1	Crime, Criminals and Hiring Presented by Les Rosen, Attorney at Law and President, Employment Screening Resources (ESR), Novato, Ca. Phone: 888-999-4474 E-mail: lsr@ESRcheck.com http://www.ESRcheck.com
2	Reasons to be Concerned About Criminal Records Past criminal conduct raises concern about propensity to repeat criminal behavior Workplace Violence Due Diligence/Negligent Hiring/Retention/Promotion/Supervision Cost of a bad hire estimated at $10,000 to $100,000 Cost of termination and litigation
3	Employers’ Legal Duty Every Employer has legal duty to exercise due diligence in hiring Employer liable for hiring someone who is likely to harm others in view of the work involved An employer is negligent if they hire someone who they knew, or in the exercise of reasonable care should have known, was dangerous or unfit for the particular job.
4	No National Criminal Database Problem: contrary to popular belief, there is no national database available to private employers The National Crime Information Center (NCIC) is restricted to law enforcement Fingerprint checks only available when mandated by law (e.g. teachers or child care workers)
5	Must Search Each Relevant Courts The primary method for obtaining criminal records is to physically go to each relevant courthouse and look!! Over 10,000 courthouses in America with court records in over 3200 jurisdictions Some jurisdictions contain multiple municipal or justice courts Two court systems--State and Federal
6	First line of defense occurs before the background check Critical to utilize proper AIR --Applications/Interview/References Firms utilizing best practice in the AIR process have a low rate of criminal record hits
7	Applications are a Best Practice Application process is a best practice Resumes often not complete or clear To applicant, a resume is a marketing tool Applications ensures uniformity Also, requires applicant to provide all necessary information, prevents employer having impermissible info, and gives employer place to have applicants sign certain statements
8	Have Background Consent as Part of Application Discourages applicant with something to hide Encourages an honest applicant to disclose a previous problem--a mistake honestly admitted may have less impact Allows firms to ask “honesty questions” in interview: “When we do our background checks, is there anything we should know.”
9	Need Critical Language CRITICAL: Specifically ask if person has been convicted, or has pending charges Broadest legal language for both felonies and misdemeanors Some limitation on misdemeanors Need statement that any fraudulent statement or material omissions grounds to terminate the process, or employment if later discovered
10	Look for Red Flags on Applications Review applications carefully for the following red flags Applicant does not sign application Applicant leaves criminal questions blank (the honest criminal syndrome) Applicant self-reports offense Applicant fails to explain why left past jobs Applicant fails to explain employment gaps Excessive cross-outs and changes
11	Interview Process-the Five Questions Away ask thee four question (during housekeeping stage of interview)- Since they have signed a consent and believe you are dong checks, powerful incentive to be truthful- New Age Lie detector test 1. We do background checks on everyone we make an offer to. Do you any concerns about that you would like to discuss? (Good applicants will shrug off)
12	Five Questions-Continued 2. We also check for criminal convictions for all finalists. Any concerns about that (make sure question reflects what employer may legally ask in your state in that state. 3. We contact all past employers. What do think they will say? 4. Will past employer tell us that e.g. your were tardy, did not perform well etc. 5. ALSO, use interview to ask questions about any unexplained employment gaps
13	Verifying Past Employment is as Critical as Criminal Record check Critical to verify employment to determine where a person has been (even if you only get dates and job title) Looking for unexplained gaps AND for locations to search for criminal records If can verify person gainfully employed last five-ten years, less likely spent time in custody for serious offense Just attempting and documenting effort demonstrates due diligence
14	Ten Things to Know About OBTAINING Criminal Information Applicant to HR Director during employment interview: “I like to think of my criminal past as an asset. I can help you steal customers from your competitors.”
15	1. Humans Perform the Searches Researcher goes to actual courthouse Public access computer (look-up by names) Searches performed by court clerk Paper indexes, binders or books (in some cases, need to search year by year) Some counties charge an access fee Can be name and spelling variations
16	2. Must Confirm Identity Initial search is usually by name match only If there is a “hit” need to review actual file to obtain details and to confirm identity Identifiers include date of birth, drivers license, or SSN Delay possible if the court clerk needs to obtain the file, or file in storage Some counties require a court fee
17	3. Must Confirm Case Details Must examine file to determine details of case Need to determine if felony or misdemeanor, sentencing, future court dates, probation terms and nature of offense Actual police reports often not available
18	4. Federal Courts are a Separate System There are 94 federal judicial districts (e.g. California has four districts) Federal cases typically serious crimes (e.g. large drug cases, financial fraud, bank robbery, interstate crimes) Majority of all criminal prosecutions is in state courts Federal offenses sentenced under the Federal Sentencing guidelines
19	5. Different Levels of Crimes Three categories of criminal offenses: felonies, misdemeanors, and infractions Felonies carry state prison sentence/ misdemeanors local time (county jail) Felony can also be punished with probation and “local” county jail time Some offenses can be either a felony or misdemeanor--called a “wobbler”
20	Crime and Punishment Jail alternative programs e.g. home detention or “Commit a crime, go to your room,” or work furlough, work alternative program or weekend sentence Diversion programs, delayed entry of judgment or similar programs -these can restrict ability to report offense After probation or parole, can petition for rehabilitation, governor's pardon, etc.
