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Shawnee (Kansas) District Court Judge, David Debenham has approved a petition to expunge a criminal record belonging a convicted murderer.  In the immortal words of Arnold Jackson from Diff’rent Strokes, I say “What you talkin bout Willis?”

Did this judge really just wipe out a murder conviction?  Nothing changed.  There was no new evidence to suggest this woman didn’t commit the crime.  Should he have the power to say “poof, now you see it, now you don’t”?

Here are the circumstances.  Kathleen Cobb murdered her boyfriend in Lawrence, KS in 1980.  She served 16 years and upon her release in 1998, got a degree in social workers degree in Wyoming and started working as a drug counselor.  This is definitely admirable and we applaud her efforts to help others.

She returned to Kansas in 2010 and began work at the Lawrence-Douglas County Housing Authority.  Again, this is a great development.  I am assuming the housing authority knew about her conviction and weighed that against the efforts and experience she had made since 1998.

That said, why on earth would a judge expunge the record.  Now, an employer will never know of the conviction if they conduct an employment background check.  It’s not even like she couldn’t get a job or her social workers license.  She’s done both.  Shouldn’t any future employer have the right to know this information?  She intentionally overdosed someone and then shot him in the back of the head.  She has paid her debt to society and by all accounts is a upstanding citizen.  But should such a heinous crime disappear like this?

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A new Indiana law further limits employers’ ability to get a full picture of an employee or an applicant’s criminal background.  If this sounds familiar, the new law is an add-on to the legislation enacted last year that went into effect July 1, 2011.

Last year the “Restricted Access to Conviction Records” law gave ex-offenders the right, under certain circumstances, to erase their criminal history. The law granted anyone convicted of a misdemeanor, or a Class D felony that didn’t result in injury, the legal right to petition the court to limit access to their criminal histories for eight years if they don’t commit any more crimes. As we pointed out, as enacted it applied only to public agencies—the courts and institutions that actually handled the case.  The resulting loophole was that there was no duty for private or proprietary commercial databases to scrub their records.

The impetus behind the law was to allow people with minor criminal convictions in their past to be able to obtain jobs. Interestingly, the law was in the news earlier this year, in April, when a reporter for the Bloomington Herald-Times discovered that that Monroe County, Indiana auditor candidate James Hans Huffman’s cocaine arrest record is was longer available from official sources. Relying on it’s own archives, the paper ran a story titled: “Auditor candidate Huffman carries 2001 cocaine arrest, but has had record blocked under 2011 law: Democrat who graduated from drug court says 2001 arrest is ‘not a secret.’” The Indiana Law Blog did a nice write up of that story, concluding that “it’s OK to lie about your criminal past if a court has authorized a restricted disclosure request.”

The new law that went into effect July 1, 2012, attempts to close that loophole in addition to strengthening the case for ex-offenders and further limiting employer’s information.  Here’s a summary of the key provisions:

Ex-offender Rights
The new law provides that, effective July 1, 2012, persons with restricted records may legally state on an “application for employment or any other document” that they have not been convicted, found guilty or found to have committed the infraction recorded in the restricted records. While this was implied by the 2011 law, this new provision clarifies the rights of the ex-offender employee or applicant.

Restrictions on Information
Also effective July 1, 2012, the law limits information that employers and providers of criminal records can obtain from Indiana courts. The law prohibits courts from disclosing information pertaining to alleged infractions where the individual:
•is not prosecuted or if the action against the person is dismissed;
•is adjudged not to have committed the infraction;
•is adjudged to have committed the infraction and the adjudication is subsequently vacated or reversed upon appeal;
It further requires records relating to an infraction to be sealed five years after the judgment for the infraction is satisfied, and provides a procedure to do so.

Employer Restrictions on Inquiries About Sealed or Restricted Records
Another provision effective July 1, 2012 makes it a Class B infraction for an employer to ask an employee, contract employee, or applicant if a person’s criminal records have been sealed or restricted. Employers who violate the law may be fined up to $1,000.

