EmployeeScreenIQ Blog

Recently a long awaited study was published on the recidivism rates of ex-criminals in the United States.  This study known in our industry as the “Blumstein Study” examined New York State Arrest records for more than 88,000 individuals who were first arrested in 1980.  Their recidivism rates were followed for 27 years through 2007.  The study which was published in the Journal of Criminology was conducted by Carnegie Mellon Professor Alfred Blumstein and Co-Author Kiminori Nakamura.

To summarize the report, ex-offenders do in fact have a high rate of recidivism within the first five years after arrest.  However, the study suggests that for offenders who “stay clean” for five years or more are much less likely to get arrested.  They suggest that after five years they are almost as likely to commit a crime as the rest of the general population of the United States.

The study is timely and important for many reasons.  First, the Obama administration has made it a point to break down those barriers for individuals who have committed crimes to gain employment.  Secondly, the EEOC has a mission to ensure a disparate class of ex-offenders is not created in the Untied States.  The problem is that the study has a lot of holes.

Noted employment screening industry experts and members of the National Association of Professional Background Screeners (NAPBS)  have commented on this study for months.   This week  Security Management Magazine published a great article on the topic.  One well respected expert concluded that because the study was limited to New York state it fails to find those criminals who may have committed crimes in other states.  Blumstein acknowledges this and expects that might lead to a 10 percent increase in the risk findings after that data is added.  The same expert also notes that because the study only looks at arrests and not convictions the true sample size is greatly reduced.

In my opinion these industry experts are spot on! Having examined the findings of the study I find even more shortcomings.  First, what are the parallels between major crimes and minor ones.  Meaning, how does the recidivism rate for someone convicted of Armed Robbery compare to someone convicted of Petty Theft? Secondly, the study is only able to track the rate of crimes re-committed that the individual has been caught committing.  Many times employees are simply fired and never prosecuted for breaking the law.  Lastly, in the pre-employment screening world, many times we are very concerned with “white collar” crimes.  There is no data on crimes committed at the Federal District Court level.  These crimes could include embezzlement, bank fraud, kidnapping etc..  These are only three examples of where I feel the study falls short.  I will reserve further comments because I feel an article brewing in my head and I don’t want to give it all away here!

In conclusion, the study is very important.  It would have had a huge impact on the recent El Vs. SEPTA case, had it been published a few years back.  It’s also important because it could pose a great defense to employers being sued under the Negligent Hiring doctrine.  What we do know is this; the current administration has made the “ex-offender in the workplace” issue a priority to solve.  The question is do employers want the government telling them which perspective employees are a risk enough to take?

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Deciding whether to hire someone who has a past criminal record is not an easy process.  Federal law prohibits employers from discriminating against those with criminal records.  Conversely, one has to weigh the potential liability of having someone with a criminal conviction working at their company.  For many HR professionals, it’s a “damned if I do and damned if I don’t” scenario.

The following article provides a nice description of how HR professionals can take the overall question of “Should I hire someone with a criminal record?”, break it down and come to a decision they are comfortable with.  But, as with any question regarding the type of information that can or should be used to deny employment, employers should consult with their legal department to ensure compliance with both state and federal law.

If job candidate has a criminal record, ask questions

By Victoria Stagg-Elliott, AMNews Staff – August 10, 2009

If you run a background check on a potential receptionist, and you learn he was convicted of marijuana possession many years ago, can you still hire him?

Or what about offering a job to an otherwise strong candidate who, in answer to the application question, “Have you ever been convicted of a crime?” writes, “Yes, drunken driving, six years ago.”

Can you employ them? Should you? What are the risks if you do? What are the risks if you don’t?

Considering hiring someone with a criminal background, no matter how minor, is tricky. On the one hand, anti-discrimination laws prevent you from instituting a ban on hiring anyone with a criminal record. On the other, you could open yourself up to a negligent hiring lawsuit if it is determined that you should have known someone was at increased risk of causing harm to patients or staff.

This question is becoming more important, because background checks are easier than ever, meaning that job applicants are more likely to have this type of information disclosed during the hiring process even if the conviction is far in the past.

Also, the percentage of people of the labor pool who answer “yes” to an application question about past convictions is growing. According to the U.S. Dept. of Justice’s Bureau of Justice Statistics, in 2007 more than 7.3 million people, or 3.2% of adults, were on probation, in jail or in prison. The agency estimates that if trends continue, approximately one in every 15 people will serve time at some point in their lives.

