EmployeeScreenIQ Blog

Two judges in Centre county Pennsylvania have rescinded orders requiring local newspapers to destroy their archives of news reports about criminal cases the judges’ recently approved for expungement.  It is unclear how this stipulation worked its way into the courts’ orders but the defense attorney for the cases argued ““What’s the sense in having your record expunged if anyone can Google you and it comes up?”  While I understand the point he is trying to make, I don’t support trampling all over the First Amendment. 

The broken record continues to play –  this is yet another reason why employers should not rely on social media sites and Internet search engines as tools to conduct background checks on potential hires.  The information found could include facts about an applicant that cannot be taken into consideration when making the hiring decision.  And once you know something, it may prove difficult to unknow it, so to speak.

Win or Lose in Court, You Cannot Erase the News

By Gene Policinski, eNews Park Forest – July 13, 2010

Sometimes the meaning of the 45 words of the First Amendment seems to escape even those trained in the law.

In Pennsylvania last week, two judges in Centre County — home to Penn State University — signed off on what generally are standard instructions to police and other agencies to expunge certain official records of five people involved in criminal investigations.

But the orders, thanks to the defense attorney for the five, also required that two area newspapers erase archived news reports about the defendants, who faced charges ranging from assault to drug possession.

“Imagine getting such an order, right before the July 4th holiday,” said Bob Heisse, executive editor of the Centre Daily Times, one of the newspapers involved.

Both judges have now voided the orders, but news reports now say as many as 41 orders presented to the court by defense attorney Joe Amendola included similar demands of news organizations.

“What’s the sense in having your record expunged if anyone can Google you and it comes up?” Amendola told the Centre Daily Times. The lawyer, in later news reports, said the newspapers were added to the orders without his knowledge, by a staffer in his office.

Regardless of how the newspapers came to be included in the various court orders, what makes “sense” is to report — and retain those reports — on arrests and court recordings, whether it’s the era of Google or in earlier times when the nation’s Founders took care to provide for an independent news media.

Yes, none of us likely would look forward to having our name or face in a newspaper, on a website or on TV if we were to be arrested and face trial. And there surely is a certain amount of pain and shame in having those facts come up in an online search later in life.

But, as Heisse said, “Facts are facts, and we don’t go back and alter the historical record to suit someone.” Elizabeth Murphy, editor in chief of the second newspaper involved, the Daily Collegian, said it “is a record of history as it happens from day-to-day. … We’re here to report the facts as they are and that’s what we did.”

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Tennessee Circuit Court Judge Jim Hamilton is accused of expunging the criminal records of two convicted felons when he did not possess the authority to do so.  This was only discovered after employees of the Sheriff’s office recognized one of the felons names on a request for a gun permit and could not locate his records.  The District Attorney in Maury County is  looking to reinstate those convictions immediately.

A criminal record that has been expunged would not show up on a background check.  Expunging a record from a person’s criminal history means that it’s gone, it never happened.  Typically, serious criminal convictions do not qualify for the expungement process.  This story does not indicate what crimes these two individuals committed, but does say that the individual applying for the firearm was convicted three times and served time in prison.  That sounds pretty serious to me.

This judge has some explaining to do.

Judge Accused of Illegally Expunging Criminal Records

By Nick Beres, NewsChannel5.com – July 7, 2010

COLUMBIA, Tenn. –Senior Maury County Circuit Court Judge Jim Hamilton is accused of illegally wiping the records clean for felons. Now, District Attorney Mike Bottoms wants to know why.

“We’ve got a judge who is granting pardons and he doesn’t have that power,” said District Attorney Mike Bottoms.

Bottoms has filed lawsuits to reinstate the criminal records of two men with multiple felonies. His petition reads: “The state seeks to have illegal orders of expungement set aside …. The judge who signed the expungement orders was without the legal authority to do so.”

Bottoms said Hamilton illegally expunged the felony records of Phillip Williams and Rodney Gillespie. Typically expungement orders have the approval of the district attorney, defense attorneys and the judge. But in both cases, the orders only had Hamilton’s signature.

Hamilton was on vacation and unavailable for comment. Newschannel5 questioned the Circuit Court Clerk Kathy Kelley.

“Mike Bottoms is alleging the judge gives pardons to felons,” said NewsChannel 5′s Nick Beres.

“I don’t know anything about this,” said Kelley.

“Does Judge Hamilton expunge records illegally?” asked Beres.

“Not to my knowledge,” answered Kelley.

Bottoms called this a public safety issue. He says one of the men involved, Gillespie, was already taking steps to get a gun.

“I was shocked that someone convicted three times and served time in a penitentiary could have his record expunged. And now he has a gun permit,” said Bottoms.

At this moment, Gillespie and Williams are no longer felons. Their records have been cleared. Bottoms said they can buy guns, vote, even apply for jobs in law enforcement.

