Ted Moss on Cleveland radio WGAR – December 2009
Ted and Jim Mantel have fun talking about Crimcheck.com and Christmas.
Keep it Honest and keep Your Job
I have spent 30 years in the field of Law Enforcement , Retail, Industrial and Personnel Security as well as HR and Business. In That time I have seen employee theft go from a 10 Billion dollar a year problem to a 100 Billion Dollar drain on American businesses causing up to 1/3 of U.S. business bankruptcy. Here is a great article which illustrates the cost of dishonesty to ones career!Workplace Honesty: It\'s the Only Policy
Bringing teacher misconduct to light
More employers should be protected when telling the truth! I came across this news story which underscores the need for some basic protections for employers. Many states have shield laws which ostensibly give employers protections when revealing potentially derogatory information about former or current employees during an employment reference check. This protection applies so long as the inormation given is Job related, based upon credible evidence and Made without malice. Including an excerpt of your states law on the verification request can be helpful.
Recruiting: EEOC warns about background checks
When the Equal Employment Opportunity Commission started noticing an increase in discrimination suits based on background checks, the agency decided to warn HR Morning Your daily dose of HR
Fingerprint Based Criminal Record Searches
Employers frequently call our offices to request FBI fingerprinting as a pre-employment screening service for their company, but are dismayed when told that this service is only available to employers required by state and federal legislation to have fingerprint based background checks.
Certain job industries, such as education, volunteers, medical, and childcare providers, are required by law to receive fingerprint background checks through the FBI or state fingerprint databases. Certain private providers are authorized to electronically scan and transmit applicant’s fingerprints to these federal and state databases.
The truth is that neither the federal nor the state fingerprint database is the single best source for a pre-employment background check. The information reported varies from jurisdiction to jurisdiction and criminal records submitted into these databases may include arrest information not resulting in convictions, records that extend beyond reporting period scope, sealed or special disposition cases, deferred adjudications, and many other record types that may not be permissible for use for pre-employment screening purposes. The FCRA (Fair Credit Reporting Act) and various state legislation limits what type of records can be used for pre-employment screening purposes.
A 2005 study conducted by NAPBS (National Association of Professional Background Screeners) found that in a significant percentage of searches, the FBI database returned erroneous or incomplete information. The study, conducted by Craig N. Winston, an assistant professor of criminal justice at Sonoma State University, found that the FBI data lacks proper identifiers to credibly link a criminal hit with the subject of the investigation. Another finding was the large number of missed records and false positives that were generated. For example, when analyzing a sampling of 93,274 background checks in the state of Florida, Winston’s search revealed that the database missed 11.7 percent of the criminal records it should have identified. Even worse – of the more than 10,000 criminal records found, 5.5 percent of them were falsely attributed those who were not convicted of a crime. Results of this study can be found at http://www.napbs.com.
A better solution for employers is to conduct criminal record research by county and city courts, based on the jurisdictions where the applicant lived, worked and went to school. A nationwide criminal and a sexual offender database check can be added to cast a wider net for an even more thorough pre-employment screen.
I don’t know how many people watch CSI and other crime dramas, but it must be a lot! I cannot tell you how many people think that when we do a background check that there is a “magic” computer that is accessed to find out everything on everyone! Heck they even have a picture of you in your third grade play. I played the woodsman in a Spanish version of Little Red Riding Hood…I was quite a hit. In any event, no such computer exists; at least not completely. Some states and law enforcement agencies have managed to collect information from a number of sources but these are usually only regionally or locally accessible. The fact is, investigating someone’s background is not as easy as you think.
Public Records
After dealing with dejected looks and sighs, the obvious question comes up: “Where do you get your information?” “Public Records,” I reply confidently! “You mean public, as in I could get them myself?” “Well yes, but it’s a little more complicated than that” is my slightly annoyed reply. “So I don’t have to pay you to do them?” My first inclination is to say something snarky like; “well I guess I’ll go back to washing cars,” but I realize it is in my best interest to educate the masses, so here goes nothing!
First of all, what is a public record? Simply put, it’s any record that the government keeps which is of common interest to the rest of us. So for instance, if you go to court for theft and are afforded your constitutional due process, then it’s in the interest of the public and for the common good that the record of that government proceeding is kept open and public. This allows for the rest of us to see who the potential bad guys are in our midst. Secondly and probably most importantly, it provides transparency. No, not like that, so put your X-Ray specs away. They don’t work anyway, just ask my seventh grade teacher.
Public record transparency makes sure the government does not infringe on the bad guys’ due process. Why is that important you ask? Because he or she might not be guilty, or the case might end up being dismissed. In addition, you might be that guy one day. In short, it is in everyone’s best interest to see behind the walls of justice.
So here is the skinny. When it comes to criminal records there are about 3500 “upper” or felony courts and 10,000 “lower” or misdemeanor courts in our country. These courts maintain records for every person processed through its doors, whether the case was dismissed, is still open, pending, or was adjudicated either guilty or not guilty.
The county courts keep records of felony charges and reduced misdemeanors. Felonies are charges that can result in incarceration in a state prison and are generally more serious in nature than misdemeanors, which can result in jail time in a county or city jail. Local city courts keep records of misdemeanor charges, ordinance violations, and traffic cases.
There is No Comprehensive National Criminal Database
These courts are not tied together by a unified information system. Each state contains a central repository where the courts are supposed to report case information to; however many state repositories contain mostly felony cases and only some misdemeanors. Even the FBI criminal database is not comprehensive. On average, statewide and federal database records are about 60% to 70% complete.