Criminal History Providers
Portions of the law that go into effect on July 1, 2013, broaden the scope of responsibility and define “criminal history provider” as a “person or an organization that assembles criminal history reports and either uses the report or provides the report to a person or an organization other than a criminal justice agency or law enforcement agency”. A CRA, a background screening company, or a commercial database would all be a criminal history provider under the new law.  The law requires a criminal history provider to:
(1) update its records annually to remove inaccurate information and information that has been expunged, restricted, or limited; and
(2) only disclose certain information relating to a conviction.

Criminal history providers will be prohibited from reporting:
•an infraction, an arrest or a charge that did not result in a conviction;
•a record that has been expunged;
•a record indicating a conviction of a Class D felony if the Class D felony conviction has been entered as Class A misdemeanor or converted to a Class A misdemeanor conviction; and
•a record that the criminal history provider knows is inaccurate.

Criminal history information may not be reported in an assembled report unless the provider updates the information to reflect changes to the official record occurring 60 days or more before the date the criminal history report is delivered.

The law also allows the attorney general and a person harmed by a criminal history provider to bring a private cause of action against the criminal history provider if the criminal history provider fails to update its records or discloses non-conviction information. Penalties may include statutory damages, actual damages including consequential damages or liquidated damages, court costs and attorney’s fees.

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And the gloves have officially come off.  If the Equal Employment Opportunity Commission (EEOC) thought that they would quietly provide new guidance (i.e. de facto legislation) to employers on criminal background checks and credit reports, the Wall Street Journal just sent the first shot across the bow.

As we have previously mentioned in some recent blogs, the EEOC is scrambling to get this guidance out by the end of the month.  Why the rush?  Check out WSJ’s editorial below.  I imagine that this is just the beginning of the criticism that will come should the EEOC make wholesale changes to the current rules without seeking public comment and by passing these rules without a vote by our elected officials.

The Hiring Police

The Obama Administration’s favorite antidiscrimination tool is “disparate impact,” which relies on statistics to allege racial prejudice, regardless of intent. The Justice Department is using it to lean on banks to lend to more minorities, and now we hear the Equal Employment Opportunity Commission wants to use it to wield more power over business hiring.

Several sources tell us the Commission is working on policy guidance that would significantly limit companies’ use of credit and criminal histories in hiring under Title VII of the 1964 Civil Rights Act. A Commission spokeswoman declined to comment by email, “citing Agency practice barring public discussion of any policy that may or may not be in development.”

No wonder. We’re told that some members of the Commission want to declare that the use of credit checks and criminal histories may have a disparate impact on African Americans and Hispanics. Nothing like the prospect of being branded a racist to force companies to change their hiring practices to suit government’s bidding. Cue the trial bar.

The irony here is thick, given that credit checks were once viewed as a way to undermine the good ol’ boy network and base hiring decisions on facts, not race. Once upon a time, too, there was a distinction between discrimination based on race, which is rightly outlawed, and discrimination based on individual ability and responsibility, which is crucial to making good personnel decisions for colleagues and customers.

A company might use a credit check if a prospective employee would have a job that handles customer monies, for instance. A child-care center might want to know if an applicant has a criminal record. Both help companies make prudent hiring decisions.

The Commission would be overstepping its legal bounds if it proceeds. Under Title VII, the Commission has the ability to “issue, amend or rescind suitable procedural regulations,” not make substantive new rules. Congress expressly permitted the use of credit and criminal histories in hiring decisions under the 1970 Fair Credit Reporting Act and subsequent amendments.

The Commission has held public hearings on the general topic of background checks that include credit and criminal histories, but it hasn’t made its prospective guidance available for public comment or sought a review from the White House office that examines new regulations. The U.S. Chamber of Commerce earlier this month wrote to Cass Sunstein, chief of the White House Office of Information and Regulatory Affairs, asking for such a review. Good idea.

The Commission’s heightened interest in wielding disparate impact over business hiring may have something to do with the pending departure of Democratic Commissioner Stuart J. Ishimaru. Once he leaves, Democrats will lose their majority on the panel, and the chance of issuing this kind of guidance will diminish considerably.

