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Time for another installment of employeescreenIQ’s TWIB Notes (This Week in Background Checks)!  I can already feel the excitement from our readers (hi Mom!).

This week’s post is especially exciting because earlier today, Jason Morris and I recorded a podcast version of the notes, so if you couldn’t get enough of the written post, go ahead and super size it with our Podcast Channel. The week of August 18th brings us the following:

Highlights from employeescreen University:

From the Blog:

That’s all I’ve got.  I’m going to pretend to work for a couple more hours today.  Have a great weekend!

Don’t forget to have your pets spade or neutered!  (What, I can’t steal from Bob Barker?)

Listen to the podcast here:

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We have written about the Texas DPS (Department of Public Safety) database before, things have not improved.  Long considered “one of the best…of the worst”, the Texas Statewide Criminal Database is full of holes.  These holes are critical because many industries are required by Texas law to use this system.  What does this mean to residents in Texas?  Teachers, Politicians, Nurses, Doctors etc. are checked through an inadequate system of obtaining criminal records. You have to see the percentages in this article, it will blow your mind.

the Department of Public Safety says counties in the most recent assessment submitted outcomes on just 69 percent of criminal charges

69 Percent, are you kidding me? I realize that in Baseball, failing seven out of ten times means you are an All-Star.  In the world of criminal records even 99 Percent is not good enough.  Fortunately there are some companies in Texas that utilize best practices and do more than just a DPS search.  We have hundreds of clients in Texas and most use a countywide criminal search in addition to the DPS.  If you are relying solely on this system, you must read on!

Counties Fail to Update Cases in Texas’ Crime Database

11:28 PM CDT on Thursday, August 21, 2008

By ROBERT T. GARRETT / The Dallas Morning News

AUSTIN – The state’s criminal database, riddled with holes four years ago, has just as many gaps today.

Although officials in Dallas and other poorly reporting counties promised in 2004 to do better, the Department of Public Safety says counties in the most recent assessment submitted outcomes on just 69 percent of criminal charges – the same percentage as before.

“That’s astonishing. That’s leaving a substantial total number of criminals unreported in the system,” said John Bradley, Williamson County district attorney. “That’s the biggest threat to public safety that you can imagine, particularly in a post-9/11 time when we rely on databases to protect the public.”

Angie Klein, manager of the DPS criminal history records bureau, attributed the counties’ lack of progress to slow resolution of many felony cases, and glitches in big urban counties, which can bring down statewide compliance rates.

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In my post, Madison Square Garden Sued Over Background Check, from earlier this week, I failed to consider an important point in this case: Does the employer have a policy that they do not hire anyone with any type of criminal record?

Why is this important?  While the FCRA allows organizations to conduct background checks on prospective employees, the Equal Employment Opportunity Commission (EEOC) has rules that govern the use of adverse information specific to criminal records.

The Equal Opportunity Commission has deigned that each and every employment application inquiring about criminal history should include the following disclaimer (or its like):

A criminal conviction will not necessarily be a bar to employment; rather, such information is only relevant in determining whether the conviction is directly related to the job for which you are applying. Factors, such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account.

Many states have similarly legislated (or have included in regulations or guidance) that the elements of a crime for which an individual was convicted must be “substantially related” or “directly related” to the job duties of the position sought. Applying a matrix subject to the deficiencies described above is inconsistent with this goal because matrices do not allow for extenuating circumstances, deviations or mistakes that often occur when evaluating the employability of applicants or employees.

What does this mean?  First, employers should be careful of developing blanket policies of not hiring any individual with any type of criminal record.  It also means that employers should be wary of Automatic Adjudication Modules for many reasons including the EEOC concerns. Every criminal record should be evaluated to determine how long ago it occurred, whether the individual is a repeat offender, if the criminal activity relates to the job responsibility, etc.

I also want to thank the individual who helped point out this important omission from my earlier post.

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We just released the latest edition of The Verifier, employeescreenIQ’s free background screening newsletter.  The Verifier XVI includes great content on best practices in employment screening, compliance tips and company news and events.

