Texas Child Protective Services Employee Slipped Through "Self-Report Honor System"

The Dallas Morning News reported that the State is going to have to take a new look at a “self-reporting” background check policy after it came to light that supervisor in North Texas working for the Department of Child Protective Services (CPS) was found to have a criminal history.

Lauren Taylor was arrested on misdemeanor charges that included a DUI arrest as well as a domestic violence incident, in which she had bludgeoned her husband with a house lamp and then bit him.

Patrick Crimmins, a CPS spokesman, was asked if the agency was concerned at all about this incident and said “Yes we are, obviously. All employees are required to report these incidents – required to. It is not a suggestion."

The state background check system has come under fire in recent years for having large gaps in which individuals with questionable histories can slip through and begin drawing state paychecks. This latest incident burns the spotlight even hotter on a system that relies in part on a self-report “honor system.”

CPS falls under the departmental umbrella of the Department of Family and Protective Services (DPS). The DPS utilizes a database which has been found by the Dallas Morning News in previous articles to contain a number of security gaps. There have been failures on the part of many counties to report to the DPS final verdicts in many criminal cases, which is a state law requiring they do so.

A recently passed law has given the counties more incentive to communicate these verdicts up the chain of command, but it’s hardly a fix for a system in need of an overhaul. Some see independent background check agencies as a viable means for facilitating background checks between counties and the DPS.

Although not yet policy to utilize background check agencies, Mr. Crimmins did speculate that “It is something that we could look into.” Doing so would require
approaching the legislature and requesting the appropriate funds.

While some might balk at the request for additional funding, what might be preferable? A few hundred thousand for background screening funding or millions in state payouts resulting from lawsuits stemming from negligent hiring practices? You make the call.

Fortunately, some see the reality of the situation, such as Texas Senator Jane Nelson. Ms. Nelson was responsible for passing a bill in a recent legislative session requiring FBI fingerprint checks of individuals working for contractors who provide services to state agencies that are in contact with vulnerable state populations (i.e. the elderly, disabled and young children.)

The Dallas morning news quoted Ms. Nelson as saying "The accuracy and timeliness of criminal background checks have come a long way, but more work is needed. Because resources are limited, it is important that we prioritize our resources on the vetting process with individuals who have the most direct access with our vulnerable population."

Can people be trusted to come completely clean about their past when it comes to getting a paying job? In a perfect world the answer would be yes, but unfortunately we’re living in one where the truth isn’t always forthcoming. Especially given the current economic climate, many might not willingly come forward with information that will keep them from steady employment and a steady paycheck.

Perhaps in certain situations (And to be honest I really can’t think of many) a self-reporting system might be appropriate, but with the DPS there needs to be a bit more of a substantial and regimented background screening process in place.

Although Lauren Taylor’s position with CPS did not have her in direct contact with children, what if it did? It underscores the importance of utilizing a system that guarantees only qualified individuals are put into contact with segments of the population that find themselves most vulnerable to society’s disagreeable elements. The modern era unfortunately has proven that we can’t always rely on the “honor system” and assume everything will go to plan.

UNIVERSITY OF AKRON RETRACTS DNA BACKGROUND SCREENING POLICY

The faculty senate of the University of Akron gathered on Thursday, November 5th to discuss the future of their newly proposed background policy that included a provision requiring submission of one’s DNA as a part of the process.

Following the proceedings, Akron University reached a decision to remove the DNA requirement from the revised background screening policy set to go into effect November 21st. The University of Akron’s media relations specialist Laura Massie explained that the intentions behind the policy were to prepare the institution for the expected direction background screening standards will surely take over the course of the next few decades.

The policy had drawn intense criticism from University faculty members, the local branch of American Association of University Professors and from the ACLU on grounds that it violated the Genetic Information Nondiscrimination act (GINA). In fact, one of the university's lecturers resigned mid semester in protest.

The DNA testing would have been applied to prospective members of the permanent faculty and administrative support staff, as well as any contracted workers performing work on campus grounds.

The senate’s final ruling found that testing had the potential to violate individual privacy and carried the possibility of bringing an avalanche of legal challenges and liabilities.

Rather than deal with that type of headache, Ted Mallo, VP of the University & general counsel, suggested a tactful rewording of the background screening policy. Mallo recommended replacing it with this sentence: "The candidate may be required by the law enforcement agency to provide additional information which is needed by the law enforcement agency for purposes of conducting the criminal background check."

The University of Akron obviously didn’t have genetic screening for predisposition for violent or criminal activity in mind, but that’s something one can’t help think of when DNA is associated with a background check. DNA checks aren’t enacted by any employer in the country and according to Mike Birckner of the ACLU it’s “just unheard of.”