“A physician has to be so careful,” said Linda Stimmel, a founding partner in the Dallas-based law firm Stewart Stimmel. “But I would not have any kind of policy on the subject. I would handle every hire on a case-by-case basis.”

So what should you do? Experts recommend asking these questions:

What was the offense? This is key, because a direct link between the crime and the work environment are strong grounds for not hiring someone. That’s because an employer could be held liable for negligent hiring. Employing someone with a child molestation conviction in a pediatrician’s office would be a clear example.

Most situations are not quite so clear-cut, but other questions may clarify the decision.

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Six Pittsburgh city workers may be out of the job after city officials discovered they did not reveal previous criminal convictions on their applications for employment.  Some of the omitted cases include felony convictions for  drug possession, aggravated assault and terroristic threats.  One worker has a criminal conviction for acquiring or obtaining possession of a controlled substance – 110 counts to be exact.

These are pretty serious cases – I can understand why an applicant would want to keep this information under wraps.  But doing so is not recommended for the obvious reason that you run the risk of losing your job if your deception is uncovered.  And the only thing worse than being terminated for lying about a criminal conviction on your application for employment is discovering that if you had been truthful, the employer would still have been willing to give you a chance…

Pittsburgh prepares to fire 6 workers for unreported convictions

By Adam Brandolph, Pittsburgh Tribune-Review – July 14, 2009

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If you read our series, Employment Screening 101, you know how important criminal background checks can be.  If you have read our various articles on employeescreen University, our Blog and our newsletter The Verifier, you know how critical it is to do a thorough lifetime search if available.  This article begs the question, how far back do I search?

Elwood “Buddy” Porter was charged with possession of child pornography after a Realtor found what they believed was child porn inside his home.  After a Grand Jury indicted him records from 1961 were found by investigators.  In February of 1961 Porter was charged with trying to lure two little girls into his car to sexually abuse them.  Porter was 22 years old at the time and the girls were five and eight years old.  Porter served only six months in jail after pleading guilty to those charges.  Porter is now under investigation for other possible sexually related crimes.

Where has Porter worked in the past 50 years? Was a quality background check conducted? Were other children put at risk?

This also plays into the argument I posed yesterday about sealing criminal records after a period of time.  Yesterday’s article did not (and would not) apply to sexual molesters, however, where do we draw the line?

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I ran across this Opinion column published in the Ithaca Journal today and my interested was piqued.  Apparently, back in 1989, the U.S. Supreme Court decided against the release of criminal conviction information for a particular individual citing that the disclosure of that information would be “an unwarranted invasion of personal privacy.”   Now, 20 years ago my interests were more so geared towards Barbie dolls and ballet class rather than what the Supreme Court was up to.  But 20 years later, speaking from the viewpoint of both a pre-employment screening professional and a private citizen, this decision bothers me.  And as an employer, it should bother you too.

While I can’t recount an instance where the Court’s decision has created a roadblock during the criminal background check process, I can’t say it never will.  But if it ever does, you can bet that the pre-employment screening industry will fight it tooth and nail.

Some food for thought: Five of the nine current Supreme Court Justices were not serving on the Court twenty years ago when this decision was made.  If this case was being decided or re-visited today, would the outcome be different? 

Twenty-year-old lawsuit still hurts FOIA laws   

By Robert Freeman, Ithaca Journal

When I read the Supreme Court’s decision in Reporters Committee v. U.S. Department of Justice 20 years ago, I asked myself: How could nine justices be so wrong? I’m asking the same question today, because that decision has led to damage done to the federal Freedom of Information Act (FOIA) and it simply does not reflect the realities of 2009.

The case involved a request for the criminal conviction history of person alleged to have been involved in organized crime, and the information was stored in a government database. Although the information could readily be found and retrieved, the Court determined that disclosure would result in “an unwarranted invasion of personal privacy.” That standard is contained within the federal Act and its equivalent is included in numerous state FOI laws, including the New York Freedom of Information Law (we call it “FOIL”).

Most Americans know that the fact of a conviction, a finding or admission that a person has broken the law, is public, and that anyone can walk into a courthouse and gain access to the record of the conviction. The Supreme Court knew that, too, but it found, in essence, that there are thousands of courthouses in this country, and that, even though they are available, they involve items of “practical obscurity” – yes, they are public, but they can be very hard to find. Because that is so, even though they were easy to find in a government database, the Court determined that they could be withheld on the ground that disclosure would constitute an unwarranted invasion of privacy.

