EmployeeScreenIQ Blog

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!

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Over the past few years we have written countless posts about the EEOC and various State governments seeking to be progressive and give those with criminal records a second chance.  Their intentions are always good, however, we all know how this story ends.  I certainly don’t argue the merits of their ambition to make good for all in the world, but….the old adage; screw me once, shame on you, do it twice shame on me, seems to fit nicely here.

The Rhode Island Public Transit Authority (RIPTA) has now come under scrutiny because they hired two men with previous criminal records.  Again, a valiant effort to progressively make the world a better place, but, as we have always said, not everyone is suited for every position.  Should these men have been placed in this particular job? Should they have been given a second chance? Not our call to make, however, I think the EEOC will have a position or argument if they make future decisions based on this situation.  Time will tell!

According to WPRI.com Eyewitness News; RIPTA hired two ex-convicts as drivers for their RIde program, which serves the elderly and disabled. The men had lengthy criminal records and had served time at the ACI. They said the men profiled in the piece are no longer behind the wheel of a RiDe bus, but it is unclear if they were given job placement elsewhere within the agency.

The entire story reminds me of an old quote by Albert Camus;
“The evil that is in the world almost always comes of ignorance, and good intentions may do as much harm as malevolence if they lack understanding.”

RIPTA puts brakes on hiring people with criminal records

The head of the Rhode Island Public Transit Authority has come under fire after the agency hired two men with criminal records to drive buses transporting the elderly and disabled.

Chief Executive Charles Odimgbe described it as a pilot program that has been discontinued. He said it reintegrated former criminals into society.

Thomas Deller, chairman of the agency’s board, praised the program. But board member Maureen Martin told Odimgbe that hiring men with criminal records raises passenger safety issues.

The Amalgamated Transit Union accuses Odimgbe of undermining bus service through attempted cost-savings.

The board on Monday did not discuss the hirings, first reported by WPRI. Deller says the board will take up the question another time.

The Senate Committee on Housing will investigate.

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Yahoo! Sports is reporting that President Obama has reached out to Philadelphia Eagles owner, Jeffrey Lurie to congratulate him for giving Michael Vick a second chance.  And while I applaud Vick for turning his life around and for the monster season he is having, I can’t help but feel that the President shouldn’t have made that call.

As we all know by now, it is incredibly difficult to find employment in this country right now.  It is doubly hard if you have criminal record.  It is no secret that the Obama administration would like to see former convicts find work so that they don’t turn back to crime.  Of course, this is a admirable stance.  However, it cannot come at the expense of employers, something the Obama administration recognizes with their own hires, but not with their policies.

Does anyone actually believe Michael Vick could have gotten a job at the White House or any other government agency for that matter?  We would have never passed a background check.  Now, I’m not suggesting that the government should abandon its employment screening policies.  What I am suggesting is that it is hypocritical to commend an employer for hiring those with a criminal past, when you, yourself would not.  I am also suggesting that the government’s drive to curb the use of background checks or the information they are allowed to use in a hiring decision runs counter to their own hiring policies.

I also think that if the president truly wanted to congratulate the team, he should have done so 16 months ago when they first signed Vick.  It’s easy to do so now that the coast is clear so to speak and when Vick is having all this success.  Would he have called if Vick was still riding the bench or was waived? Would he have called if Vick returned to criminal activity?

P.S. Just to prove I can play nicely with the Democrats, kudos to Pennsylvania Governor Ed Rendell for saying that we’ve become a country of wusses in response to the postponement of this week’s Eagles’ game due to a blizzard on Sunday.

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I just read another article detailing the trouble ex-convicts are having finding work due to their criminal records.  And make no mistake, this is a serious problem.  However, it’s a problem that is difficult to fix.  Employers have every right to be concerned about the potential risks of hiring those with adverse information found on their employment background checks.  Likewise, our states have every right to be concerned about criminal recidivism due to the inability to make on honest living.

Over the last several years, we’ve heard many a politician and advocacy group clamor for the abolishment of background checks and, or curbs on their use.  We’ve seen employers being sued for not hiring those with criminal records.  But let’s look at this from another angle.  There are exponentially more people without criminal records looking for work than those with them.  Would it be fair to those who have not run afoul of the law to compete on a level playing field against those that have?  One can hardly argue that if all else is equal, that the person without the criminal record is a safer bet.  Taking away this factor from an employer’s consideration would be like saying that you cannot favor a candidate with a college degree over someone without one.   You can’t just heap this on the private sector and tell them to ignore this information.

