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Personal Background Checks

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Welcome back to an annual tradition of mine where I skewer school districts across the country for the manner in which they conduct employee background checks on their teachers and faculty.  This year, I’m going to be less snarky because this is a serious issue with some very sobering facts.  In the past year alone, we’ve heard about some atrocious instances of abuse at the hands of school employees.  See a few examples below.

  • Duval Schools in Jacksonville, Florida- Elementary School teacher Christopher Bacca was accused of sexually molesting a boy under 12 in the boy’s home. Just over a year earlier, Robert Luke was teaching math at Southside Middle School when he was charged raping a 15-year-old girl.
  • Whaley Elementary School in San Jose, California- Law enforcement authorities are charging OB Whaley Elementary School principal Lyn Vijayendran with failing to report a child molestation complaint against alleged child molester Craig Chandler. Chandler taught at OB Whaley Elementary School, Evergreen School District, for nine years. Chandler was arrested in January 2012 and is currently facing charges stemming from the alleged molestation of five children from his second and third-grade class.
  • Miramonte Elementary School in Los Angeles, California- The children at Miramonte Elementary School never complained about their third-grade teacher. Not when he blindfolded them, not when he put tape over their mouths or even when he placed live cockroaches on their faces. He told them it was a game. Then he photographed them, creating images that would eventually lead to his arrest.

Of course these are all disturbing cases, but I think we all have a tendency to think that these things happen elsewhere; not in our own backyards.  So when it comes to background checks why shouldn’t they just go along with state directives?  What’s the point of going the extra mile?  If the state says their criminal record index is sufficient, then who am I to question?

Here’s the thing; these things don’t happen in your school district until they do.  And if you could predict when and where they occurred, there would be a need to conduct criminal background checks.

Sometimes you need to bring the message home with cold hard facts.

I found some of the following facts about child abuse in schools.  Some are old, but I think it’s safe to say that things have either stayed the same or gotten worse.

  • The best estimate is that 15% of students will be sexually abused by a member of the school staff during their school career.
  • The number of K-12 public and private school students in 1996 who have been or will be sexually abused by a member of the school staff is nearly 7 million of 51,331,000.
  • Though, when the American Association of University Women Foundation surveyed more than 1,600 students in eighth through 11th grade, 25 percent of the girls and 10 percent of the boys who said they had been harassed or abused said the harasser was a school employee.
  • Between 1% and 5% of teachers sexually abuse or harass students.
  • At least a quarter of all school districts in the United States have dealt with a case of staff sexual abuse in the past ten years.
  • Most cases of sexual abuse of students by teachers are never reported.
  • In nearly half of the cases, suspects were accused of abusing more than one student.
  • Only two cases were cases of false accusations; less than 1 percent of the cases studied.
  • No type of school was immune to abuse: public or private, religious or secular, rich or poor, urban or rural.

The schools and the state will argue that their systems work, “Sure, people will slip through the cracks, but it works for the budgets we have”.

If they cannot be swayed by the pain and suffering this causes to children and their families, perhaps they’ll consider the words of Prevent Child Abuse America’s CEO, Jim Hmrovich, who suggests that children who are abused are left with scars for the rest of their lives.  In many cases, they become non-productive members of society whether due to dropping out of school, drug abuse and, or criminal activity.  Even worse, many who are abused actually become abusers.

Perhaps that’s not enough.  Let’s look at the financial impact.  I don’t know what the average settlement is with a school for these cases, but here are a few to consider:

  • Sexual abuse of foreign exchange student $600,000.00
  • Sexual molestation by teacher $1,500,000.00 settlement
  • University settlement of sexual harassment claims $2,800,00.00
  • Sexually assaulted by football coach $1,150,000.00 settled
  • School bus driver molestation of child $300,000.00 settlement

I think you get the picture.  When compared to these settlements, the cost of a thorough employment background check is decimal dust.

Let’s start holding our school districts to the same standards used in corporate America.

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FTC Flexes its Muscles with Criminal Backgrounds: Employers Take Note

Earlier this week,  the Federal Trade Commission (FTC) announced a settlement with background screening giant, HireRight. The scenario is pretty much every compliance officer or in-house counsel’s worst nightmare. The company has signed a consent decree that requires it to pay $2.6 million in penalties. Along with the payment, HireRight has to submit to monitoring by the FTC, is enjoined from some allegedly bad practices, and agrees to regular reporting and ongoing investigation by the agency for at least five years.