Check it out at http://theverifier.employeescreen.com/theverifier/current_issue

Let us know if there are more topics you are interested in learning about in future issues at info@employeescreen.com .

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It looks like the State of NJ Education Department has been getting a lot of heat since the diploma mill story hit the news!  In an update it appears they will be revising their policies.  Maybe they read all of the stories we have written on Diploma Mills??

TRENTON, N.J. – New Jersey’s Education Department says it will come up with rules to stop school administrators from getting extra pay after obtaining graduate degrees from so-called “diploma mills.”

Education Commissioner Lucille Davy announced the plans.

It was recently revealed that officials in Freehold, including superintendent H. James Wasser, had degrees from Breyer State University, a unaccredited university.

State Senate President Richard Codey is calling for the state Attorney General to investigate the issue.

Full Story

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So it looks like the city was a “day late and a dollar short” on their background screening program.  It appears in 2007 they were enlightened and decided to start running background checks….but what about current employees?  A day late; They should have been running these way before 2007, don’t they read the news? A dollar short; adding a simple service like IQ Review would have gone back and checked those not already screened.

Swimming Pool Rape Case Prompts Demand for Background Check Policy Review

By Amos Maki (Contact), Memphis Commercial Appeal
Thursday, August 21, 2008

Mayor Willie Herenton and members of the Memphis City Council are demanding answers after an employee at a city swimming pool was charged with raping a 17-year-old girl and exposing her to HIV.

Timothy Bernard Payne, a pool attendant at Westwood Community Center, was hired in 2006, one year before the city began running background checks.

Payne was indicted on a rape charge in 1993, but pleaded guilty to a reduced charge of misdemeanor assault. He was charged Monday with the July 31 rape and is being held in the Shelby County Jail on $250,000 bond.

On Aug. 5, Human Resources director Lorene Essex told the council she would perform regular background checks on temporary employees who had contact with children after a television station reported a city lifeguard remained on the job after being charged with assault.

Essex said the lifeguard, who had since been terminated, had a clean background check when he was hired, but because the city does not do yearly follow-up checks, the charge he received while he was a lifeguard was unknown to city officials.

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Criminals Need Not Apply for School Volunteer Jobs

By Ray Pitz

The Beaverton Valley Times, Aug 21, 2008

Everyone from school field trip chaperones to parents who read individually with students will soon have to pass a criminal background check if they want to volunteer at area schools.

On Monday, the Beaverton School Board approved a policy that would require conducting background checks on the district’s estimated 10,000 volunteers at 50 schools.

The policy will affect those who have direct contact with students.

Randy Kayfes, director of public safety and the lone sworn police officer working for the Beaverton School District, said the district plans to run the checks through the Oregon Law Enforcement Data System. That system, which requires having a police officer on staff to administer, is expected to be faster than a current system the district uses to run checks on its employees.

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Does every person convicted of a crime deserve a second chance?  I’m going to make a generalization here and assume that most people would say it depends on the type of crime committed and how long ago the conviction occurred.  This is a decision every employer must weigh should they receive a not-so-stellar background check result on a candidate.

Well, it appears that Prince Charles has decided to give an ex-con a position at one of his estates.  According to this article, a background check was not conducted on this person (which of course we do not recommend) but the employee has been forthcoming with his past insisting he is a changed man.  Can people change?  I’d like to think so.  Is it possible that every ex-con out there can change for the better?  Most certainly not!  But I’m not ready to discount every single one of them just yet.

But back to the issue at hand.  Every day employers must weigh the pros and cons of every potential candidate vying for a position at their company.  This becomes especially difficult when there is a criminal past involved.  The only advice I can give to those employers would be to look at the type of crime committed, how long ago it took place, whether or not that conviction has any bearing on the type of job responsibilities the candidate would have, and what their legal department’s policies and procedures are when hiring someone with a criminal past.  Of course, should you hire this person, there is no guarantee that it will work out the way you want it to.  That will happen with the best of candidates too.  Making good hiring decisions is not an easy job.  But if you do your due diligence with the background checking process and follow consistent hiring practices, you should be able to keep your head above water.