I agree that this is a serious issue, but if the states and federal government are so concerned about this, they ought to take a look at their own hiring practices.  Are they actively hiring those with criminal records?

It’s A Bad Time For Job Seekers With Criminal Records- LA Times

Eddie Lemon has an associate’s degree from Taft College near Bakersfield. He’s certified to work as a sheet metal operator and to drive a forklift. He has experience as a dishwasher and a cabinetmaker.

He also has a criminal record.

The 47-year-old Lemon believes that has made it all but impossible for him to find a job in one of the worst economies in decades. And as prisons are forced to reduce their inmate populations because of overcrowding and budget shortages, some economists fear that could lead many of them back to a life of crime.

“In a bad economy, there are fewer jobs, and when people don’t have jobs, they’re more likely to commit another crime and get sent back to prison,” said John Schmitt, a senior economist at the Center for Economic and Policy Research, a Washington think tank.

It’s never been easy to get a job after getting out of prison. Most employers are hesitant to hire ex-offenders. They typically have limited education and spotty work experience, and they may have seen their skills atrophy during their time in lockup.

But what’s different now, experts say, are two trends that have dimmed employment prospects even more.

One is a severe contraction in industries such as manufacturing and construction that have traditionally been more open to hiring people with checkered pasts. The other is a rise in the number of former inmates looking for work, as state prisons and county jails try to reduce their inmate populations to save money.

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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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There have been a few studies conducted in the United States covering recidivism rates of offenders and ex-convicts. Anything above .0001% is virtually why the employment screening industry even exists. We have written in the past about our own domestic recidivism rates but have yet to post anything outside the US. I found this article discussing these staggering rates in Canada. The Winnipeg Sun is reporting that the re-offending rate in some cases is as high as 100%. The article throws out some incredible, almost unbelievable numbers about recidivism. The author summarizes by saying if Manitoba’s corrections branch is to rehabilitate criminals, they’re not doing a very good job! Do you do background checks on your Canadian applicants? I hope so!!

Re-offending rates are staggering

If the main objective of Manitoba’s Corrections branch is to rehabilitate criminals, they’re not doing a very good job.

At least according to their own numbers released by the Opposition Tories Tuesday, which show the rate of re-offending in some cases is as high as 100% for young criminals.

The most recent data from the last three months of 2007 shows 75% of adult inmates released from provincial jails were charged with another offence within two years of completing their sentence.

The numbers include charges for new offences and for breaching conditions of release.

It’s an astonishingly high number and it confirms what many of us have observed anecdotally for years — our courts/corrections system has evolved into a revolving door of justice where criminals re-offend over and over again.

The 75% recidivism rate for the last quarter of 2007 is the highest in at least five years, according to the data. Which means the problem is getting worse, not better.

The recidivism rates for young offenders during the same period are even more staggering.

In the three-month period from April to June 2006, 100% of young offenders released from youth custody were charged with another offence within two years.

That means every young offender in Manitoba who completed a youth jail sentence between April 1 and June 30 that year was charged with another offence within the following two years.

That’s an incredible statistic and a glaring example of what a massive failure our justice system is.

What’s equally startling is not once has the recidivism rate for young offenders in custody dropped below 75% since 2002.

Most quarters it ranged between 80%-95%. It’s a horrible record.

The stated objective of the Youth Criminal Justice Act is to rehabilitate young criminals and help them transform their lives.

It’s obviously not working. Even in deferred custody cases — where young offenders serve their sentences in the community with conditions — the recidivism rate is as high as 85%-90%.

There are obviously no easy solutions to bring down recidivism rates for adults and young offenders. But whatever our courts and jails are doing now is not working.

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Utah Representative Jason Chaffetz (R) does not want the Census Bureau to hire anyone with a criminal record.  “Allowing individuals with criminal records to be enumerators, who go out into the public and walk up to people’s homes and knock on doors, can have serious detrimental effects on the American people’s confidence in the census,” Chaffetz said.

Rep. Jason Chaffetz Wants Census to Hire No Criminals

And while I applaud his efforts to protect our nation’s citizens, his proposal will get the undivided attention of the EEOC who is aggressively pursuing employers that impose what they believe are discriminatory hiring practices on job applicants.  They also are trying to curb criminal recidivism to get former convicts back to work so that they won’t turn back to crime.  Their argument is that when conducting employment background checks employers need to look at the crime to determine job relatedness.  They also need to consider other factors such as severity, how long ago it took place, whether the person is a repeat offender, etc.

