who participated in the Lincoln County War. According to legend, he killed 21 men, but he is generally accepted to have killed four. Pat Garrett shot Billy the Kid down on July 14, 1881. Garrett tracked him after the outlaw escaped from the Lincoln County jail in a famous gunbattle that left two deputies dead.

Billy’s background check would look rather interesting with all the alias names he has gone by.  His criminal record is arguable at best and his death has been debated by historians for years.  According to a recent article:

The pardon dispute is the latest in a long-running fight over whether Garrett shot the real Kid or someone else and then lied about it. Some history buffs  claim Billy the Kid didn’t die in the shootout with Garrett and landed in Texas, where he went by “Brushy Bill” Roberts and died of a heart attack at age 90 in 1950.

If I can have it my way, I’ll stick with Billy Joel’s version:

Well one cold day a posse captured Billy
And the judge said “String him up for what he did.”
And the cowboys and their kin
Like the sea, came pouring in
To watch the hanging of Billy the kid.

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Did you know that if current incarceration rates continue, one in 15 Americans will serve time in prison? And that doesn’t include people with convictions who don’t serve time.

Join EmployeeScreenIQ’s web demonstration to learn why our 20% criminal hit rate is no accident… and how you can achieve the same results needed to make an informed hiring decision!

Find out why you want to perform Smarter Screening and Intelligent Hiring using:

• Comprehensive Criminal Record Searches
• Strict Oversight & Accuracy
• Stringent Risk Management & Compliance

We are offering this 30 minute demonstration on August 11th, 18th and 25th at 2 p.m. EST. To participate, simply click on a session below and complete our brief Webex registration form. Registration for each session is limited to the first 100 respondents.

• • • • Wednesday August 11, 2010 at 2 pm EST
      • Wednesday August 18, 2010 at 2 pm EST
      • Wednesday August 25, 2010 at 2 pm EST

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Two judges in Centre county Pennsylvania have rescinded orders requiring local newspapers to destroy their archives of news reports about criminal cases the judges’ recently approved for expungement.  It is unclear how this stipulation worked its way into the courts’ orders but the defense attorney for the cases argued ““What’s the sense in having your record expunged if anyone can Google you and it comes up?”  While I understand the point he is trying to make, I don’t support trampling all over the First Amendment. 

The broken record continues to play –  this is yet another reason why employers should not rely on social media sites and Internet search engines as tools to conduct background checks on potential hires.  The information found could include facts about an applicant that cannot be taken into consideration when making the hiring decision.  And once you know something, it may prove difficult to unknow it, so to speak.

Win or Lose in Court, You Cannot Erase the News

By Gene Policinski, eNews Park Forest – July 13, 2010

Sometimes the meaning of the 45 words of the First Amendment seems to escape even those trained in the law.

In Pennsylvania last week, two judges in Centre County — home to Penn State University — signed off on what generally are standard instructions to police and other agencies to expunge certain official records of five people involved in criminal investigations.

But the orders, thanks to the defense attorney for the five, also required that two area newspapers erase archived news reports about the defendants, who faced charges ranging from assault to drug possession.

“Imagine getting such an order, right before the July 4th holiday,” said Bob Heisse, executive editor of the Centre Daily Times, one of the newspapers involved.

Both judges have now voided the orders, but news reports now say as many as 41 orders presented to the court by defense attorney Joe Amendola included similar demands of news organizations.

“What’s the sense in having your record expunged if anyone can Google you and it comes up?” Amendola told the Centre Daily Times. The lawyer, in later news reports, said the newspapers were added to the orders without his knowledge, by a staffer in his office.

Regardless of how the newspapers came to be included in the various court orders, what makes “sense” is to report — and retain those reports — on arrests and court recordings, whether it’s the era of Google or in earlier times when the nation’s Founders took care to provide for an independent news media.

Yes, none of us likely would look forward to having our name or face in a newspaper, on a website or on TV if we were to be arrested and face trial. And there surely is a certain amount of pain and shame in having those facts come up in an online search later in life.

But, as Heisse said, “Facts are facts, and we don’t go back and alter the historical record to suit someone.” Elizabeth Murphy, editor in chief of the second newspaper involved, the Daily Collegian, said it “is a record of history as it happens from day-to-day. … We’re here to report the facts as they are and that’s what we did.”

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Tennessee Circuit Court Judge Jim Hamilton is accused of expunging the criminal records of two convicted felons when he did not possess the authority to do so.  This was only discovered after employees of the Sheriff’s office recognized one of the felons names on a request for a gun permit and could not locate his records.  The District Attorney in Maury County is  looking to reinstate those convictions immediately.

A criminal record that has been expunged would not show up on a background check.  Expunging a record from a person’s criminal history means that it’s gone, it never happened.  Typically, serious criminal convictions do not qualify for the expungement process.  This story does not indicate what crimes these two individuals committed, but does say that the individual applying for the firearm was convicted three times and served time in prison.  That sounds pretty serious to me.

This judge has some explaining to do.

Judge Accused of Illegally Expunging Criminal Records

By Nick Beres, NewsChannel5.com – July 7, 2010

COLUMBIA, Tenn. –Senior Maury County Circuit Court Judge Jim Hamilton is accused of illegally wiping the records clean for felons. Now, District Attorney Mike Bottoms wants to know why.

“We’ve got a judge who is granting pardons and he doesn’t have that power,” said District Attorney Mike Bottoms.