Gillespie and Williams could not be reached for comment.

Bottoms said there’s no indication Hamilton was bribed for the expungements. So his reasons for granting the expungements remain unclear. It’s all part of a growing investigation that may now include the TBI.

Bottoms said he only learned of the expungements after Gillespie applied for the gun permit and employees at the Maury county sheriff’s department recognized his name, but couldn’t find his record.

Bottoms said he worries there may be others who have received similar pardons.

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In a 6-3 decision, the Supreme Court ruled on Tuesday that a convicted sex offender in Alabama did not by law have to register in the state of Indiana because his conviction pre-dates the 2006 passage of the Sex Offender Registration and Notification Act (SORNA).   Thomas Carr, convicted in Alabama in 2004 of first degree sexual abuse of a minor, was arrested in Indiana and faced a 30 month prison sentence for failing to register as a sex offender in that state.  Carr took his case to the Supreme Court arguing that since his conviction pre-dated the SORNA law, imprisoning him for not registering would be unconstitutional.  The Supreme Court agreed.

One of the reasons the Justice’s agreed with Carr was the use of the word “travel” in the language of the Act.  Congress used the present tense of the word (travels), not the past tense (traveled) when referring to sex offenders who move from state to state.  In the Justice’s opinion, if Congress had wanted to make registration requirements retroactive, they would have used the word “traveled.” 

A very big mistake on Congress’ part or too narrow of a reading of the law?  Perhaps both.  Either way, a hard hit to law enforcement and the general public.

So, yet another very valid reason that running a background check in an applicant’s state of residence alone is not a good policy.  If Carr had applied for a position with a company in Indiana that only conducted state of residence background checks, they would not have known about his sex offender status in Alabama.  If running state of residence only checks, employers may miss some very key components of their applicants’ past that could alter their hiring decision by 180 degrees.

Registry law doesn’t apply to all sex offenders, Supreme Court rules

A sex offender who moved from Alabama to Indiana in 2004 does not have to register with authorities because his move predates the registry law Congress enacted in 2006, the Supreme Court ruled on Tuesday.

By Warren Richey – June 1, 2010

A national sex offender registry law does not apply to interstate travel by a sex offender that took place before Congress passed the registry statute in 2006, the US Supreme Court ruled on Tuesday.

In a 6-to-3 decision, the high court rejected the Obama administration’s expansive reading of the Sex Offender Registration and Notification Act (SORNA). Instead, the majority justices embraced a narrower view of the law, while overturning a convicted sex offender’s 30-month prison sentence for traveling to another state and failing to register.

The decision triggered a heated dissent by three justices who warned that the ruling will impair the ability of law enforcement officials to locate and register some 100,000 convicted sex offenders who have eluded authorities.

“Under the court’s interpretation, the many sex offenders who had managed to avoid pre-existing registration regimes, mainly by moving from one state to another before SORNA’s enactment, are placed beyond the reach of the federal criminal laws,” Justice Samuel Alito wrote.

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If you thought April 15th was a bad day because income taxes are due, employers have much more to worry about!  There appears to be an Internet movement to designate April 15th as “Steal Something from Work Day.”  Facebook already has a group dedicated to the cause and currently retains 1, 487 members. 

In response, April 14th will now be known by U.S. businesses as “Did I Conduct That Background Check? Day.”

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The author of this blog hits the nail right on the head with regards to employee referrals.  It’s important to ensure that the person you are looking to hire is qualified for the position you are hiring them for.  Relying on an employee referral as the sole basis of your hiring decision could result in a waste of time, money and resources.  It’s vital to substantiate your employee’s claims of a good hire with a proper background check. 

The Dreaded Employee Referral

By Simon Meth, ERE.net – March 13, 2010

Popular opinion is that employee referrals are the #1 source of hire in a corporate environment. I believe that to be true. But are employee referrals the #1 source of quality hires? I doubt it! Following are some thoughts from my own experience. Your mileage may vary.

Companies often pay a referral bonus to encourage employees to refer their friends and former colleagues to open positions. Bonuses range from a few hundred dollars to thousands of dollars. I wonder sometimes if referral bonus programs are incenting the intended behavior in employees. I’m often on the receiving end of numerous internal referrals that are so off the mark that it’s laughable. How can one candidate be a fit for multiple engineering positions in multiple disciplines? Most likely they cannot be.

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Joseph Mannino, a registered nurse who previously served three years in a North Carolina prison on an involuntary manslaughter conviction, was fired from his job at Lehigh Valley Hospital in 2008 for lying about his conviction status on his application for employment.  Time employed before the hospital found out: about three years.

