This week I had the pleasure of going to New York City for the Richard Netter Conference on Criminal Records and Employment at the Cornell University ILR  School.  I had heard about the conference a few months back and was happy to join other representatives from the National Association of Professional Background Screeners (NAPBS).  In what I anticipated being a complete hatchet job on the screening industry, it turned out that we agree on many more points than we disagree; and that’s a great start! The focus of the conference was a to have a better understanding of and a meeting of the minds on issues such as civil rights of former offenders, right to work, and other societal issues of the day related to criminal activity in the U.S..  The good news is there was a lot of broad range of topics discussed in this nine hour conference. The bad news is it has given me a lot to write about and Nick, even more to edit!

I anticipate that several posts will come out of this experience.  The first will be a general recap of the sessions and the questions raised.  I intend to drill down further on each of these issues and panels in future posts.

The keynote speaker was Cornell William Brooks, Esq.  Cornell is the President and CEO of the New Jersey Institute for Social Justice.  Mr. Brooks is a civil rights advocate and frequent speaker on criminal reentry into the workplace.  Brooks gave an excellent speech, set the stage for the issues that would be discussed and touched on many of the topics that face minorities today when trying to re-enter society.

The first panel was, “What are the issues of uniformity/inaccuracy in the reporting of criminal records? How do Consumer Reporting Agencies (CRA’s) operate?” In addition to Montserrat Miller, the lobbyist for NAPBS, the panel also included scholars and a non NAPBS member screening company.  In my opinion this panel proved the importance of NAPBS membership, specifically because of the standards our members strive to achieve.  Professor Shawn Bushway, a frequent speaker and author of studies on criminal recidivism gave an overview of his research and, what I believe to be, some conclusions based on very old data.  For instance, in his research he shows criminal repositories to have more accurate dispositions than actual county court records.  Those of us in the screening industry and many HR professionals know this couldn’t be further from the truth.  Admittedly he says the data is older and needs updating.

The second panel, “Title VII, Adverse impact and criminal records as a selection device matrix approaches, and the uniform selection guidelines” was well received.  The panelists were mostly attorneys on both sides of the issues.  I felt the most impactful was P. David Lopez, General Counsel of the EEOC.  He raised many controversial issues, such as the EEOC not being convinced that negligent hiring suits are not as important as perceived discrimination of ex-offenders in the workplace.  Mr. Lopez made an assumption that negligent hiring lawsuits have been on the decline. Personally I believe that begs the question; are they on the decline because more companies are doing background checks?

After our lunch address we had our third panel, “What do employers need to know when using criminal records? What is relevant to hiring? Employer’s fear of negligent hiring suits.”  I was really interested in this panel mainly because a true industry perspective would be on the panel, a member of the NAPBS Board of Directors., he was also joined by Alfred Blumstein and Kiminoi Nakamura, authors of a oft-cited controversial study focusing on criminal recidivism.  This study followed 88,000 first time offenders from 1980 in the state of New York.  The study showed a very low rate of recidivism for these “first time offenders”, however the conclusion derived from the research is full of holes due to a number of scenarios that we not considered.  The study only covered first time offenders, it does not track crimes outside of New York, and recidivism assumes that the person has actually been caught. We have covered this study a few times in the past.

Our fourth and final panel had the most impact on the audience.  “Restoration Issues: What employment models work? Is ban the box an answer to refusal to hire?”  The final speaker on this panel was an ex-convict who spent 19 years in prison for a 1992 manslaughter conviction.  Still out on parole, Anthony Cardenales is now a supply chain manager at a well known recycling company. Mr. Cardenales is a poster child for giving someone a second chance and he gave an excellent speech to support it.  The owner of his company, WeRecycle, was also in attendance and gave a glowing recommendation for other employers to follow suit and give a chance to ex-offenders.  The tone was that background checks weed out possible good employees and employers should look beyond what is on a rap sheet.  I posed the question to him, “do you still conduct background checks?”  His indicated that he does.  He said that they are worried about theft and do their best to identify those with significant theft records.  I still struggle with giving a chance to someone who clearly killed another human being over someone who took property from another, but everyone is entitled to take their own risks in business.  The most troubling speaker was an attorney that made the claim that our industry uses extreme examples of sex offenders trying to work with children.  She made it look like folklore, like a boogey man that doesn’t exist.  Perhaps she has not been following the recent events at Penn State and Syracuse.  With over 700,000 registered sex offenders in the United States, all looking for work at some point, I hardly identify this as extreme.  Putting these types of offenders aside, she must have no understanding for the other violent, dishonest and non qualified people that might be trying to work for someone’s company.  We have always stated that there is a job for everyone, however, there is sometimes just too much risk when there is no protection to an employer, their employees or their customers .