The FTC charges that the company violated the Fair Credit Reporting Act by failing to use reasonable procedures to assure the maximum possible accuracy of criminal background check information it provided, failing to give consumers copies of their reports, failing to re-investigate consumer disputes, and failing to sufficiently notify consumers when public record information is used in a background check.  In plain English, the FTC is saying that consumers were denied protections that are required under the law.

While the consent judgment does not admit any wrongdoing, the company has agreed to cease certain practices, and they are paying a hefty fine, to boot. For more of the legal nitty gritty, our friends in the privacy practice group at Arnall Golden Gregory LLP have done a great job of laying out the statutory violations here.

Up until now, the FTC’s investigation and enforcement of the FCRA, specifically the accuracy of consumer reports, has not shown much muscle. It’s been focused more on credit reports than criminal backgrounds.  The recent scrutiny by the FTC is, in my opinion, due to a convergence of a few things. First, with the ongoing job crisis, there is increasing attention on potential barriers to employment, including a criminal past or a bad credit report.  When background companies get it wrong and someone is unjustly denied a job, those applicants are crying foul.  As well they should.

In addition, watchdog organizations are sounding the alarm. Groups like the National Employment Law Project (NELP) are reaching out to regulators and providing a platform for ex-offenders and potential victims of discrimination to protest inaccuracies in reports and potential FCRA violations.  I can’t argue with that. And the CFPB is now in the mix, asking questions as well.

Finally, technology and price pressures have converged to make the quick and easy instant database search an attractive but dangerous product.  Don’t confuse a cheap and cheerful web search with a real background check. Databases and public records are invaluable tools if used properly. But they can be inaccurate and damaging if not vetted and verified.

Full disclosure—I am employed by a background screening company.  Moreover, I am on the board of directors for the National Association of Professional Background Screeners. With that said, I firmly believe that if you are running or managing a business, doing a criminal background check is a must. It’s a sound and best practice. In some instances, it might be negligent not to do so, and it may actually be required by law. But how do you know if your background company is following the law? I have a few recommendations, based on the FTC’s allegations and the resulting judgment and order.
1.    Look for NAPBS accreditation: This standard, established a couple of years ago by the National Association of Professional Background Screeners, identifies that a background screening firm is committed to best practices, subjects itself to on-site audits, and has submitted to ongoing monitoring and approval of policies and procedures by an accrediting board.
2.    Ask your provider about accuracy: The FCRA requires “reasonable procedures” to ensure “maximum possible accuracy.” Ask your background company about this requirement. They should know what you’re talking about. If they don’t, start looking for a replacement.
3.    Does your background firm use databases? Databases are great. They are highly effective when used properly.  So if they use them, how do they confirm that the information is up-to-date? A database is NEVER completely up-to-date. Even the FBI and state police databases are full of holes and gaps. By definition, a database is stored information that does not keep up with the real-time activity of a court. Unless a provider is confirming with an on-site or real-time court level check, the information may not be accurate.
4.    What about expungements? Again, if the information is not verified at the county court level, you run the risk of making a decision based on an expunged or sealed records.
5.    Does your provider publish duplicate offenses? If a case is reported in multiple places, the right thing to do is only report it once. Courts and regulators agree–reporting duplicates can make an applicant look worse that they really are.
6.    Does your provider send required notifications to consumers when public record information cannot be verified? This is one area where the FTC came down hard. In this case the FTC alleged that they had a “complex, multistep process for notifying consumers that public record information was being reported.” This process delayed notification, and could have been avoided altogether if the information had been verified at the source before being reported.
7.    How does your provider deal with consumer inquiries? Ask for a copy of their dispute resolution policy. Take it to your attorney to review. The law says disputes must be responded to within 5 days, resolved within 30 days, and the background screening company must provide a copy of the report upon request. If it seems like they are making your job applicants jump through hoops when they have a question about the report, be on notice. The law exists to help consumers and job seekers, and the background screening companies are a critical part of that process.

At the end of the day, employers can help themselves and their applicants by asking these questions. And if the answers don’t sound right, it might be time to make some changes.