Bottoms has filed lawsuits to reinstate the criminal records of two men with multiple felonies. His petition reads: “The state seeks to have illegal orders of expungement set aside …. The judge who signed the expungement orders was without the legal authority to do so.”

Bottoms said Hamilton illegally expunged the felony records of Phillip Williams and Rodney Gillespie. Typically expungement orders have the approval of the district attorney, defense attorneys and the judge. But in both cases, the orders only had Hamilton’s signature.

Hamilton was on vacation and unavailable for comment. Newschannel5 questioned the Circuit Court Clerk Kathy Kelley.

“Mike Bottoms is alleging the judge gives pardons to felons,” said NewsChannel 5′s Nick Beres.

“I don’t know anything about this,” said Kelley.

“Does Judge Hamilton expunge records illegally?” asked Beres.

“Not to my knowledge,” answered Kelley.

Bottoms called this a public safety issue. He says one of the men involved, Gillespie, was already taking steps to get a gun.

“I was shocked that someone convicted three times and served time in a penitentiary could have his record expunged. And now he has a gun permit,” said Bottoms.

At this moment, Gillespie and Williams are no longer felons. Their records have been cleared. Bottoms said they can buy guns, vote, even apply for jobs in law enforcement.

Gillespie and Williams could not be reached for comment.

Bottoms said there’s no indication Hamilton was bribed for the expungements. So his reasons for granting the expungements remain unclear. It’s all part of a growing investigation that may now include the TBI.

Bottoms said he only learned of the expungements after Gillespie applied for the gun permit and employees at the Maury county sheriff’s department recognized his name, but couldn’t find his record.

Bottoms said he worries there may be others who have received similar pardons.

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Several communities in the state of California have passed or are considering banning the box legislation, a measure that will remove the check box on a job application in which a job candidate must divulge if they have been convicted of a felony.  As other states such as Connecticut, New Mexico and Massachusetts have enacted such laws, we’ve haven’t had a strong opinion one way or the other.  Why?  Because even if you don’t ask the question on the application, you can still conduct an employment background check and determine if the person has a criminal record.  I guess we would have to say we like this measure, because we probably conduct more background checks as a result of candidates not being initially rejected.  On the employer side, they are probably spending more money on background checks and recruiting than they ordinarily would.

Our opinion changes dramatically when you talk about doing so in the state of California as they do not report, nor allow employers to use criminal records older than seven years.  Therefore, if you take the conviction box off the application and the person committed a felony longer than seven years ago, you’ll never know it happened.  This certainly puts employers at a disadvantage when trying to make an informed hiring decision.  In my opinion, the state should pick a lane.  Either allow records to be reported regardless of age or continue the practice of asking the candidate if they have been convicted of a felony on the job application.

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A man charged with a 1996 triple murder which resulted in a mistrial due to unrelated sexual misconduct charges against the arresting officer has petitioned the court to expunge his arrest record.  Evidently, these charges are being revealed on employment background checks and are making it impossible for him to find gainful employment.  So here’s the deal, technically employers aren’t supposed to factor in arrest records that are greater than 7 years and didn’t result in a conviction.

Now, let’s put this theory to work.  According to this article in The Oklahoman, this guy appears to be guilty of the charges.  He just got lucky with the unproven charges about the arresting officer.  If you ran a criminal background check on this person, would you want to know about these charges?  Would you hire him?  See below.

Former Oklahoma City triple-murder suspect asks to seal his criminal record

A man charged with three 1996 murders wants his record wiped clean of the arrest. The 1999 trial of Tybream Demont Rogers was declared a mistrial after sexual misconduct allegations were raised against a police officer. More than 10 years later, Rogers wants his role in the episode erased.

BY Michael Baker

Published: July 6, 2010

A man charged in three deaths during a 1996 shoot-out wants his criminal record wiped clean of the arrest and resulting first-degree murder counts.

The 1999 trial of Tybream Demont Rogers was declared a mistrial after a defense attorney raised allegations of sexual misconduct by an Oklahoma City police officer. An appellate court ruled Rogers could not be retried because it would be double jeopardy.

More than 10 years after that ruling, Rogers, 35, wants his role in the episode erased from his criminal jacket. He has filed a petition for the expungement of his record. A hearing has been set for Thursday in Oklahoma County District Court.

Given the charges, such a request is unusual, said Oklahoma County District Attorney David Prater, whose office — along with attorneys for Oklahoma City and the Oklahoma State Bureau of Investigation — opposes Rogers’ request.

“Frankly, I was surprised that the expungement was filed,” said Prater, who was an assistant in Oklahoma County District Attorney Bob Macy’s office when the case was tried. “That’s unusual that you’ll ever have anyone file a motion for expungement on a case as serious as murder.”

Rogers says the charges are unfairly hurting his chances of finding a job. Arrests, charges and case outcomes show up when an employer does an OSBI background check.

Those opposed to sealing Rogers’ records say since there was never a finding of guilty or not guilty and the charges were never dismissed, there is no legal means to remove the arrest from the record. Further, giving the seriousness of the charges, the public has a right to know about them.

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In a move sure to anger employers and HR professionals conducting background checks in the state of New York, the state has announced that they will be raising the fee to access their Office of Court Administration criminal records database from $55.00 to $65.00 effective July 1, 2010.

See New York Assembly Bill AO976

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