Why did three years go by before his lie was discovered?  I have a better question.  Why didn’t the hospital learn of his conviction when they conducted the background check on him?  Better yet, how was he able to get a nursing license in the state of Pennsylvania?

If you guessed that both his nursing school and employer only conducted statewide criminal checks through the Pennsylvania State Police, you are spot on!

While the PA State Police criminal check may be a good tool to finding records in the state of Pennsylvania (but only as a supplement to a comprehensive countywide criminal search -remember!), it is definitely not a good source for any records maintained beyond its borders.  His school and employer make the argument that he met the two year residency requirement so that is why the statewide search was conducted.  In no way is that a legitimate excuse for not knowing about the conviction!  Convicted felons should not get a pass just because they meet some arbitrary residency requirement.  This is a person who was employed to care for vulnerable people, had access to controlled substances and sensitive personal  information.  The bottom line is that his employer should have been aware of his criminal past prior to making the hiring decision.  Conducting a thorough criminal search in all of the places your applicant has lived and worked (as far back as you can go) is the best way to find out who you are really employing.

Convicted Killer Hired As Nurse

By Bo Koltnow, WFMZ-TV – March 15, 2010

SALISBURY TWP., Pa. — A convicted killer landed a nursing job and years went by before he was outed.  

By all accounts, Joseph Mannino of Palmer Township, Northampton County was a good employee when he worked as a nurse for Lehigh Valley Hospital.

But in 2008, he had his nursing license revoked and was fired for lying on his job application.  

The lie? Not being a convicted felon.  

Lehigh Valley Hospital said it never would have hired Mannino in 2005 if it knew then what it knows now. 

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An audit conducted by New South Wales’ Auditor General has found that fourteen people employed as volunteers for children’s organizations had dangerous criminal pasts that posed a significant risk to children.   According to the Auditor General, the Children’s Commission, the organization that oversees the health and well-being of children in New South Wales, can only stop the employment of volunteers if they are found to have serious child-related offenses in their past.

Now, correct me if I’m wrong, but I would consider many different crimes unrelated to children to be a basis to deny employment to someone looking to work with children. 

1.  Murder

2.  Assault (with or without a weapon)

3. Drug Related Offenses or Use

4.  DUI (if the position requires transporting children)

5.  Sexually related offenses (against adults)

I could go on but I think you catch my drift.  NSW and the Children’s Commission better get on the ball and plug these holes in their background check process before somebody gets hurt.

Background checks leave kids vulnerable

At least 14 people known to pose a significant risk to children were employed to work with young people in New South Wales last financial year, the state’s Auditor-General has found.

ABC News Australia – February 24, 2010

An audit by Peter Achterstraat has found the process used to check people who work with children in NSW does not reliably identify everyone who poses a danger to young people.

The audit has also found that people who have been assessed as being a significant risk to children can be employed to work with them.

Releasing the findings this morning, Mr Achterstraat said there were 14 such cases last financial year.

He said the Children’s Commission could only stop people identified as being dangerous from working with children if they had been convicted of a serious child-related offence.

Mr Achterstraat said it was also not known how many volunteer organisation were running Working With Children safety checks.

“Whether we like it or not, there is a danger that perpetrators of child abuse will deliberately target voluntary associations to get access to children…” he said.

“Parents expect that people working with their children would have been checked. There is a safety net but it has got holes in it and those holes need to be mended quick smart.”

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The National Consumers League (NCL), a Washington DC-based consumer watchdog, has reported that employment fraud was the 6th most reported scam in 2009 and is continuing to gain momentum due to the high unemployment rate.  These scams typically target those looking for work by asking them to provide personal information to run a background check or guaranteeing a job for an up front placement cost.  For those already struggling to make ends meet while unemployed, unknowingly falling victim to one of these scams is just another kick to the gut.

Consumers looking for work need to be very careful during their job hunt.  The following article details the types of scams currently making the rounds and how to spot them.  Just remember: if it’s too good to be true, it probably is.

Employment Fraud on the Rise

Scammers ‘guarantee’ better resume, new job for $5,000

By Evan Binns, St. Louis Business Journal – 02/21/2010

Carolyn, who has been unemployed since November, was thrilled when she opened an e-mail regarding a recent job application she filled out for a local medical administration assistant opening.

The e-mail wasn’t from the potential employer, but a third party identifying itself as a pre-screening service. It claimed that Carolyn needed to complete a background check, and include her Social Security number, in order to proceed with her application.

Carolyn was suspicious that the request came from a company other than the potential employer, so she called her friend Cynthia Dodson, vice president of career consulting and services at Right Management, who immediately flagged the e-mail as a possible scam.

According to a recent report by the National Consumers League (NCL), a Washington, D.C.-based consumer watchdog, the struggling economy has led to a significant rise in the number of employment-related scams.