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U.S. DEPT. OF JUSTICE v. REPORTERS COMMITTEE, 489 U.S. 749 (1989)   (Supreme Court decision)

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Many criminal records don’t deserve to be expunged.  But who could argue this one?

‘The Friendship Nine Act’ would pardon segregation protesters

Local legislators sponsor bill to remove convictions

By Andrew Dys, The Herald – March 10, 2009

Finally, 48 years late, the nine black Rock Hill men who changed the world with their courage to fight segregation could get a pardon for committing a crime that should have been no crime at all.

The crime in 1961 in South Carolina was protesting segregation of the races — laws and customs later found to be unconstitutional and immoral. Yet the “Friendship Nine” spent 30 days in jail and have had criminal records all their lives for sitting at a whites-only Rock Hill lunch counter.

Those criminal convictions would be wiped clean forever under a bill that could be introduced in the Legislature as early as this week, lawmakers said. The proposed law would pardon those nine protesters, and so many others just like them around the state, for challenging segregation during the civil rights era.

The law would be named, fittingly, “The Friendship Nine Act.”

Click here for the rest of the story

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A new study conducted by The Pew Center sheds light on how much States spend to house inmates in correctional facilities.  The study also asks the questions: Do certain crimes really warrant jail time?  Can punishment for non-violent crimes be left up to the community instead cutting costs significantly?  These are very intriguing questions which I’m sure impels much debate among those in the criminal justice field. 

If sentencing laws were changed so that less offenders ended up serving jail time, how might this affect the offenders’ ability to obtain work?  Is there less stigma attached to offenders that are sentenced to probation or electronic monitoring than those who carry out their sentence in jail? 

For example:  You have two applicants with disorderly conduct convictions on their background check.  One of those applicants was sentenced to 10 days in jail.  The other was sentenced to 6 months probation and 30 hours of community service.  Does the applicant that didn’t spend time in the slammer seem more appealing because of the way society looks at those who have been incarcerated?  Or do you look at them the same way because of the type of crime committed, disregarding the sentencing?  I would love to hear some HR professionals’ opinions on this one!

Cost of locking up Americans too high: Pew study

WASHINGTON (Reuters) – One in every 31 U.S. adults is in the corrections system, which includes jail, prison, probation and supervision, more than double the rate of a quarter century ago, according to a report released on Monday by the Pew Center on the States. 

The study, which said the current rate compares to one in 77 in 1982, concluded that with declining resources, more emphasis should be put on community supervision, not jail or prison. 

“Violent and career criminals need to be locked up, and for a long time. But our research shows that prisons are housing too many people who can be managed safely and held accountable in the community at far lower cost,” said Adam Gelb, director of the Center’s Public Safety Performance Project, which produced the report. 

The United States has the highest incarceration rate and the biggest prison population of any country in the world, according to figures from the U.S. Department of Justice.

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Officials in New Haven voted last night to remove from their job application a question asking applicants about their criminal history. It’s an admirable attempt to give citizens a second chance and reduce high levels of recidivism; something that benefits neither the applicant nor the general population. I personally recognize and commend them on their efforts. But good intentions aside, there could be unintended consequences for the good people of New Haven.

Aldermen vote to ‘ban the box’

NEW HAVEN — In what was characterized as a “landmark piece of legislation,” the Board of Aldermen Tuesday approved a “ban the box” ordinance that will remove the criminal history question from city job applications and require city contractors and vendors to follow suit.

Click on the link to read the full story.

http://www.nhregister.com/articles/2009/02/18/news/a3-banthebox11.txt

Several thoughts come to mind.

“Banning the box” is a growing sentiment. There are several metropolitan areas that have done this. Others considering it.

Applicants with criminal records could be discouraged from applying for a position if they feel a past mistake will automatically disqualify them. I certainly understand that. 

It does not appear this town will stop doing background checks. That is very good. It looks like they will be a final part of the process.

The ordinance appears to be in response to a worry that information which isn’t relevant is used to exclude a candidate before their qualifications and nature of the offense(s) are considered. This seems to be an effort by the town to protect them from making bad decisions.

Without getting too deep into the world of public records research, asking applicants to provide information is very important, even if a background check is being conducted. It isn’t a waste of space. There is real, legitimate value if the goal is to consider all information when making a hiring decision.