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So I guess introducing a federal “Ban the Box” bill in the U.S. House of Representatives is a one way ticket home.  Just one week after Congressman Hansen Clarke (D-MI) drafted a bill to stop employers from asking job candidates if they have ever been convicted of a crime on their employment application, he lost his district’s primary election.  Of course, one probably had nothing to do with the other, but the introduction of such a law is noteworthy for employers.

The proposed HR 6220, or “Ban the Box Act,” would only allow for an inquiry or criminal background check after a conditional offer for employment is extended to an applicant; or where there is an “unreasonable risk” to individual or public safety.

The freshman Congressman said in a statement: “By making it incredibly difficult for people with conviction records to find jobs, current employment practices lead to hopelessness and result in more poverty and crime,” and  “This legislation is aimed at empowering people to take responsibility for their communities and their lives.” Clarke is running for his second term in a hotly contested race in a district that was redrawn this year.

The bill is patterned after similar laws in Minnesota, Massachusetts and the city of Philadelphia, to name a few. Essentially, it removes the little checkbox on the application that reads “Have you been convicted of a crime?”  While the intent is to get ex-cons back to work, one problem with this bill is that it ties the hands of employers until too late in the game.  Employers cannot reasonably determine a candidate’s suitability for a job until countless hours and resources have been spent reviewing applications, conducting interviews, and negotiating employment terms.  Have you ever been under pressure to fill a position, only to find out in the eleventh hour that there is something about the candidate that makes them ineligible for hire?  Starting over is costly—in terms of both time and money.

Another concern is that this bill does not take into account the employer’s liability for negligent hiring or retention.  By limiting the employer’s ability to conduct criminal background checks until the last step, a legitimate concern is the potential chilling effect on conducting criminal background checks altogether.  This bill would codify a public policy that discourages employers from looking into a criminal’s past. What if you have several finalists, and you want to screen all of them before making an offer? There is no provision for this scenario, nor is there a safe harbor or exemption for employers who are required by state law to conduct background checks—only a very amorphous exclusion for an “unreasonable risk” to public safety.

The pay-off is to discourage and prevent discrimination against ex-offenders, which is a worthy goal. But why not focus on policies and programs that give employers incentives to hire ex-cons? There are tax credits, re-entry programs, rehabilitation policies that are all geared at getting people back to work.  I realize that this all might sound self-serving coming from a person who works for a company that is paid to do criminal background checks.  So don’t let me have the final word—what do you think?

Editor’s Note: Congressman Clarke lost his democratic primary a week after this bill was introduced.  And while someone else can pick up the effort, it looks like this is a dead issue for now.

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The Society for Human Resource Management (SHRM) recently released their 2012 survey results on employers’ use of criminal background checks and we wanted to take the time to break down some of their key findings.

The one I want to focus on today is the question they asked about whether employers allow job candidates to explain the results of their criminal checks.

According to the study 58% of respondents said that they allow candidates to explain the results of their criminal checks before the decision to hire or not to hire is made and 27% allow them to do so after a decision is made.

As I evaluated this finding, I couldn’t help but think of a survey they released in 2010 about employers use of credit checks.   Through not fault of SHRM whatsoever, the finding that got published over and over and over again was that 60% of all employers were evaluating credit reports to determine hiring eligibility.  And I’m sure you all remember how the media twisted those results: “Job Applicants With Bad Credit Need Not Apply”, “Candidates Beware: Employers Are Looking At Your Credit”, etc.

The media jumped on this and created a hysteria among those looking for jobs as our country’s unemployment rate reached double digits.  For all we know, that finding could very well have been the catalyst to inspire a myriad states to create limitations on employers use of credit reports.

Just one problem though.  While technically that 60% stat was accurate, no one bothered to read the real findings.  47% said that they ran credit reports on select candidates, while only 13% said they run credit reports on all candidates.  In SHRM’s defense, they even underlined the part where they mentioned that only 13% used them all the time.  And, in truth I am certain that a healthy percentage of that group ran them to comply with federal guidelines.

Now, back to the findings about whether employers allow candidates to explain the results of their employment background check.  If not explained further, the findings seem low.  I can see the headlines now, “Only 58% of Employers Allow Applicants to Explain Criminal Past”.

Let’s give those findings some perspective now.  According to our 2012 Trends in Background Screening study, employers deny employment to those with criminal records less the 10% of the time. Why is that important? It’s important because it underscores the fact that oftentimes, these records don’t need to be explained.  The candidate is hired and that’s that.