Click here to read “Ex-Con Is Now Prince Charles’ Window-Washer

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A New York woman is suing Madison Square Garden, home of the NBA’s New York Knicks and the NHL’s New York Rangers, because she was denied employment based on the outcome of her background check.  The background check revealed a prior misdemeanor conviction for assault from five years ago and she alleges that she was discriminated against.

See article “New York Complaint Says ‘The Garden’ Discriminated in Background Check

Her attorneys assert that since African-Americans are prosecuted and convicted at a much higher rate than whites, using criminal convictions found on a background check is discriminatory.  As a blanket statement, this is a ridiculous.  (To be fair, the attorneys are really saying that the practice of employment screening creates a disparate impact on minorities)  However, the Fair Credit Reporting Act permits employers to conduct background checks to determine suitability for employment.  If a person has been convicted of a crime that would call into question their ability to perform the job they are being hired for or if they represent a significant liability to the employer and, or their employees and customers, the employer has every right to deny employment.

Since I don’t know the specifics of the case, I can’t really argue the merits or lack thereof.  However, this will be a case worth following.  I do think that since the case is being brought in Federal Court on EEOC claims that they are looking for more than just a payday.

I would assume that the following will be important in determining the outcome:

  • Does Madison Square Garden conduct background checks on all prospective employees in the same position that the applicant applied for?
  • Has Madison Square Garden made similar hiring decisions when background checks have revealed similar convictions (including time, scope, repeat offenses, etc.)
  • Have they ever hired another candidate with a similar record?
  • Did the applicant grant consent to the background check and was she notified that her employment was predicated on the successful outcome of the check?
  • Did the applicant dispute the findings? (It seems she did not.)

What can employers do to mitigate the opportunity for successful claims?

  • Don’t discriminate in your hiring practices (that one seemed fairly obvious)
  • Be consistent in your screening practices.
  • Be careful with Adjudication Modules.  They can lead to EEOC issues.
  • When making a decision not to hire based on the outcome of the background check, be aware of how the adverse information found would affect the job responsibility of the applicant
  • Stay away from Social Networking Sites.  They too can lead to discrimination claims.

We’ll keep you posted.

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I guess you can’t technically call this resume fraud? This is a terrible and negligent practice by educators, but isn’t prevented by the NJ Department of Education.  A degree with no academic value gives educators and administrators a nice pay raise.  The only chance of this practice coming back to haunt them is a quality background check when they go to find their next job.

N.J. Educators Free to use Diploma Mills

Taxpayers foot the bill for tuition

By ALAN GUENTHER • Gannett New Jersey • August 17, 2008

Psst . . . Wanna buy a degree from a diploma mill and stick taxpayers with the bill?

If you’re a public school educator, New Jersey won’t stop you.

State Education Commissioner Lucille Davy said she is powerless to prevent local school boards from handing out tax money to administrators who boost their pay by obtaining degrees with little or no academic value.

When it issued a nine-page report last week, the department entered a growing national controversy about the value of online degrees. But instead of announcing tough new standards, the department made only a few suggestions.

“I feel sorry for New Jersey. Here they had an opportunity to step up to the plate, and they opted not to,” said former FBI agent Allen Ezell, who investigated diploma mill fraud for 11 years, then wrote three books on the subject. “I would have thought New Jersey would have had a little more brass than that.”

Freehold Regional High School District became the epicenter of the diploma mill controversy in New Jersey when the superintendent and two top administrators obtained degrees from an online school that has been deemed an “apparent diploma mill” by Alabama officials.

After completing an investigation into the administrators’ degrees, the education department’s report stated there was “no sustainable evidence” that the administrators “possessed the prerequisite intent to deceive when they obtained the degrees” from Breyer State University, which has been chased out of two states and an African country.

The education department report suggested — but did not require — that high school administrators, in the future, earn college degrees from reputable, accredited schools.

None of the three administrators investigated — Superintendent H. James Wasser, Assistant Superintendent Donna Evangelista and recently retired Assistant Superintendent Frank Tanzini — was required to pay back the $10,750 they received in taxpayer money to obtain degrees from Breyer State.

The board gave raises — $2,500 each per year — for their advanced degrees.

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