Given time the University of Akron may be quite right in i’s reasoning that DNA checks represent the wave of the future and, in years to come, providing a swab or blood sample will be as commonplace as signing a verification release form. But until that time comes, it should be small steps all the way. As seen with the commotion generated by the University of Akron, it might just be a bit too soon for full blown implementation in a professional hiring environment.

RICHMOND CITY CUTS CORNERS & WINDS UP WITH A FELON ON THE PAYROLL

Would you hire a convicted felon to be your office manager of your city street department? Probably not, but Richmond, Indiana city officials found themselves in an embarrassing situation after cutting corners on employee background checks resulting in the hiring of Julie Smitson, a woman who had previously served six months in prison on charges of theft and forgery.

Having already done time in an Indiana prison for stealing more than $65,000 from a previous employer, Smitson was hired October 27th, 2004 by the city of Richmond to serve as their office manager for the Street Department.

As if that oversight wasn’t bad enough, Smitson decided to appropriate city resources for personal gain. Charges filed by the Wayne County Prosecutor’s office allege that she used department credit cards to ring up more than $2,000 in unauthorized landscaping tools, garden supplies and other miscellaneous items for her own personal use.

She is being charged with 11 counts of theft and one count of official misconduct.

Richmond Mayor Sally Hutton was quoted as saying “When you do that (local criminal) background check you only get your county," she said. "If you want a much more involved check, it's a lot more expensive."

Hutton did admit that there had been oversight and that more in-depth background checks would be run on new hires in the future.

"We've decided after this we will do a much more thorough investigation despite the expense."

Living in an age where it’s all too easy to hide a shady past, cutting corners for the sake of a few dollars is never the right way to go.

Bus Driver with Criminal Record Leaves Disabled Person Stranded on Bus

Ed Wynn Rivera, a 22-year old man who suffers from cerebral palsy, was left stranded on a bus for 17 hours on New Year's Eve. Wynn is unable to speak or move on his own.

The bus driver, Walter Gibbs, is a employee of Outstanding Transport. He was only on his second day of the job when he left Rivera on the bus.

Outstanding Transport's website claims that their drivers are routinely background checked and have excellent driving records:

OTI's drivers are 19A Motor Vehicle Qualified. This means that they are randomly drug tested, fingerprinted, background checked and with no criminal background. They all have excellent driving records and must maintain them. OTI holds weekly safety/ training classes on site and requires every driver to attend these regularly.

That being said, Gibbs has been arrested 28 times. Charges he's faced have included forgery, grand larceny and drug crimes as well as having had his driver's license suspended 12 times in the past 12 years.

The owner of Outstanding Transport, Charlie Curcio, is refusing to comment.

Police sources stated that Gibbs will most likely not face charges for leaving Rivera on the bus. They have arrested the bus matron, Linda Hockaday and arraigned her on charges of reckless endangerment. She claimed that she was late for a music event at her church and assumed Gibbs would take Rivera home. Gibbs claimed that checking the bus for any passengers left on it was not part of his responsibility.

With all the blame going around, Rivera is currently being treated for hypothermia. Temperatures dropped to 15 degrees during his time in the bus. He is expected to make a full recovery much to his family's relief.

Whether or not you feel the bus driver shares any responsibility of this incident, the fact is that he clearly was not background checked properly. Making claims, but not following through can put people in jeopardy, especially for a company who busses the disabled and children.

Trucking Company Sued Over Negligent Hiring

An Illinois state police officer is suing a trucking company and one of its employees, claiming his jaw was broken after the man punched him in the face during an arrest.

The police officer, Michael Link, was attempting to arrest Ronald Fraction for driving under the influence and driving a commercial motor vehicle with a disqualified license when Fraction "struck Plaintiff in the face with his fist breaking Plaintiff's jaw in two places," according to the lawsuit.

Fraction was driving a company vehicle when he stopped at a bar, intending to complete his job after he left. Link responded to the scene of an accident wherein Fraction had become stuck on the side of the road on November 22, 2007.

Link is suing because of great pain, mental anguish and the time he missed from his job, including overtime. The suit states that TransAm Trucking failed to perform a background check on Fraction. Had they done so, they would have picked up his history of drunk driving and his prior record of attacking police officers.

Link is seeking $100,000, costs, attorney fees and whatever other relief the court sees fit to give him.

A proper background check would have cost TransAm Trucking a substantial amount less than this lawsuit.

You Have Some Explaining to Do, Mr. Mayor.

In Jeffersontown, Kentucky, Public Works Director, Joseph McMillan, was fired last week after being arrested for possession of crack cocaine. The arrest prompted the city council to take action and last night they voted unanimously to establish random drug testing for all city employees. The city council is also going to meet later this week to discuss implementing background checks on all employees.