So while the media’s first thought will be to offer this statistic to suggest employers’ irresponsible use of employee background checks, let’s hope that they take a minute to consider the whole picture first.  That headline might not sell papers, but it also won’t create a media frenzy fueled by inaccurate reporting.

It’s important to realize that employers are not looking for reasons not to hire someone.  They spend of time, money and effort recruiting the perfect candidate.  By and large, they don’t conduct a background check until the final stages of the hiring process.  The last thing they want is to throw the investment they made into that candidate out the window and start over again.

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The Society for Human Resource Management (SHRM) just published an eye-opening study on employers use of employee background checks.  The big takeaway that SHRM and other industry writers have chosen to highlight is that the use of pre-employment background screening has declined since their last survey was conducted in 2010.  In the 2012 survey, 14% of respondents say that they never perform criminal background checks compared to 7% in 2010.

This finding is particularly puzzling and runs counter to what we are seeing in the marketplace.  In fact, I often tell clients and prospects the key difference in screening between the time we started the company in 1999 and now is that we used to walk into meetings convincing employers that they should have a background screening program.  Now, we simply ask what they are currently doing and how we can make it better.  I haven’t had a conversation with a mid to large sized organization that doesn’t perform an employment background check prior to hire in years.

When I looked at the survey demographics, I noticed that 24% of all respondents worked for organizations with 99 or less employees.  I’m not sure what the demographics were in 2010, but perhaps that might help explain the findings.  In fact, the study notes that only 48% of organizations at this size conduct background checks.

Here are SHRM’s other key findings:

  • 69%  of employers say that they conduct criminal background checks on all job candidates, 18% on select candidates and 14% don’t perform them at all.
  • 62% of employers conduct a background check after a contingent offer, 32% after a job interview and only 4% before an interview.
  • 52%  conduct criminal background checks to reduce negligent hiring concerns while 49% do so to ensure a safe work environment.
  • 96% say that they are influenced not to hire convicted violent felons and 74% say they are influenced by non-violent felony convictions.
  • 58% of organizations allow job candidates to explain the results of their background check before a decision is made and 27% allow them to explain after a decision is made.

Now, rather than make this post into a novel, we’ll be breaking down some of these findings in multiple posts.  In the meantime, feel free to check out the official findings.

 

 

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Cody Slaughter might have said a little too much at his interview for a position with the U.S. Customs and Border Protection when he openly admitted to sexually molesting a 2 year old girl when he was 14 years old as well as animals.  I’m guessing the interview all went downhill from there.

Before I start being a wise-donkey, I want to say that sexual molestation is no laughing matter and the comments I share below are in no way intended to make light of the situation.

That said, if all applicants were as truthful as Slaughter, there wouldn’t be a need for employee background checks or background screening companies for that matter.  Unfortunately, we live in a world where that just isn’t the norm.  There must have been something about Slaughter’s experience and qualifications that got him an interview.  Clearly, he looked good on paper.  At least we’ll give him a big A+ for honesty. Let’s also give U.S. Customs and Border Protection props for taking this information to the proper authorities.  If only Penn State University did the same thing.

 

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Last week Pennsylvania State University announced that it was launching a new pre-employment background screening program for all employees.  And because they are a public institution, they made the actual policy itself available to the public.

I have to commend them on many levels.  First, it is refreshing to see a major university taking the proper steps to protect its students, faculty, employees and itself from hiring those people who seek to harm them collectively whether it be through theft, dishonesty, violence, etc.  Universities whether public or not have become multi-national conglomerates and it’s time that they recognize it.

While many will say that they are only doing this because of the Jerry Sandusky scandal, I say, so what.  Good for them for learning from their mistakes.  I hope that other academic institutions will take note and follow suit.

Secondly, if you read their actual policy, they did a tremendous job of defining who will be subject to an employment background check (practically everyone), what screening criteria will be applied to each position, how the information will be used and how they intend to stay in compliance with state and federal laws as well as EEOC and FTC guidelines.

Any employer that conducts employee background checks and doesn’t have such a policy or hasn’t updated it for a while ought to take a few moments to review it.

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In March of this year, I had an opportunity to meet with representatives of the Federal Trade Commission (FTC) to get the pulse on their current enforcement focus, hear about their new privacy report , and to discuss trends in consumer background checks.  Social media sites and mobile applications were at the top of their agenda.