The only certainty is that such a decision would further complicate business hiring at a time when America’s millions of jobless need more potential employers. The harder government makes it to hire or fire someone, the fewer people will be hired.

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I came across this article yesterday while perusing the internet! As the unemployment crisis improves, organizations are looking for the best way to find, recruit and hire new talent.  This latest survey from Silkroad Technology uncovers where employers are in fact finding their talent!  This latest study; “Recruitment Marketing Effectiveness: Meaningful Metrics Straight From the Source” is now available via their website!

To me, the most intriguing finding is that internal sources, such as employee referrals, inside hires, walk-ins and a company’s career site, produce almost twice the number of hires as external ones, which include job search engines, job boards, print advertising, and job fairs.  I am sure my good friend Ron Bower, of the Bower Consulting Group would agree, he has been preaching this for years!  (Shameless plug for his article written a few years ago on EmployeeScreen Univeristy). You are probably asking yourself how I am going to tie this into background checks and employment screening?  I’m not, the point is you can’t have quality screens until you find good talent!

New Research Shows Where Employers Find Their New Hires

Have you ever wondered where companies find their most qualified candidates and new hires? We have the answer: referrals and their own company career sites.

SilkRoad technology, a global provider of social talent management solutions, has teamed up with more than 700 of its customers to uncover which recruitment methods yield the largest number of interviews and hires. It released its findings in a new report titled “Recruitment Marketing Effectiveness: Meaningful Metrics Straight From the Source.”

It turns out that job applications who come in through internal sources get the same number of interviews as ones from outside. However, internal sources, such as employee referrals, inside hires, walk-ins and a company’s career site, produce almost twice the number of hires as external ones, which include job search engines, job boards, print advertising, and job fairs.

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Effective on May 4, 2012, employers in Massachusetts will need to follow some new state regulations if they conduct criminal background checks through the state’s Criminal Offender Record Information (CORI).

The state’s 2010 CORI law created a new source for employers to access criminal records, and along with that access is a new set of rules and regulations.  A “Ban the Box” provision went into effect in November, privacy and data security rules in March (these provisions apply to all Mass. employers regardless if they use CORI or not), and now the next wave, relating specifically to CORI criminal background checks, goes into effect next month.

The highlights:

  • Employers who want to access 5 or more CORI reports annually are required to have a written policydescribing the method and use of the records.
  • Safe Harbor provisions for employers who use the system.
  • Written notification requirements for employers who take adverse action based on the records, including a requirement to provide the applicant with a copy of the report. This requirement is regardless of whether the employer obtains the information directly, or from a third party CRA (Consumer Reporting Agency).
  • Employers using a CRA must make certifications to the CRA that it is compliant with CORI including providing required disclosures.
  • Employers and CRAs must register for an account on the iCORI system, and undergo training and retraining as required.
  • When employers are obtaining CORI information directly, they are required to provide consent forms for each applicant, and maintain those forms for one year from the date of signature. In addition, the employer mustverify the identity of the applicant by examining a government-issued ID, and certify that the applicant was properly identified.
  • Employers are subject to storage rules, and must store copies of CORI reports in a secured, locked location with limited employee access. Electronic CORI records must be password-protected and encrypted and may not be stored using public cloud storage methods.
  • Employers may not retain CORI reports for longer than seven years. If an employer disseminates CORI outside of its organization, the employer must maintain a detailed log, which must be maintained for at least one year for audit purposes. Employers may be subject to audits and complaints for failure to comply with the law.
  • Penalties for violations of the CORI Law include civil fines of up to $5,000 for each knowing violation of the CORI law, and some violations may lead to criminal prosecution.

More information about this new law will be distributed as the regulations are reviewed and as guidance becomes available.  Please note that employers are never permitted to require an individual to provide a copy of his or her own CORI.  Also note, that unless mandated to do so, employers are not forced to use the CORI system.  County criminal record searches are still allowed (and recommended).

