Domino’s Pizza is the latest employer to find themselves in court facing a class action law suit alleging that their background check process violates the Fair Credit Reporting Act (FCRA).

The former employees claim that the company (1) ran background checks on employees without proper authorization; and (2) “systematically” failed to provide employees with copies of their background checks prior to taking adverse employment action against them.

This should not be news to employers. It’s Background Checks 101. So it is not surprising that last week, a Maryland US District Court judge allowed the case to move forward, denying Dominos motion to dismiss. In a long and critical opinion, the Court ruled that the plaintiffs properly alleged that Domino’s violations were “willful.” That means that the claims are putitive and if the Plaintiffs are successful, Domino’s pays an addtitional statutory penalty of $1000 per plaintiff. Ouch.

Sound familiar? It should. The Plaintiffs’ counsel– Minnesota firm Nicols Kastor, PLLP, filed a similar suit in December of last year against banking giant Capitol One. We told you about that case a few weeks ago. Plaintiff Kevin Smith accuses Capital One of violating the FCRA by combining it’s authorization with the company’s standard application. On this claim, Capital One may be liable to all employees and prospective employees who signed Capital One’s standard job application. Double ouch. The lawsuit also alleges that Capital One failed to provide copies of the reports when it used them to take adverse employment actions. Same story, different day.

Employers, these law suits are not going away. Review your adverse action process, and check your forms. If you need a compliant authorization form, you can get one from us.

According to The Baltimore Sun:

“New security screening procedures will be tested at O’Hare International Airport starting this summer to allow pilots to speed through checkpoints without undergoing scans or pat-downs, officials said.

It’s a first step toward transitioning to a more logical risk-based screening and away from the current system of treating pilots and passengers as equal potential security threats, according to the Transportation Security Administration. 

Expedited screening of flight attendants, who undergo less rigorous security and background checks than pilots during the hiring process, will occur later, officials said.”

Really?  Hasn’t the TSA learned anything from the recent incident at Miami International Airport where an illegal immigrant from Guyana was found working as a flight attendant?  This person was able to get this job using a stolen identity and his deception was not uncovered during the background screening process – it only came to light after the identity theft victim attempted to apply for food stamps and was denied because government records matched his SSN to the airline job.

I think before the TSA grants less rigorous security to airline personnel, they need to work with the airlines to ensure incidents like this don’t happen! 

New screening will let pilots fly through security

It’s that time of year when the ice cream trucks start patrolling the streets looking for their target customers – kids on summer vacation.  I remember the excitement of hearing the ice cream truck coming and tearing across my front lawn into the house to ask my mother and father for a dollar to buy any one of my favorite ice cream treats - the pink panther ice cream bar with the bubblegum eyes, an orange sherbet push up, a red white and blue rocket popsicle…just to name a few.  But I can honestly say I never once thought about who I was buying that treat from! 

One of our neighboring counties is though - just in time to kick off the summer season.  While one could argue that conducting background checks on these drivers should have always been mandatory, it’s better late than never.  Here’s hoping other communities follow suit!

Summit County officials push for ice cream truck driver screenings

AKRON, Ohio – Summit County officials are considering tougher restrictions on ice cream truck drivers.

“It’s been brought to my attention, some of them could be selling drugs out of them or be sexual predators and is in close contact with your kids. To me, it just didn’t sit well,” said Summit County Council President Jerry Feeman.

Feeman is behind the legislation similar to city of Barberton, requiring drivers to get a background check before getting behind the wheel of an ice cream truck.

The drivers would also have to be fingerprinted by the Summit County Sheriff’s Office. Under the proposal, people with an offense against a child, a sex offense, recent drug, assault or weapons conviction, or a homicide conviction wouldn’t be given a license.

“I’m not a big fan of legislating, legislating different things, but it just makes sense,” Feeman said.

He said the proposal would cover only ice cream truck drivers and not affect other groups that fall under the solicitor category, like Boy Scouts or high school groups, selling door to door for fundraising.

Bob Tanner has been an ice cream man in Ohio for 20 years. He’s now selling his ice cream truck to focus on his other food business, but he agrees something should be done.

“It would probably be a wise idea, especially no violent felonies,” Tanner said.

Feeman told ONN the legislation should be passed Monday.

Bragging to your buddies about your days in the trenches doesn’t hurt anyone or anything, unless of course they find out you’re a big fat liar and your ego gets bruised.  Masquerading these lies as expertise and profiting from it, on the other hand, has a tremendously adverse effect on those supposed to benefit from your instruction – especially when those people are federal, state and local law enforcement agencies who need this knowledge in the event of an attack or disaster. 

This story can be added to our ever growing list of why you have to background check before you let someone in the front door.

Maryland Man Arrested for Allegedly Lying About Military Service

By Edmund DeMarche, FoxNews.com – 01/26/2011

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.

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.”

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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