21	6. Big Mistake Not to Look For Misdemeanors Big mistake to only look at felonies Misdemeanors can be very serious--e.g. assaults, sexual offenses, weapons charges Not unusual for felony charges to be reduced to a misdemeanor (plea bargain) PROBLEM: Most misdemeanors searches limited to central court only. Some jurisdictions have numerous local courts, and they are very difficult to search
22	7. Careful Using Databases Excellent secondary source --covers wider area then a county search Must understand how the database is assembled--should not be used as primary tool Some databases are repositories only or maintained by correctional authorities Only a few “true” statewide databases using information directly from the courts Issues as to timeliness, accuracy, completeness, identity and final disposition of matter
23	8. Must Determine Where To Search Since no nationwide database for private employers, must select counties to search Cannot search everywhere--never a guarantee that search is complete Best protection: seven year county search of where applicant has lived, worked or studied based on a social trace (the credit header maintained by the credit bureaus), application and list of past addresses
24	9. In-depth Criminal Searches Available In addition, can also search : Larger metro areas surrounding counties Federal searches Statewide database if available Contact local prison system/Federal BOP Sexual offender databases DMV for driving related offenses
25	10. International Criminal Checks Most countries do not have extensive public records systems available Checks can be expensive and time consuming/ not always clear what courts are being checked or how records maintained Can still verify schools, former employers, and criminal check for period living in US Can also hire investigator in a country for in-depth search
26	Ten Thing to Know About Using Criminal Records CAUTION: Just because there is a criminal record, cannot automatically disqualify an applicant Must understand proper use of criminal records
27	1. Not All Criminal Convictions Will Disqualify Applicant Legal standard is fitness for a particular job Person with theft conviction may not be good candidate to work cash register, but may be great worker in another capacity Society has an interest in helping everyone get employed, especially those with criminal convictions--they need a job to become law abiding and taxpaying citizens
28	2. No Automatic Disqualification Rule Critical rule--cannot deny employment automatically (EEOC) Can have discriminatory impact by disqualifying a disproportionate number of members of minority groups Must determine if there is a a rational job related reason that person is unfit for the job FACTORS: Nature and severity of offense, when it occurred and nature of position
29	3. What if Applicant Lied? If background check locates criminal matter(s) that applicant misrepresented, then the dishonesty can be the basis to deny employment That is reason why employment application should ask about criminal records in broad, clear language, and inform applicant that dishonesty is grounds to deny employment.
30	4. Special Consideration if Using Arrest Records If based upon arrest only (i.e. not adjudicated and not pending), then employer must make some reasonable inquiry into underlying facts The issue is CONDUCT, not the mere fact of the ARREST Employer should not just dismiss applicant's explanation, but should take reasonable steps to determine if the explanation is credible
31	5. If Obtained by Outside Agency, Must Follow FCRA Employer (internal security) can go to all the necessary courthouses themselves, or hire an outside agency If use outside agency, search covered by the federal Fair Credit Reporting Act (FCRA) FCRA applies to both background screening agencies and licensed private investigators who regularly research backgrounds--called Consumer Reporting Agency (CRA)
32	The FCRA in Four Easy Steps Employer must certify will follow the law (not discriminate, use for employment only) Obtain written release/disclosure on a stand alone document Pre-adverse action-copy of report and statement of rights so applicant can object if information inaccurate or incomplete Second letter if decision is made final
33	6. Time Limits on Use of Criminal Records Under federal FCRA, no limit how far back can go for convictions (1998 amendment) BUT, there are arguably Eleven (11) states that still have a seven year rule that federal FCRA does not pre-empt Employers who do it themselves have no FCRA time limit (but state law may limit)
34	7. Special State Rules Need to be aware of special state rules California, for example, cannot utilize the following: an arrest not resulting in a conviction (Pending case OK), misdemeanor if received a certificate of rehabilitation, participation in pre-trial diversion or delayed entry of judgement program, a pardon or minor marijuana offenses for personal use over 2 years old.
35	8. Understanding the Conviction Are there proper identifiers? What was the crime? (What behavior was involved) How does it impact a job decision? Felony or misdemeanor? How long ago? Information current?
36	9. Policy on Convictions Go through individualized process taking above factors into account Have policy that employer maintains a safe work place and will conduct strict review of any application with a criminal record, but no automatic disqualification If exception made, document reasons (in case sued by third party for injury, or future applicant with similar record not hired)
37	10. If Person is Still Hired Document reasons and processes Ensure person is in a job for which they are reasonably suited Any special supervision or assistance necessary to help the person succeed and maintain safety?
38	Can Employer Be Sued for Checking Criminal Records? Chance of being sued successfully by a criminal for not hiring are probably remote Near statistical certainty that without screening, employer will hire a criminal since 10-12% of screened applicants have criminal records Employer must balance certainty that without screening they will hire a criminal against remote possibility of lawsuit The FCRA guards against mistake--applicant can review report prior to job being denied.
39	Why Pre-employment Screening Demonstrates Due Diligence Discourages applicants with something to hide Encourages applicants to be truthful--an employer may choose to hire someone with past problems as long as truthful (although there may be limits to the type of job) Helps an employer to hire based upon information, not just instinct
40	Safe Hiring Safe hiring is much more then background checks--a number of steps employer should take throughout the entire hiring process See Ten Tools For Safe Hiring http://www.esrcheck.com/web/articles/article26.html
41	Ten Steps for Safe Hiring 1. Tell applicants firm requires background checks 2. Use background release 3. Include language about foreign records 4. Ask about crim records in application and interview 5. Ask what past employer would say 6. “Honesty” language in application 7. Offer letter language if work starts before screening completed 8. VERIFY Past employment 9 Obtain past addresses 10. Include future screening in release form
42	Additional Resources Checking for Crimes-http://www.esrcheck.com/web/articles/article3.html Ten Signs you are hiring a lawsuit http://www.esrcheck.com/web/articles/article28.html Safe Hiring Audit-http://www.esrcheck.com/web/articles/Safehiringaudit.htm General: http://www.ESRcheck.com