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ap steve jobs apple wy 120209 wblog Steve Jobs FBI File: Bomb Threat, Drug Use Noted in Background Check

In 1991, Apple’s Steve Jobs was asked to submit to a background check in order to secure his appointment by President George H.W. Bush (not Dubbya).  I found two of the finding interesting.

  • There were many allegations of drug use
  • A common theme among those interviewed cited an integrity issue.

Now, let’s just say that this wasn’t Steve Jobs.  How would this affect your average Joe’s ability to secure a job?

Check out this excerpt from ABC News concerning Jobs’ alleged drug use:

“[Name redacted] also advised that he was aware that Mr. Jobs used illegal drugs, including marijuana and LSD while they were attending college.”

While mere allegations of drug use are probably not reason enough to deny employment, an employer would be well within its rights to perform a drug test.  Plus, another thing to bear in mind is that the person was referring to drug use when Jobs was in college, not even in the recent past.

The second item is very interesting to me; the issue of trustworthyness and integrity.  On that the ABC News Story offers the following:

It [the background check] reveals no felony convictions and dryly lists lawsuits in which Jobs was involved, but also cites unnamed associates who mentioned Jobs’ drug use and questioned his “honesty.”

Wow!  This is indeed interesting.  We’ve heard a lot of negative stories about Jobs’ behavior and general demeanor in the office.  Now, we’re also learning that his colleagues didn’t trust him.

So I ask, if you were to receive such information while conducting a reference interview and you didn’t know anything about the applicant, would you have hired the person?

In this case, not hiring him would have been one of the most monumental hiring mistakes of all time.

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This week the Committee on Transportation and Infrastructure is considering a long-term reauthorization and reform of federal transportation programs as part of the American Energy and Infrastructure Jobs Act.  Subtitle D of the proposed changes creates a national clearinghouse for records related to alcohol and controlled substances testing ofcommercial motor vehicle operators.  Great idea, right? Alcohol and controlled substance records are critical pieces of the background screening process for commercial drivers.

There is just one big problem.  As currently written, third party providers are denied access to the clearinghouse records.  So for employers who rely upon third parties to screen drivers on their behalf, any benefit from a national clearinghouse will be lost.  If the legislation goes forward without amendment, access will be limited to employers and individual drivers.  In fact, to add insult to injury, third party access by anyone other than an employer or individual may carry with it civil and criminal penalties. Special interests are at work here (surprise surprise), and if allowed to go unchecked, significant information sources will be denied those who have a legitimate use. Third parties are enlisted by companies both large and small to help employers maintain a safe workplace and safe highways and roads by screening applicants.

Meanwhile, down the hall at Ways and Means, U.S. Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security, held a hearing on Thursday, February 2, 2012 questioning the accuracy and uses of the Social Security Administration’s Death Master File.  This file is a key source of information in the background screening process, as it can reveal when an applicant is using the social security number of someone who is deceased.  Sound far-fetched? It happens. Trust me.

Ironically, Chairman Johnson argues that the Death Master File should no longer be public in order to cut down on identity theft.  He introduced H.R. 3475, the ‘Keeping IDs Safe Act of 2011,’ a bill that would stop Social Security from making this information public. This disconnect between a well-intended proposal and the actual use and benefit of the availability of public records is becoming the norm. Every week we are hearing about new efforts to limit use of public records, remove identifiers, and restrict access.

Rest assured that background screening companies and organizations like the National Association of Background Screeners are working to educate and amend legislation, but it is an uphill battle. We appreciate the support of employers in advancing our joint cause.

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We were just notified by our I-9 channel partner, Form I-9, that the Department of Homeland Security (DHS) will be releasing the newest version of E-Verify on January 30, 2012 and that there will be new requirements in order to process requests through EmployeeScreenIQ’s system.

Please note that the new requirements will not affect those that use the electronic I-9 Form and then submit for E-Verify.

For those that submit E-Verify requests without the electronic I-9 Form,  you will see a few changes to the form and the data entry, but the overall resolution process will remain the same as it is now.  In general, DHS is now requiring that E-Verify requests indicate the specific List B and List C documents provided on the Form I-9 and, in cases where a Driver’s License is used in List B, E-Verify now requires the issuing authority, document number and expiration date to also be provided.