So what’s a girl to do? Well that is easy, just go to the internet of course! If you enter background checks, let’s say into Google, you’ll find 8,200,000 entries. Amongst these results is a multitude of background screening providers offering instant national criminal results. Now, if the FBI can’t get it right how do they expect to? The answer: they do not. Database checks are NOT real time searches and they are not comprehensive. They contain static data from various arbitrary sources across the United States. Most importantly, they are not FCRA compliant.
FCRA Requirements
What is the FCRA? Well it’s something else for you, Mr. Employer, to worry about. The Fair Credit Reporting Act is the federal Law that protects potential and existing employees from undue scrutiny with respect to background screening. As a result, there are a number of rights afforded to the employee under this act as well as employer responsibilities. For instance, employers must notify applicants in a specific format that a background check is being done. The employer must advise the applicant of their rights under the FCRA. They must notify the applicant if they are being denied employment due to derogatory information discovered on the background check, and offer a means to dispute any negative information. If that is not enough, employment screening reports generally cannot contain information other than convictions. The EEOC, Americans with Disabilities Act and various state versions of the FCRA also contribute to complicating the process.
So where does this leave you, the self-serve background check investigator? Well, it means you have to take the time to educate yourself in order to avoid the pitfalls of conducting an incomplete or erroneous background check. The other option is to retain a professional investigative service that is FCRA compliant. Companies should post their compliance standards and professional affiliations on their web sites. They should understand the complexities involved with being a responsible consumer reporting agency (CRA). Additionally, membership in a well-known trade organization such as ASIS international or NAPBS is recommended. If you want to take on the task of completing background checks yourself, it is possible, but it is advisable to take the time to educate yourself first.
Negligent Hiring – What Every Employer Needs to Know
First Published on COSE Mindspring – 2/08/08
Authored by Ted L. Moss, CPP
In nearly every U.S. state, courts have ruled that employers owe a special duty to their employees and clients to protect them from the harmful or criminal acts of other employees. Financial awards and public fallout from instances where a company’s employee has caused harm to another employee can be excessively large and often punitive. At the heart of many of these rulings is one overriding element of employer responsibility: responsible hiring practices. Negligent hiring litigation is a growing problem and statistics show that employers lose 79% of all negligent hiring suits.
Responsible hiring means that an employer has made active and reasonable attempts to discover any historical indication, whether criminal, characteristic, or propensity, that would provide ample warning in regards to the safety of his or her employment. To establish negligent hiring, the harmed person generally must show that 1. The employer did not exercise reasonable care in hiring the person, 2. The employee had dangerous tendencies which should have been apparent if the employer had exercised reasonable care, and 3. The employer placed the employee in a position where others could be injured.
Many companies have a legal obligation to perform background checks on employees if they will be placed in certain situations. Some of these might include:
Working in close contact with children
Supervision of children or the elderly
Access to personal residences or personal property
Responsibility of providing safety to others
Driving and transportation
Access to guns or weapons
In these cases, driving records checks, criminal and sex offender checks, and verification of identity are the norm. But even those businesses that are not legally required to perform background checks on employees can be found liable for negligent hiring, because from the perspective of the courts and the government, every single employer has a responsibility to perform due diligence to determine at least the employee’s fitness to perform the job safely.
What level of screening is enough to mitigate risk?
Reviewing the employment application and verification of references is not always enough. The level of screening should be proportionate to the level of inherent risk that the position entails. Some basic factors to consider should be:
Conduct a thorough background check for criminal records/sexual offender lists/identity verification
Review driving record history and verify educational history/degrees/employment records
Conduct an in-depth interview, with investigation into any employment lapses
Verify all references
Psychological testing
Consider a professional review of the resume for potential fraud
Drug Testing
If this list seems excessive, consider the fact that the fee for a professional screening firm to conduct the above testing would usually not exceed the cost of two days salary for most entry level employees. Most of the above can be conducted in-house, (click here for a listing of free public records) if the company has access to a specially trained HR professional dedicated to administering the hiring process. The law is very specific to what public and criminal records can be used when making the hiring decision, so make sure that your new hire administrator is well trained in the various federal, state, and local laws pertaining to hiring. If hiring a professional pre-employment screening firm, make sure they are adequately certified and knowledgeable regarding CRA (consumer reporting agency) regulations.
Ted Moss featured in Smart Business Magazine
There is no such thing as the perfect employee. But there are ways to find out, through pre-employment screening, if a candidate will be right for your company or if that person could potentially cause problems once hired. Read the rest of this article »
Cleveland, Ohio (April 10, 2008) Ted L. Moss, CPP, has been named a contributing editor to COSE Mindspring.com. Visit COSE Mindspring at http://www.cosemindspring.com/
COSE MindSpring, is COSE’s peer-based virtual information portal, where members meet, exchange ideas, share experiences and grow. Powered by relevant and timely articles, discussion boards, guest editors and practical topics, small business owners connect to the necessary tools to start, maintain and grow a small business in Northeast Ohio. COSE MindSpring. A meeting of the minds.
Crain’s Cleveland Business – March 2008
Excerpts of an Article in Crains Cleveland Business – March 2008
Background checks are becoming a more standard practice among companies of all sizes considering new employees, according to executives in the screening business.
Weeding out the bad seed
Although employment screening services used to be conducted mostly for larger companies, smaller firms are getting into the game. Small businesses, screening firms said, are becoming more aware of the dangers of not checking up on
potential employees, especially given the harm one bad seed could do to a modest organization. Indeed, digging into someone’s past can save a company the time, money and embarrassment of hiring a bad employee or one who is being less than honest.