“This year we saw a spike in complaints related to bogus business opportunities,” said John Breyault, vice president of public policy, telecommunications and fraud at the NCL.

Recession-fueled employment scams, which include fraudulent franchises and distributorships, were listed as the sixth most reported scam in 2009 by the NCL’s annual report. Employment fraud totaled 2 percent of all scams tracked nationally.

In 2008, employment fraud did not even make the list of top 10 fraudulent activities

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If you lie about your education credentials in the U.K., you’re not only out of the job – you’re going to court too!

An HR Manager re-applying for her position after a company re-organization was found to have falsified her academic accomplishments.  She had claimed to be in the process of a completing an HR training course, hold both a HRM degree and a marketing certificate from Oxford Brookes University as well as an advanced marketing certificate from Swindon College.  Turns out this wasn’t the case and she has now been given a six month suspended prison sentence, 150 hours of community service and is forced to pay £9,600 in compensation.

I’m guessing a thorough background check wasn’t conducted when she was hired which is why she was able to get away with her lies for the three years she worked for the company. 

This story teaches us two things:  First, it is important to screen ANY person that may work for your company – high and lower level positions.  Dishonesty isn’t exclusive to those with little to no work experience.  Second, continually screening your employees is vital to making sure they are keeping on the straight and narrow.  You never know what you may find the second time around!

HR manager sentenced for lying about qualifications

Employers reminded that risk of staff fraud can exist in all layers of management

By Claire Churchard, People Management – January 6, 2009   

Employers have been reminded of the risks of employment fraud after Kerrie Devine, an HR manager in Devon, was given a suspended prison sentence for lying about her qualifications.

Devine, a senior NHS human resources manager from Lympstone, was found guilty of lying about her qualifications to Devon Primary Care Trust (PCT) in the course of reapplying for a post after a reorganisation.

Devine was HR manager at East Devon PCT between 2003 and 2006, but when East Devon PCT was dissolved into newly-formed Devon PCT, staff were required to submit expressions of interest in new posts at Devon PCT.

Devine, who was on a lengthy period of sickness absence at the time, was found to have submitted a dishonest application in her expression of interest in March 2007.

She falsely claimed to be part way through a CIPD course and to hold a degree in HRM from Oxford Brookes University. She also falsely claimed to hold a certificate in marketing from the same university, and a Chartered Institute of Marketing advanced certificate from Swindon College.

Exeter Crown Court gave Devine a six-month suspended prison sentence and ordered her to pay £9,600 in compensation. She must also carry out 150 hours of community service. The investigation was carried out by the NHS Counter Fraud Service (CFS).

Debbie Lloyd, south-west operational fraud manager of the NHS CFS, said: “This positive outcome to our investigation is a reminder that fraud against the NHS can be committed by people in well-paid, senior positions.”

David Chernick, senior manager at KPMG Forensic and chairman of anti-fraud body PREFIT, added that the case also illustrated the value of secondary checks on people who had been employed for some time.

He said a second opportunity to check credentials often comes when there are changes to employment contracts. “I predict that many employers will find dishonesty the second time around.

“Credential checks are an important thing for HR to do and if they don’t carry them out then the security guys will increasingly have to take over the responsibility.”

Greg Allen, director of human resources and workforce development at NHS Devon, said: “We believe that the publicity surrounding the court case sends a clear message to people that if you defraud, or attempt to defraud the NHS, you will face the full force of the law.

“Kerrie [Devine] purported to give professional HR advice on the back of qualifications that she did not have. She also went out of her way to cover the tracks of her deception.

“No one should be in any doubt about the message. If you try to deceive the NHS you will be found out and dealt with appropriately.”

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A civil lawsuit brought about by the parents of Michelle Herndon, a University of Florida student found murdered in her home in November of 2005, alleged that her killer’s former employer was in part responsible for her death.  Her killer, Oliver Travis O’Quinn, was employed by Shands Teaching Hospital and Clinics, Inc. as a surgical nurse at the time of Herndon’s death.  Michelle Herndon died of an overdose of Propofol, Midazolam and Estomidate, anaesthetics available only by prescription that were stolen from the hospital by O’Quinn.  O’Quinn was convicted in 2008 of administering the lethal dose.

A Florida Appellate Court found that Herndon’s death “was a forseeable consequence” because the hospital “fail[ed] to use reasonable care in the hiring and supervision of O’Quinn.”  In its decision, the Court stated that the hospital “knew or should have known of [O'Quinn's criminal history] had it done a competent background check of O’Quinn.”  A background check would have revealed that O’Quinn’s criminal history included theft of controlled substances.

Had the hospital done its due diligence and conducted a comprehensive background check when hiring O’Quinn, perhaps this tragedy could have been avoided. 

Court Decision: HERNDON v. SHANDS TEACHING HOSPITAL AND CLINICS, INC

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