There will be more to come on this conference in the coming weeks!

We reported earlier this week that the state of California had banned the use of E-Verify for the state’s employers.  It has since been pointed out and confirmed that state has not banned the use of E-Verify, but instead banned anyone in the state (i.e. state, county, local governments) from mandating its’ use.

We apologize for the oversight on our behalf.

(Reuters) – Sen. Charles Schumer said on Sunday he would introduce legislation requiring major utility plants to run background checks on employees to help prevent security threats against power facilities.

Citing a recent U.S. Department of Homeland Security report that found insider sabotage at electric, gas, and water utilities was a significant threat to U.S. national security, Schumer said al Qaeda was known to be recruiting extremists to infiltrate and work in sensitive areas such as utilities.

“Power plants and utilities present a tempting and potentially catastrophic target to extremists who are bent on wreaking havoc on the United States,” Schumer said.

“Thorough background checks on all workers with access to the most sensitive areas of these operations are a must,” he said, calling the DHS report “a wake-up call that we must ensure those with access to our most critical infrastructure — and our power supplies — are not compromised by extremist influences.”

Currently only nuclear power plants are required to conduct FBI background checks on employees with unescorted access to facilities.

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The Fayetteville Observer is reporting that Cumberland county, North Carolina plans to “ban the box” on all government jobs.  For those not familiar with the term, “ban the box” refers to employers excluding the question on their job application which asks the applicant if they have been convicted of criminal activity.  While we’ve written extensively on this topic, I’ve never been a vocifierous supporter or detractor of this measure.

But given the EEOC’s recent hearing on the use of criminal background checks, I’m beginning to warm to the concept.  Banning the box will effectively give everyone a fair chance to be interviewed for a given position.  While not asking about an individual’s criminal history on the application will just delay this eventually coming out, it will give the applicant the opportunity to shine in the interview and even come clean about their past, offering an explanation about what happened and when.

Of course, the employer will still conduct a background check, but at least the candidate will have been allowed a fair chance to convince the employer that they are the right person for the job.  Perhaps measures such as these will make the EEOC moderate their position.

Oh don’t mind me.  I’m just playing word association with the following phrase “EEOC Meeting to Discuss Use of Criminal Records”.  Feel free to send in your own suggestion for my word cloud above.

Why the sarcasm?  Where to start?  We asked earlier this week if the EEOC was willing to have an honest and open dialogue on employers’ use of criminal background checks. We got our answer pretty quickly.  If the list of those who would testify wasn’t answer enough, check out the press release which the EEOC distributed just hours after the 4 hour meeting was concluded.  The key word here is “distributed” since it was clearly “written” well before the meeting.

Instead of listening to both sides of the issue, the EEOC paraded out a cadre of individuals damning the use of criminal records in the hiring process.  No one was there to talk about the liability employers face.  No one was asked to talk about the victims of violent criminal activity in the workplace.  No one was called on to talk about the mounting losses employers shoulder due to internal theft.  Oddly, no one was there to discuss the nation’s largest consumer of employment background checks, the U.S. government whom the last time I checked, the EEOC was a part of.

They favored testimony from the Department of Justice who offered the Blumstein study on the point of redemption as ironclad and unimpeachable rather than as a limited study, based on limited criminal activity, based on a limited geographical area.  They listened to testimony that the FBI’s database only includes about 50% of all criminal records.  Never mind that those in our industry use far more accurate methods to conduct criminal background checks.  They heard testimony that talked about employers running roughshod over applicants’ rights and ignored that fact the the FCRA and state laws provide protection.

According to those in attendance, here’s where it stands.  There are two EEOC commissioners who think that the commission should overhaul their guidance on employers use of criminal background checks.  There are two commissioners who either think that the current guidelines are sufficient or should be slightly modified.  And there is one commissioner who seems to be in the middle and will most likely be the ultimate deciding factor.

In the meantime, the EEOC has allowed a 15 day comment period on the issue.  Perhaps they’ll consider opinions counter to theirs’ then.  I’ll be holding my breath until then.

Stay tuned.  We have definitely not heard the last of this issue.

P.S. Once the smoke clears out of my ears, I’ll publish some of the materials that were provided to the EEOC in support of criminal background checks.

We just published The Verifier XXIII, Summer 2011 Edition, a publication intended as an educational tool and information resource for human resource professionals or anyone interested in keeping abreast of recent employment screening and background check industry developments.