McMillan was hired in January of this year by the Jeffersontown's mayor, Clay Foreman. The job application for the city does not ask if applicants have ever been convicted of a felony or misdemeanor. McMillan was already on probation for charges of DUI and criminal mischief when he was hired, which would have been uncovered by a simple, quick background check.

Mayor Foreman has been friends with McMillan for years but claimed he did not know about his criminal record. He noted that McMillan possessed a commercial driver's license and had experience in his family's construction business. Foreman said he hired McMillan because his family had done lots of work for the city over the years, dating back to the 1980's.

It has since been discovered that McMillan has been arrested nine times since 1985. Mayor Foreman fired him last Friday.

California Attempts to Ban Credit Reports for Employment Screening

The California State Senate is currently working on bill AB 2918, which will extremely limit the use of credit reports for pre-employment screening purposes. If passed, credit reports will only be allowed for positions which receive high compensation or for law enforcement positions in which employees will be working with or handling money.

This bill, if passed, will eliminate the ability of employers to check their employees' credit when hiring for positions that deal with the handling of money. This would include employees who would have access to cash, merchandise and clients' personal information, such as credit card numbers.

As it is not legal to use a FICO score to determine employment, pre-employment credit reports do not record that information. Rather, they give an employer the ability to see how a potential employee handles their finances, painting a picture of their responsibility and character. In addition, a pre-employment credit report does not deduct points from a person's credit score.

So why is California trying to ban this access?

Assemblywoman, Sally Lieber (D), introduced this bill on 02/22/2008. It went through its second reading in the Senate on 08/19/2008. Lieber's supporting argument was as follows:

"In the past, only banks and financial services companies routinely ran credit checks on potential employees. But employers in other sectors increasingly are including them in the screening process in an attempt to assess applicants' personality traits such as honesty and integrity. United States employers' use of credit checks increased fifty-five percent over the past five years, according to one recent study. This trend makes it harder for people who are laid off, newly divorced, or saddled with student loans to find full-time jobs. The employers' view may be that these people are irresponsible deadbeats, but there can be many contributing reasons such as identity theft or large medical bills. Credit reports were not designed as predictors of employability, and people who have thin credit files - students, young workers, the poor, the elderly - tend to be at a disadvantage because their reports do not predict how they will behave in the future."

The California Association of Licensed Private Investigators spoke in opposition of the bill:

"AB 2918 would prohibit the use of information which is pertinent to evaluating the trustworthiness, integrity, and responsibility of the individual. This is critical in situations where the person is being considered for a position where funds, personal information, and/or confidential business information will be involved. It is important to note that the information contained in a report issued to an employer by a credit bureau is different than the information contained in a consumer credit report that is used for an evaluation of the individual's creditworthiness. The report issued to employers does not contain FICO credit scores or account numbers. Some examples of situations where consumer credit report information is important are: retail and food establishments where the employees will be handling money, property management companies where the employees will be sent into residences, sometimes when the tenants are not home, as well as housecleaning services, hotels, motels, arid others, and parking lot attendants, who collect large sums of money with no supervision."

We spoke with Christopher Ballas, CEO of Backgrounds Online, who stated, "Any position within a company has the capacity to be a potential liability, from CEO to an entry level job. Why not allow employers, who in the end will bear the burden of the actions of their employees, to make sound and informed decisions? A pre-employment credit report is a valuable piece of information to employers that are looking to place the best candidate in the appropriate position."

Status, voting and the bill's history can be viewed here.

State Criminal Record Restrictions (Part 5 of 5)

State Restrictions on Reporting

There is a substantial difference between state laws that restrict the use of criminal records by employers and laws that restrict what a vendor may report. Several states restrict what a vendor is allowed to report (these states have different, more strict, limitations than the FCRA). More and more states, however, are revising their laws to mirror the federal guidelines.

States that recently still restricted vendor reporting of criminal conviction information to seven years were California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hamshire, New Mexico, New York, Texas, and Washington. However, Kansas, Maryland, Massachusetts, New Hampshire and Washington waive the time limit if the applicant is reasonably expected to make $20,000 or more annually. In New York, the exception is $25,000 and in Colorado and Texas, the figure is $75,000.

It should be no wonder that many employers and vendors concentrate on complying with the federal FCRA guidelines.

State Criminal Record Restrictions (Part 4 of 5)

Time Restrictions Imposed on Criminal Records

Part four in our series discusses how some states have imposed limitations on the reporting of criminal records by time. While many states have some type of limitation of this type, a few notable examples are discussed below:

California – A consumer report may not contain criminal information older than seven years.
Hawaii – Employers may not examine criminal convictions past ten years.
Massachusetts – Certain misdemeanors (as detailed in part 1), may not be revealed past five years.
Maine – In most instances, an employer must only consider the prior three years.