Again, the Form I-9 is unaffected, only the New E-Verify form is impacted by these changes.

Below are links to screenshots of the changes you will see on January 30, 2012.

The New E-Verify form will have some cosmetic changes.  To view an example, click here

You will enter the employee information as usual.  In cases where the employee has provided a List B and List C document for their Form I-9, you will select “List B and C Documents” in the drop down menu.  To view an example, click here

When the “List B and C Documents” option is selected, two (2) drop downs will appear, so that the user can specify exactly which List B and List C documents have been provided.  To view an example, click here

If the List B document is NOT a Driver’s LIcense, users only provide the List B document title.  We have provided an example where a US Coast Guard Merchant Mariner Card and a Social Security Card are provided on the Form I-9, so the user simply reflects that information in the New E-Verify form.  To view an example, click here

If the List B document is a Driver’s License, then the issuing authority, document number and expiration date fields are also required.  (The form will automatically display these fields.)  To view an example, click here

List C will only require a Document Title to be specified.  To view an example, click here

After clicking the Process E-Verify button, users will then be prompted to review data as usual, check the affirmation box regarding the completion of the Form I-9 and click the Continue E-Verify Process button.  To view an example, click here

After clicking the Continue E-Verify Process button, everything else will work as usual.   You will receive the same results you are already used to seeing during the E-Verify process.

To learn more about EmployeeScreenIQ’s I-9 services, please check out http://www.employeescreen.com/employmenti9.asp

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CBS3 in Philadelphia is reporting that former Penn State coach, Jerry Sandusky was denied the opportunity to coach at a local college because the school saw that he was under investigation at the time they conducted a background check.  Well, thank goodness for that.

It’s been quite a year for those involved in the background screening industry: employers, consumer reporting agencies, attorneys, etc.  Every time we turn around it seems the industry is being attacked and accused of being the sole reason why people cannot find jobs.  And sure, it’s easy for these folks to file suit against, conduct studies unfavorable to background checks and to create a media storm about people that are denied work.  There are a lot of stats they can rely on and in many cases, twist to prove their point.

However, on our side of the equation, the stats are hard to come by.  How do you prove that you prevented loss, violence, a bad hire when you didn’t hire the person because the background check gave you pause?  Well, unfortunately, this Sandusky case helps us prove our point.  Being denied this job might not have stopped him from abusing others, but it wasn’t going to happen at this school.

Do we need further proof that background checks work; that they are a vital part of the hiring process?  Do we need to continue to prove that children’s lives were not altered, that families weren’t shaken to their core, and that the employer wouldn’t be responsible for millions of dollars in damages?

It’s time for those who oppose what we do to take a good look at the whole picture.  There are many ways to address the problems of former convicts finding work, combating recidivism and not create a disparate class of those who are unemployable.  They just can’t come at the expense others.

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As the Occupy Wall Street protests continue to gather steam and garner national attention, I’ve been thinking about how to correlate this anti-corporate sentiment as it relates to the background screening services we provide.  There have been a number of arrests, whether for disorderly conduct or violence which will inevitably lead to convictions.  And those that express their opinions through social networking sites are creating a digital footprint of these same sentiments.

I’m not really sure I have an intelligent opinion on the merits of these rallies or the lack thereof.  And let’s face it, who cares if I do?  However, the question I have is how this activity may affect their future employment prospects.  We all know that people’s political belief’s are not supposed to be considered in employment decisions.  But how about anti-business sentiment?  Will it scare employers away?  Will arrests and, or convictions for civil disobedience cause employers to move to the next candidate?  There is no real precedence for the answers to these questions.

It would have been interesting to see how these activities would have been viewed by employers had background checks been in vogue in the 50′s, 60′s and 70′s protests over things such as racial equality and the Vietnam War.

I suspect that the backlash to participants, specifically those convicted of criminal activity, will be punished by both the justice system as well by future employers.  As far as participation in these rallies and online rhetoric designed to incite people, we’ll just have to see.

What do you think?

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