Highlights of this issue include the following:

Articles:

• Trends in Employment Background Screening: 2011 Results
• Introducing iEmployeeScreen mobile: Background Screening News at Your Fingertips
• A Modest Proposal: Social Network Background Checks Still Concern Me
• Background Screening Under Fire by The EEOC and Others
• Background Screening and The Candidate Experience

Announcements and Legislative Updates

• EEOC Hearing Scheduled on Use of Criminal Background Checks
• Connecticut Passes Law to Curb Use of Credit Reports
• Maryland Gov. Enacts Law to Curb Use of Credit Reports
• EmployeeScreenIQ Gives Back to the Community

Check it out!

I’ll keep this one short and sweet.  Kudos to Florida Governor Rick Scott for vetoing a bill that would have allowed some volunteer workers with in-home social service groups to avoid background checks.

Who in their right mind would think this bill was a good idea?  Haven’t we already seen enough stories (especially out of Florida) which deal with abuse of the elderly and those with disabilities?  Haven’t we seen our fair share of stories these folks are robbed blind by people offering in-home care?

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For what I believe is my fifth time, I had the pleasure of representing my industry, along with 15 other colleagues for the annual NAPBS Fly-In.  The National Association of Professional Background Screeners (NAPBS) has been organizing this important event for the past six years.  It has quickly become one of the most important things we do as an industry association. Having a voice in Washington and a and an audience with the federal government continues to allow us to impact the legislative process.  Over the years, many bills have been introduced that would have had an adverse effect on all of our nation’s employers use of employment background checks.   In many cases these bills are drafted without input from the private sector.   If simply passed as drafted, these bills would result in significant unintended consequences both on individuals and industries without our perspective and insights.  Thankfully, our lobbying efforts have paid off as our perspective and insights are regularly sought by our legislators so that they may be advised of such consequences.  This year was no exception.  Among the most important issues we focused on this year, was the EEOC’s increased scrutiny over the use of employment background checks.  We feel that they have considerable misperceptions and what we do and an industry and how we do it and have worked hard over the years to better educate them on these issues; particularly as it relates to the use of criminal records and credit reports. We had three separate meetings with them last week and while the effect of our efforts isn’t known at this time, we at least were heard.  One of the nice outcomes of our meetings is that we were able to convince them that credit scores are not used by employers to make hiring decisions.  We still have a long way to go but I believe that we have identified some likeminded individuals working for the commissioners that are sympathetic to our position and willing to listen.

We also had a productive meeting with our current regulators, the Federal Trade Commission (FTC).  It is still unclear as to exactly what dual regulation will mean when the Consumer Financial Protection Bureau (CFPB) is launched.  We do know that both the FTC and CFPB be responsible for overseeing the Fair Credit Reporting Act (FCRA), the federal law that governs the use of employment background checks.   It is important to note that the CFPB will have rule making and enforcement authority; something the FTC never had.   Policy making and supervisory authority will be shared between the two agencies.  For example, the FTC will still enforce Red Flags and Disposal Rules but he CFPB will enforce other areas (to be determined) of the FCRA.  The two agencies are still working hard to flush everything out.  One thing is for sure; they will be working with NAPBS, not against us.  We are thankful to have relationship with our regulators.

There are three bills of interest we are watching closely.

• The Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFEATELU) enacted in 2005 (49 USC 31150; Pub. L. 109-59 4117), which created the Pre-employment Screening Program (PSP) for the Federal Motor Carrier Safety Administration (FMCSA).   We are working to make sure that the PSP program can be accessed by 3^rd parties (like the legislation that was passed laid out specifically) so we can access this information on behalf of our clients. Much more to come on this issue in the coming months
• The Safe Roads Act of 2011 which is a complement to SAFEATELU but adds all kinds of Drug and Alcohol Testing Provisions.  Coincidentally, while in Washington, NAPBS was able to submit comments and red-line revisions to the Safe Roads Act (S. 754) before the bill goes to mark-up today.
• The Child Protection Improvements Act which is in pilot status and aims to ensure background checks are performed on individuals working with children. The Child Protection act is important because we are working to ensure that the records are obtained from reliable accurate sources, not unreliable sources such as FBI records.  The method of using FBI records offers little protection to consumers.  I find this ironic since the bill is co-sponsored by representatives from NY and CA, both states that have the most inclusive consumer protection laws in regard to employment screening.