Your best bet is to work with a consumer reporting agency or employment screening vendor who can guide you through your states specific laws. One of our advertisers, Backgrounds Online, is highly regarded in the industry for their meticulous attention to detail and depth of knowledge regarding employment laws, which is one of the primary reasons we have offered them advertising space.

State Criminal Record Restrictions (Part 3 of 5)

Limitations on “First Offense” Records

Part three in our continuing series discusses how employers may limit the use of records relating to a first offense. As of the date of publication, two states have enacted laws which give first time offenders a “do-over” of sorts.

Georgia – Certain first offender crimes in which the offender has been discharged without court adjudication of guilt are not reportable under Georgian law. The law requires that a “notification of discharge and exoneration” is to be placed upon the record by the court. This discharge is not to be viewed as a conviction, and therefore may not legally be used to disqualify an applicant in employment.
Massachusetts – This state has one of the most lenient criminal laws in the country as pertaining to future employment. Employers may not, under any circumstances, inquire or maintain records related to a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.

These laws are written to allow for a convicted criminal to “learn from their mistakes,” however more commonly it prevents employers from effectively screening trouble-makers from the beginning.

State Criminal Record Restrictions (Part 2 of 5)

Prohibited Use of Expunged or Sealed Records

An expunged (occasionally known as sealed) record is one which a court has declared to be erased or omitted from public record. This process causes some county courts (or statewide repositories) to report no criminal records even though one originally existed. Although this is occasionally quite useful (for instance, in the case of an acquittal after a wrongful conviction), typically this process is quite irresponsible and in the opinion of some: downright dangerous.

As hard as it may be to believe, there are criminals among us who have convinced a judge (expungement requests are not heard by juries) to make it illegal for the courts to disclose the record. Typically in this case, the court will report that there are no records “due to expungement.” This statement at least informs you that there was once a record, however it becomes illegal to attempt to determine what the record was for originally. As a result, the following thirteen states explicitly prohibit the consideration of expunged or sealed records:

California
Colorado
Connecticut
Florida (There are some exceptions.)
Hawaii
Illinois
Kansas
Ohio (Employers are prohibited from inquiring about job applicants’ juvenile arrest records that have been expunged.)
Oklahoma
Oregon (Employers cannot refuse to hire based upon a juvenile record that has been expunged.)
Rhode Island
Texas
Virginia

There are a few additional states that, while not explicitly prohibiting employers from reviewing the records, do allow job applicants to “lawfully deny or fail to acknowledge” sealed or expunged records. It is possible, and in some cases likely, that an employer who refuses employment based on expunged records would be challenged in court. Most CRAs or Employment Screening Vendors will suppress notations regarding sealed or expunged records to limit your liability in these cases.

State Criminal Record Restrictions (Part 1 of 5)

Misdemeanor Conviction Record Limitations

In this first article of our five part series on State Criminal Record Restrictions for use by employers, we look at states that prohibit the use of misdemeanor convictions for employment screening.

As of publication, five states impose limitations on the use of misdemeanor records as a disqualifier for employment. These laws have been enacted, in part, to address the “job relevance” issue – it is believed by some that misdemeanor crimes are not severe enough to be an indicator to job performance. If you live in any of the following states, we urge caution when reviewing misdemeanor criminal records prior to the hire of a new applicant.

California – When probation has been successfully completed or discharged and the case has been judicially dismissed (sometimes known as judicial diversion), employers are prohibited from using these records, if uncovered, to deny employment to an applicant based on this sole piece of information. Additionally, employers are prohibited from asking about certain less serious marijuana related offenses.
Hawaii – Employers are prohibited from considering misdemeanor convictions when a jail sentence cannot be imposed. (This can also affect some felony records, as well.)
Massachusetts – Employers cannot use any misdemeanor conviction records where the date of conviction (or the date of the completion of incarceration, whichever is later) took place five or more years prior to the date of employment, unless the applicant has also been convicted of any other offense within the five years immediately preceding the date of application.
Minnesota – Employers may not hold against the applicant any misdemeanor conviction for which a jail sentence cannot be imposed.
New York – Employers must dismiss records of any misdemeanor convictions older than five years unless the person has also been convicted of some other crime within the past five years.

Companies working with a CRA or Background Screening company should understand that although these types of records may be uncovered, it is possible that they may not be reported, and if they are reported, they must be ignored. If you feel that these rules are irrational, unsafe, or prohibitive to a secure workplace, we urge you to contact your governor and request that these laws be changed. Find your state governor.

New Employment Screening Blog!

Welcome to the Pre-Employment Screening Resources new Blog. We're excited to offer this new feature on our site as a way for employers and human resource professionals to stay up-to-date with the ever-changing laws, best practices, and news from the Employment Screening Industry. Be sure to bookmark (ctrl+d) this page and check back often for useful information.