At the meeting we raised an interesting question—would the FTC consider social media “aggregator” sites and “metasearch’ engines, like Dogpile and Spokeo, consumer reporting agencies (CRAs) as defined by the Fair Credit Reporting Act (FCRA)? After all, when those sites are used by employers to look up potential applicants, the search engines are compiling reports for employment purposes, right? And they market their sites to businesses for this very purpose, right? On the other hand, you could look at the site as just a pass-through— software through which information passes. As we debated the issue, one of the FTC attorneys in our meeting commented that, taken to the extreme, one could argue that Google is a CRA. And we wouldn’t want that, would we?

The online search site Spokeo was faced with this very question in 2010, when it was hit with a double whammy–the Center for Democracy & Technology filed a complaint against the company with the FTC, and Virginia resident Thomas Robins filed suit against the company for allegedly violating the FCRA.  In the FTC complaint, the watchdog group claimed “Despite offering credit ratings and promoting the use of its services for employment decisions, Spokeo does not offer consumers any of the protections encoded in the Fair Credit Reporting Act as required by law.” Meanwhile, Robins alleged that Spokeo was acting as a CRA, reporting inaccurate information that was hindering his job search, and that he had no recourse or means to dispute the inaccurate information. CRAs are required to provide consumer protections like procedures to assure accuracy and dispute processes for consumers who find inaccuracies.

Spokeo countered that Robins had no proof of damages and that it is not a CRA, but merely a search engine. Last September, the judge dismissed the case, finding that “(t)he alleged harm to Plaintiff’s employment prospects is speculative, attenuated and implausible.”

Now Robins is back.  Earlier this week, Media Post reported that he has asked the 9th Circuit Court of Appeals to revive his case, arguing he does not need to prove damages under the FCRA since it provides for statutory damages, and that he can prove anxiety and stress.

And the FTC is still circling. The agency has not taken any public action against Spokeo, but they have asked Congress to consider new legislation to address so-called “data broker” web sites.  While sites like Spokeo typically say in their terms of service that users are not allowed to use the information for FCRA purposes like employment or credit, the FTC has repeatedly warned that attempts to avoid liability through the use of disclaimers won’t fly. In their Privacy Report issued earlier this year, the FTC calls for legislation that would give individuals more control over the information held by “brokers” making it easier to erase it or modify it.

As the FTC seems to be defining data brokers, the term applies to a very broad spectrum of businesses on the Internet.  Data brokers, the FTC report said, “Buy, compile and sell a wealth of highly personal information about consumers but never interact directly with them.”

Stu Ingis, a partner with Venable who represents the Digital Advertising Alliance recently had this to say:  “The FTC created a term that sounds nefarious. It’s fear-mongering. I’m not sure what they’re talking about. Data is the engine of the economy; it’s not a secret the online world is replicating [in] the offline data world.”

So what is a site like Spokeo? A CRA?  A data broker?  Neither? And what is a data broker anyway? Tell me what you think.

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The Department of Criminal Justice Information Services (DCJIS), the agency responsible for administering the Massachusetts CORI (Criminal Offender Record Information) statute, recently issued the final version of regulations.  Round two of the Massachusetts CORI reform legislation went into effect on May 4, 2012, changing who has authorized access to CORI and how CORI will be accessed.  With the new provisions, DCJIS has launched a new CORI request service online called ‘iCORI’ that will allow individuals and organizations to request and obtain Massachusetts criminal offender record information over the Internet.

Prior to the May 4th updates, private employers could only have access to CORI through a certification process.  Employers, volunteer organizations, landlords, and individuals can now request, pay for, and receive CORI online using the iCORI online service, but subject to new requirements and mandates.

Employers have “Standard Access” to CORI info on any criminal charges pending as of the date of the request; felony or misdemeanor convictions; convictions that have not been sealed; and any murder, manslaughter, and sex offenses. Certain employers who must comply with statutory, regulatory or accreditation requirements regarding employees’ criminal records will have “Required Access” to CORI for additional adult CORI information.

In many respects, the new regulations have spurred more questions than answers. Some of the questions we are hearing include what is actually covered by the new law, does it apply to all employers or just those in Massachusetts, and how do we resolve conflicts of law questions when the new regulations appear to conflict or require more restrictive policies than other statutes like the Fair Credit reporting Act? Many of those questions will need to be addressed in the courts or through legal opinions, but here are some take-aways.  This overview is by no means exhaustive.