In my opinion, there are certainly going to be some crimes that the Census Bureau should have a zero tolerance policy on.  There will be others that really won’t amount to much.  Take for instance check fraud in the state of Texas.  Sounds like a pretty serious crime, right?  In actuality, a person is charged with check fraud if they bounce a check for greater than $5.00.  Oftentimes, the individual never knows that they have been prosecuted for the offense and the only thing they need to do to have it taken care of is to make good on the amount of the bounced funds.  Now, in other places, check fraud is a very serious offense.  There are many more instances of convictions like this and it wouldn’t really be practical/fair to reject candidates such as these.

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Last year, the state of New York amended their general business laws to force businesses to consider certain factors in their hiring decisions when their job applicants had criminal conviction records.  (New York State Correction Law Article 23-A, Section 753 “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”.) The law was aimed to help former convicts get jobs.  To comply, businesses that conduct background checks have to follow guidelines set forth in Article 23-A before taking adverse action.  The guidelines focus on the seriousness or severity of crimes, job relatedness of the criminal activity, how old the record was, if the person was a repeat offender, etc.

All has been pretty quiet since the law was enacted . . . until now.  Check out this editorial we found in today’s New York Times.  Clearly, they are prepared to begin enforcement.  If you are interested in learning more about Article 23-A, check out our podcast with Seyfarth Shaw’s, Pam Devata.

Denied A Chance for Honest Employment

Among the leading causes of recidivism are employment policies in the private and public sectors that discriminate against former offenders and too often drive them back to jail. New York State first addressed this problem more than 30 years ago with laws protecting the employment rights of people with criminal convictions. But two investigations by Attorney General Andrew Cuomo suggest that some companies are finding ways around these laws.

Employers in New York can, of course, review an applicant’s history. But they cannot deny an applicant a job on the basis of a conviction without considering whether the offense bears a relationship to the job being sought. New York law also forbids employers from shutting out qualified applicants because of convictions that are sealed or dismissed, minor infractions like speeding tickets or for arrests that do not lead to conviction.

In a recently completed investigation, the attorney general found that ChoicePoint, a nationally known employee screening company, was involved in creating an online job application system for employers that automatically disqualified thousands of applicants who disclosed criminal convictions. Moreover, investigators found that the company had recommended to employers that they disqualify applicants based on sealed or dismissed convictions and legal outcomes that are regarded as violations — not crimes ?? under New York law. One ChoicePoint client violated state law by withdrawing conditional job offers after information that should not have been taken into account turned up in background checks.

In a separate investigation, the attorney general found that RadioShack also had ignored the law by rejecting job applicants whose violations had been sealed, set aside or deemed to be minor. Both companies have agreed to pay financial penalties and to obey the law, without admitting or denying wrongdoing. But the cases raise the disturbing possibility that the practices they engaged in may be more widespread than supposed in a state that has been a national model in giving former prisoners a chance at honest work.

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Ok, I hate to even write this posting because like many of you; I am a huge Pee-Wee Herman fan!  However, I would be negligent if I didn’t.  Hollywood makes it so easy.  I could spend the rest of my life writing blogs about stories they create!!  Today is no exception.  Pee-Wee Herman is mounting a huge comeback.   “The Pee-wee Herman Show,” opening next month in downtown Los Angeles at Club Nokia theater, cost millions to produce. It boasts 11 actors, 20 puppets and marks the show’s first production since 1982.

What would a background check on Pee-Wee Herman look like?  It wouldn’t be pretty, I’ll tell you that much!  According to Wikipedia:

In July 1991, while visiting relatives, Reubens was arrested in Sarasota, Florida for masturbating publicly in an adult theater while watching a triple bill of Catalina Five-O: Tiger Shark, Nurse Nancy and Turn up the Heat. Detectives would periodically visit pornographic theatres and observe the audience, arresting those engaged in indecent exposure. After having arrested other men, a detective who had been observing Reubens stopped him while he was on his way out. While detectives looked at his driver’s license, Reubens told them, “I’m Pee-wee Herman”, and then offered to do a children’s benefit for the sheriff’s office “to take care of this”. The next day, after a local reporter recognized Reubens’ name, Reubens’ attorney made the same offer to the Sarasota Herald-Tribune in exchange for withholding the story. This was not Reubens’ first arrest in the county; in 1971 he was arrested for loitering and prowling near an adult theater, though charges were later dropped. His second arrest was in 1983 when Reubens was placed on two years’ probation for possession of marijuana, although adjudication was withheld. The night of the arrest Reubens fled to Nashville, where his sister and lawyer lived, and then to New Jersey, where he would stay for the following months at his friend Doris Duke’s estate.