Overall this year’s efforts seemed to be very effective and we are hopeful that they will yield positive results for both employers and our industry.  On a personal note,  I will never forget this trip for reasons that have nothing to do with our lobbying efforts.  I arrived on Sunday, May 1^st and before I turned in for the night, I turned on the news and saw that Osama Bin Laden had been killed. Within minutes, people were celebrating in the streets.  My hotel was only 4 blocks from the White House, and I was kept up all night with screaming, cheering and horns honking through the night.  I have never been so happy to be awake so late!!

Over the last several years as employment screening has become the norm, various government agencies and others have been critical of the process.  Their reasons differ but the debate is the same, in its most simple form many that are critical simply don’t understand exactly what we do as an industry.  Many of the critics have used the same argument over the years.

• Employers use credit scores to eliminate applicants with bad credit.
• Any criminal record will ban you from employment anywhere.
• Employers are intentionally creating a second class of unemployable citizens who have criminal records.
• Having an employer run your credit will ruin your credit.

These are all false assumptions.  Pre Employment Credit Reports do NOT contain a credit score, in fact, many things that appear on a consumer credit report do NOT appear on an Employment Credit Report, such as account numbers and other information not relevant to employment. In addition, pulling these reports count as a soft inquiry, thus not affecting the overall credit score.  Under federal and many state laws, these negative things should only be used if within the scope and responsibilities of the job.  In our experience, less than 10% of employers even utilize these types of reports.

Now let’s discuss criminal records.  Like credit, simply having a criminal record would not bar one from employment everywhere.  Under Federal and many State laws the nature of the offense and conviction should be recognized and compared to the job responsibilities.  It is very important to remember, companies spend a lot of money finding and recruiting good talent.   The intent of the company is to hire the individual, not find ways to exclude them.  If the company feels the offense or conviction will be a risk to them based on the position, they may chose to look elsewhere.

As screeners, we believe there is a job for everyone.  However, there are times when because of someone’s past, they may not be the best fit for the job they are seeking.  A candidate with no job relatedness convictions and solid background and qualifications just might have the edge for certain positions; there is no mistaking this reality.  It is simply an employer’s right to choose what is best for their organization and mitigate their risk as much as possible. Organizations are simply damned if they do and damned if they don’t.  When a company decides to take a risk on someone they are then vulnerable to a Negligent Hiring lawsuit.  In a nutshell, employers are getting sued of they failed to properly screen an applicant.  If they could have known, they should have known.  If they don’t take the risk they are vulnerable to other types of suits and penalties such as violations of the EEOC.  The only fair thing to both parties is to at least allow the company knows what type of risk they may be encountering.

A recent article on the Huffington Post really takes aim at the employment screening industry and employers.  The writer mentions a recent report by the National Employment Law Project (NELP).  They cover many of the misconceptions outlined above but also falls short in many areas.  What the report fails to mention is the over 50% of applicants who simply lie and misrepresent things on their resume.  In a recent study conducted by EmployeeScreenIQ over 56% of people lie on their applications.  These include individuals with fake degrees from known diploma mills, false salary histories, misrepresenting degrees altogether and jobs they actually never had.

For critics of the process I offer two recent stories:

Mark E. Lawlor bludgeoned a women, Genevieve Orange, 29, to death with a hammer, and then raped her as she lay dying.  The photos of her body were too gruesome to be shown in the courtroom.  Her assailant was a leasing agent in her building and used his passkey to enter her apartment as she slept on her couch.  He bashed her in the head 30 times with a hammer, and 17 more times on her arms and body, an autopsy showed, then sexually assaulted her and left behind DNA that implicated him.  What was in his background? While on probation in New Jersey for an earlier crime “Lawlor moved to southern Virginia. But at 18, he drunkenly stole a truck, rolled it over and killed a friend. He went to prison for the first time. . . In 1998, while Lawlor was living in Northern Virginia, he began stalking an ex-fiancée in Great Falls. One night, he snatched her from her car by smashing her windshield and swiping the keys. He did another five-year prison stretch.”

More recently in New York a casino bus driver crashed on a NY highway killing 15 people.  This individual had a history of driving without a license and other vehicular offenses and served nearly seven years for manslaughter and grand larceny.  His two criminal convictions: for stabbing a man to death and stealing from the Police Athletic League. Williams shouldn’t even have been at the wheel – his driving privileges were suspended after he ignored tickets for speeding and driving without a license in 1995, The Associated Press reported. Now to be fair, we don’t know if the driver did anything illegal to cause the crash, but with the aforementioned convictions (especially the driving offenses), what was this person doing driving a tour bus?  This company failed to run a proper background check, they have learned the hard way.  In addition to these 15 innocent people being killed, the victims families are already filing multi million dollar suits against the company.

These cases may be extreme but we come across these things regularly.  I am curious to hear what you think?