•    Employers who conduct five or more criminal background investigations per year must have a CORI Policy. The policy must include that the employer will: (a) notify the applicant if a potentially adverse decision may be made based on the criminal record information; (b) provide the applicant a copy of the criminal record information obtained and a copy of the employer’s criminal record policy; and (c) provide information concerning the process for the applicant to correct his or her criminal record. DCJIS is required to maintain a model CORI policy at the DCJIS website.
•    While most of the provisions apply only to iCORI users, the regulations seem to indicate that new adverse action requirements and new requirements to provide candidates with a copy of the employer’s policy apply to all users of CORI.
•    CORI checks are permitted by a CRA only after a CORI Acknowledgement Form has been completed; and the CORI subject has signed an authorization from.
•    Employers must verify a subject’s identity if a criminal record is received from the DCJIS, and the information is to be closely compared with the information on the CORI Acknowledgement Form and any other identifying information provided by the applicant.
•     If the information in the CORI record provided does not exactly match the identification information provided by the applicant, a determination is to be made by an individual authorized to make such determinations based on a comparison of the CORI record and documents provided by the applicant.
•    An employer (or other decision-maker), must provide a copy of any criminal record information in the employer’s possession before questioning an applicant about his/her record. (§19)
•    When an adverse decision is made based on a criminal record, the employer (or other decision-maker) must give the applicant a copy of the record the decision is based on. (§19)
•    Where adverse action is contemplated based on the results of a criminal history background check (regardless of source), the applicant will be notified immediately, provided with the source(s) of the criminal history,  and given an opportunity to dispute the accuracy of the CORI record.
•    When adverse decisions are based on CORI, subjects shall be provided a copy of DCJIS’ Information Concerning the Process for Correcting a Criminal Record. See: http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf
•    CORI subjects have a right to inspect and obtain a copy of their own records. (§35)
•    Section 21 covers reporting rules of CORI for convictions, non-convictions, pending cases, and special cases for higher level offenses.
•    Both a ‘DCJIS Model CORI Policy’ available at http://www.mass.gov/eopss/docs/chsb/dcjis-model-cori-policy-may-2012.pdf  and  a ‘CORI Acknowledgment Form’ are made available.  The CORI Acknowledgement form is required of organizations using a Consumer Reporting Agency (CRA) for CORI criminal background checks: http://www.mass.gov/eopss/docs/chsb/fillable-cori-acknowledgment-form-organizations-using-a-cra.pdf
•    Reports may not be stored physically or electronically unless it is by a “decision maker,” creating a problem for CRA’s who are required to retain information to comply with provisions of the Fair Credit Reporting Act.

Items  EXCLUDED from the definition of CORI are the following:

o    information regarding criminal offenses or acts of delinquency committed by
any individual before  the individual attained the age of 17 unless the individual was adjudicated as an adult;
o    photographs, fingerprints, or other identifying data of an individual used for
investigative purposes, provided the individual is not identified;
o    evaluative information;
o    statistical and analytical reports and files in which individuals are not directly
or indirectly identifiable;
o    intelligence information;
o    information regarding any offenses which are not punishable by incarceration;
o    public records as defined in M.G.L. c. 4, § 7(26);
o    daily police logs;
o    decisions of the Parole Board;
o    published records of public court or administrative proceedings;
o    published records of public judicial, administrative, or legislative
proceedings;
o    federal criminal record information; and
o    Anything otherwise excluded by law.

If you conduct more than 5 criminal checks in the Commonwealth of Massachusetts per year, or if you are a CRA conducting criminal searches in Massachusetts, contact your legal counsel to determine what changes are required to your current processes and forms.  Violations are punishable by fines up to $5000, with additional penalties and potential criminal charges if the violations are found to be willful or criminal. The new CORI regulations are available here.

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Here’s a question for you: What would you do with an applicant who has a 37 year old open warrant for first degree murder? It sounds far-fetched, I know. But trust me, I didn’t make this up.  Meet Bobby Coley, 63, of Southeast Washington D.C.  Last week the Montgomery County, Virginia sheriff’s department confirmed the results of a commercial background check that uncovered the open warrant.