I wish it stopped there, but unfortunately it doesn’t.

In November 2002, while filming David La Chapelle’s video for Elton John’s “This Train Don’t Stop There Anymore”, Reubens learned that policemen were at his house with a search warrant, acting on a tip from a witness in the pornography case against actor Jeffrey Jones, finding among over 70,000 items of kitsch memorabilia, two grainy videotapes and dozens of what the city attorney’s office characterized as a collection of child pornography. Kelly Bush, Reubens’ personal representative at the time, said the description of the items was inaccurate and claimed the objects were “Rob Lowe’s sex videotape and a few 30- to 100-year-old kitsch collectible images”. Reubens turned himself in to the Hollywood division of the LAPD and was charged with possession of obscene material improperly depicting a child under the age of eighteen in sexual conduct. The District Attorney looked at Reubens’ collection and computer and found no grounds for bringing any felony charges against him, while the city attorney brought misdemeanor charges against Reubens “on the very last day” that the statute would allow.Reubens was represented by Hollywood criminal defender lawyer Blair Berk. In December he pleaded not guilty through Berk, who also complained that the city attorney failed to turn over evidence to the defense, which City Attorney Richard Katz countered that prosecutors were not required to do until after arraignment, after which they did; neither side disclosed the contents.

Now just to be clear, we would never, EVER use Wikipedia for background checks, its simply a source.

Mr. Rubens has several offenses in his lifetime.  Criminal recidivism rates for any offender is noteworthy and certainly justifies an employers right to screen employees.  For you screening professionals out there, we understand this opens a quagmire of legal issues under California reporting laws; we can debate that later! Lets hope Pee-Wee (Paul Rubens) is using this as an opportunity to turn his life around!

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This August I wrote about the Blumstein study on criminal recidivism rates.  Ironically, there is a lot of news this week about several states including California, releasing prisoners early due to prison overcrowding!  Now, before you throw your coffee mug through your computer screen allow me to clarify this.  According to Time Magazine:

No state is freeing sex offenders, murderers or habitually violent criminals. Most inmates who are eligible for early release are those who were caught with relatively small amounts of drugs. And generally, early-release guidelines require that inmates be within six months of their official exit date.

Still however mistakes will be made.  There is an old adage, “I didn’t become a criminal until I went to Jail.” Are we putting dangerous people into society? I only raise the question, I don’t really have a strong opinion either way.  One would hope that these offenders embraced rehabilitation programs and will re-enter society as upstanding citizens.  It does beg the question; “Is your employment screening program strong enough to vet these individuals?”  We now have three states; California, Colorado and Kentucky releasing inmates early.  Is your state next?

Do Early-Release Programs Raise the Crime Rate?

Americans famously overspent during the 1990s and early ’00s. It’s a familiar story: we mortgaged oversized homes to buy colossal TVs. But you may have heard less about another commodity we binged on: justice. Americans indulged in an enormous criminal-justice spending spree during the past 25 years, locking up more and more offenders (particularly for drug-related crimes) for longer and longer sentences. Total spending on incarceration rose from $39 per U.S. resident in 1982 to $210 per resident in 2006, according to the most recent figures from the Justice Department. We now spend $62 billion a year on corrections, and about 500 of every 100,000 Americans are behind bars. As recently as the 1970s, the figure was only 100 in 100,000.

Owing to budget crises, many states are now having trouble affording to keep so many people locked up. Some states are cutting incarceration expenses by consolidating prisons; some are trying to slash prison-food and health-care costs. But real savings come only when you reduce prison populations, and so some states — including California, Colorado and Kentucky — have begun releasing inmates early. “The pressure in state legislatures all over the country is to bring down the populations, because we just can’t afford the level of punishment that we’ve had the last 20 years,” says Joan Petersilia, a criminologist at Stanford Law School.

Criminologists say little research has been conducted to determine whether early-release initiatives lead to higher crime rates, although some prisoners who get out will undoubtedly commit crimes that they wouldn’t have been able to commit if they were still behind bars. “There’s no risk-free early-release program,” says Jeremy Travis, president of John Jay College of Criminal Justice in New York City. But early release doesn’t simply mean opening the gates and letting inmates run for it. No state is freeing sex offenders, murderers or habitually violent criminals. Most inmates who are eligible for early release are those who were caught with relatively small amounts of drugs. And generally, early-release guidelines require that inmates be within six months of their official exit date.

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