The recent LA Times story on the discovery of current employees with criminal records, and the Los Angeles county supervisor’s suggestion to re-check 100,000 current employees for criminal records, brings up some surprising facts and issues surrounding criminal records and current employees.
According to Robert Mather, CEO of Pre-employ.com, a California based pre-employment screening firm that screens up to 10,000 individual employee records a day, employers should take a moment to educate themselves prior to checking current employees for criminal records..”
“It is imperative that employers, particularly in the state of California, take a moment and think through the possible scenarios and the “what ifs” prior to commencing the program.”
Mather says he receives numerous calls or queries from employers each month regarding the issue of a current employee with a criminal record.
“The most common scenario is that a coworker sees the employee on a sex offender website, the news, or hears a rumor surrounding an arrest or conviction and tells the employer about it."
The employer’s desire is almost always to immediately discipline or terminate the person.
“Common sense would seem to dictate that if you discover you have a current employee with a criminal record, you immediately take action and discipline or terminate their employment. I mean, it seems like a simple solution to a simple problem, right?” Mather asks.
“Not so fast,” says Pamela Devata of the national labor law firm Seyfarth Shaw.
“Employers can get themselves into serious legal hot water if they do not have a cursory understanding of the federal and many state laws surrounding employee background checks,” said Devata.
“Prior to initiating annual or other periodic checks on employees, employers should consider the risks and benefits of doing so as well as the potential exposure for failing to comply with applicable state laws surrounding such checks.”
“At the minimum, employers should ensure that they have a compliant consent form for each and every employee, and, in some states, that a consent form is executed before each and every check. In California, for example, this is especially important given the applicable law and potentially large damages for failing to comply.”
But the issues go much further than just having permission to check for a criminal record. According to Mather, twelve states bar an employer from using information that is older than seven years.
“As incredible as it seems, in these states, if a convicted rapist, embezzler, child molester or other criminal is denied a job or you fire or demote the criminal because of this information, you are in violation of the law and can be sued.”
California is one of the states that bars the usage or reporting of criminal record information prior to seven years for employment purposes.
The twelve states that have 7 year limitations on reporting criminal information include: California, Colorado, Kansas, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Mexico, New York, Texas, and Washington.
Even if the crime was within the 7 year reporting limitations, or if you operate or live outside these 12 states, several states require you to notify the employee of your decision to discipline or terminate their employment PRIOR to acting on the information.
One company, LexisNexis, was one day off in reporting information to a potential employee and paid $19 million dollars to settle a class action lawsuit.
Ohio based LexisNexis ran afoul of the federal law this year when it allegedly failed to send notices to applicants and/or current employees before allowing employers to see the potential criminal record information (Williams v. LexisNexis Risk Management, Inc. Case No. 3:06cv241). The lawsuit also alleged that LexisNexis did not allow employees to easily dispute the criminal information, instead demanding that the employees/consumers fill out a form and supply two pieces of identification before proceeding with the reinvestigation.
Although LexisNexis admitted to no wrongdoing, they did agree to settle for millions in the class action suit.
Other interesting facts according to Mather:
In California, if you or your background check company use the Megan’s Law website to check potential or current employees for sex offender status you are in violation of California Penal Code (Section 290.46(j)(2))
In Nevada, the same applies to the state sex offender registry (Section179B.270 Nevada Revised Statutes)
If you use a third party to investigate a current employee who is not involved in a active investigation (sexual harassment, embezzlement, etc.) and you DO NOT get written permission, you are in violation of the Federal Fair Credit and Reporting act (Section 604(a)(2))
If you do not allow the person to receive a free copy of your findings (in some cases prior to your decision) you can be sued under Cal. Civ. Code Sec. 1786.16
California Department of Justice fingerprints do not find any records outside of the state of California, so a person convicted of a felony elsewhere will not show up unless you hire a firm to search all applicable courthouses
The average background check costs an employer between $25 and $125 depending on the range of information checked