Coley was applying for a temporary position, which prompted the background check.  The background investigation turned up the warrant, and the temp agency instructed Coley to go to the Sheriff’s department to clear it up.  Without any further prompting, Coley voluntarily went to the sheriff’s office to take care of the open case, and was told it was for a first degree murder charge dating back to 1975.  “We weren’t finding anything, and so we finally looked in judicial case search and we actually saw that a warrant popped up under that name, Bobby Coley, and it said, ‘first-degree murder,’” Montgomery County Sheriff Darren Popkin said.

News agencies have reported the specifics of the 1975 case, ripped straight from an episode of Cold Case. The victim, Leopold Lynwood Chromak, disappeared on July 26, 1975. Two days later his wife contacted police and reported him missing. According to MSNBC, in 1984, a detective learned that the missing person case was actually a murder-for-hire, and that Chromak’s wife, Frances, had hired three men — Griffin, Smitty and Bobby Coley — to kill her husband. According to police documents, the woman said her husband was abusive and had beaten her. The three men allegedly smothered Chromak at Winexburg Manor Apartments in Silver Spring, Md., wrapped his body in a rug or carpet, took it to a van and dumped it along Central Avenue. His body was never found.

Coley was originally held by authorities, but ultimately released last week based on the lack of evidence.  Montgomery County has re-opened the investigation, but investigators will need to start from scratch. Mrs. Chromak has changed her name and disappeared, and the original anonymous informants are also long gone.

So back to Mr. Coley, and what to do about that open warrant.  Does a 37 year old, first degree murder conviction make Mr. Coley, who happens to be a member of a protected class, unemployable? I thought it would be interesting to apply the new EEOC guidance to this real life example.  While I don’t have all of the facts, just bear with me.  This is for illustration purposes only.  So here it goes:

For reasons we covered in last month’s BTW, the EEOC presumes that the use of any criminal history is potentially discriminatory, so the burden shifts immediately to an employer to defend the use of the information in their hiring process.  So the first step in using any criminal history information in an employment decision is to demonstrate job relatedness consistent with business necessity.  There are essentially two ways outlined in the guidance to do this. The first is with a validation study, which is, for all practical purposes, non-existent.  So we will go with the second method: conduct a targeted screen with a very tight nexus to the position, and a) apply the Green factors (nature of offense, time elapsed and nature of job).  For good measure,  b) conduct an individualized assessment, which, while not mandated by Title VII, is strongly advised.
The 63-year-old Coley has been in and out of federal custody on various charges since 1968. In fact, he was in the D.C. jail when the arrest warrant was filed in 1984. He wasn’t detained afterward and apparently never knew of the warrant. Applying the Green factors, let’s look at the nature of offense, time elapsed and nature of job.  We don’t know much about the nature of the job, other than it is temporary work.  Let’s assume it is an hourly position that does not involve public interaction, or exposure to children or the elderly, or any people, for that matter. So looking next at time elapsed, a significant amount of time has passed since the issuance of the warrant. 37 years is a long time. And recidivism studies show that the risk of a repeat offense reduces with the amount of time lapsed. So far, so good, for Mr. Coley.

Looking at the nature of the offense, we have a few issues to discuss. First of all, the offense we are looking at is an open warrant—not a conviction.  The guidance is pretty clear that arrests are not definitive, people are innocent until proven guilty, and certainly in this case, there is no evidence available due to the age of the case.  But it is an open case.  And the charge is First Degree Murder. It doesn’t get much more serious than that.

So in the spirit of the new guidance, we move on to the individualized assessment.  One next step would be to question Mr. Coley about the underlying facts surrounding the warrant. Let’s assume he denies everything. Do you believe him? The guidance allows for employers to make a decision based on the credibility of the candidate and the responses concerning the underlying conduct of the offense.  What about the other string of convictions alluded to above—the various charges since 1968, and the jail time served in 1984? Again, giving Mr. Coley the benefit of the doubt, if he last served time in 1984, 28 years ago, he was 35 years old.  And the studies show that the older an individual is at the conclusion of their last sentence, the less likely they are to re-offend. Has he completed any rehabilitation? Has he been successfully employed since his release?  Perhaps he has some character references that can vouch for him.

Do you hire Mr. Coley? Admittedly, I have played around with the facts here, but in most scenarios given the assumptions I have made here, the EEOC would say hire this fellow. Do you agree?

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