A quick example. What if your candidate tells you they were convicted of a misdemeanor but the court incorrectly files it as a felony? This is not at all unusual. But if the box is gone, the applicant doesn’t have a chance to tell you, and they’re inadvertently denied a position. An absolute unintended result of the ordinance. So, I don’t fault those who are less aware of the process. But our knowledge of it leads me to believe removing the box entirely is a mistake. 

This ordinance extends to private organizations that have contracts with the town. This could be an entire blog post on its own. Each organization will have to weigh competing interests and determine whether they want to continue to work with the city.

If asked, I would recommend continuing to ask the question, but doing so at the end of the process. There is a lot of good within this ordinance. But that seems to be the best way to both evaluate the candidate and use all appropriate information to make a solid hiring decision.

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I’ve heard of people lying to get OUT of jury duty.  But lying to get IN?  Not too smart, considering who they were lying to.  Who would have thought a court where criminal record information is kept would find out about the criminal records of those serving on one of their juries?

Potential jurors lied about criminal past

BY ERIN L. NISSLEY, STAFF WRITER - The Times Tribune                               

November 19, 2008

A jury trial ended in a mistrial before it began Tuesday when a prosecutor discovered three jurors lied about their criminal records.

All three were chosen Monday, along with 11 others, for the trial of a Scranton man on drug and gun charges. As part of the selection process, potential jurors must fill out a questionnaire that asks, among other things, if they have ever been arrested and if they have ever been convicted of a crime.

All 14 jurors — 12 plus two alternates — answered they had not. But a background check, which is routinely conducted on jurors selected in a criminal case, revealed three had criminal records, Deputy District Attorney Margaret Bisignani said.

Ms. Bisignani reported her discovery to Judge Vito Geroulo on Tuesday morning.

“In my 36 years (in the legal profession), I’ve never heard of anything like this,” he said, joking that jurors more often lie to avoid jury service.

If only one or two of the jurors had lied about their criminal history, the case against defendant Larry Moore, 23, could have gone forward because there still would have been 12 people left on the jury, Judge Geroulo explained.

Ms. Bisignani said if the information had not been discovered, any conviction would be automatically overturned.

“A person is ineligible to serve as a juror if they have a conviction of a crime punishable by more than one year in prison,” she said.

A new jury will be picked this morning, and the case will go forward, Ms. Bisignani said.

The three jurors’ names were not released Tuesday; it’s unclear whether they will face charges. Judge Geroulo said that decision would be up to District Attorney Andy Jarbola, but he felt so strongly about the situation that he called the jurors into the courtroom Tuesday to explain why they were being sent home.

“It interferes with the court’s ability to do business,” the judge said. “The goal is to get fair and impartial jurors. That didn’t happen here.”

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Mike Sankey, founder and CEO of BRB Publications was kind enough to allow us to re-publish a section from his book, The Public Record Research Tips Book, on employeescreen Univeristy.  The article offers information on how to distinguish between a name-only public record search and a document request.  There is clearly a difference and it is important for employers who conduct background checks to understand this concept.

Check out a portion of Mike’s Guest Article below.

“Let us say you wish to determine if an individual has a criminal record or, say, if an individual has collateralized certain assets such as a real estate holding or ownership of equipment used in a business. The best way to perform this research is to do a “name search” – also known as an “alpha search” – of an index at the government agency that holds the records.

However, name searching is not always an easy task. An index may or may not contain the middle initial or the date of birth. Most indices no longer show the full or even a partial Social Security Number due to privacy concerns. Obviously, having this additional information – often referred to as “PI” which stands for “personal identifiers” – can be quite helpful as discussed below. Since many agencies withhold personal identifiers from appearing on the web, using an Internet site to perform a name search on such a site has lesser value and is often merely a supplemental search.

Other agencies, such as many of the county-based Supreme Courts in New York, refuse to allow the public to view an index online or in person AND refuse to perform a name search. For example, most New York courts direct searchers of criminal records to the New York State Office of Court Administration (OCA) for an online statewide criminal history search (CHRS) for a $55 fee.

Another problem when performing name searches is the correct spelling or variation of the name. There can be typos in the index and records could be filed under a variation of a first name (Ted vs. Theodore, Robert vs. Bob, Deborah vs. Debra vs. Debbie, etc.). Knowing how to maneuver through an agencies index, be it on-site or online, is quite important and worth investigating”

Read the full article

Name only searches are definitely not recommended for employers that are conducting background checks.  Without proper information about the records and conclusive personal identifiers this practice could get you in hot water.

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