Does your company have a documented conviction policy?

If your company checks for conviction information on its applicants, you should have a written policy to govern your actions. A written conviction policy will help guide any employees responsible for making employment decisions and help you to remain consistent in the employment decisions you make. What should your policy include? Consider the following:

• What definition of “conviction” will your company use to consistently apply the policy. For example, a “conviction shall include a plea, verdict, or finding of guilt, regardless of whether senescence is imposed by a court.”

• How will the company use conviction information? For example: “ the company may consider any conviction as a possible justification for the refusal, suspension, revocation, or termination of employment when it directly relates to the applicant’s possible performance in the job applied for; and, to the employee’s performance in the job the employee holds”.

• Is the conviction job-related? Your policy should describe the factors you will consider when determining if a particular conviction relates to the ability of your applicant or your employee to perform on the job, such as: the length of time since the conviction occurred; the nature of the conviction; the job and its responsibilities; employment history before and after the conviction; age at the time of conviction; etc. Additionally, your policy should take into consideration a concern for the safety of your employees and those they serve, as well as the public reputation of your company.

• What records should not to be considered? For example, annulled or expunged records, misdemeanors aged twenty years or more, convictions for which no jail sentence may be imposed under the law (infractions, etc.) should not be considered. Additionally, your policy should address what actions may be taken if an applicant or employee lies regarding a conviction.

• Several states (such as California) have laws that limit restrict the use of criminal histroy records for employment purposes in a way that is more restrictive than the FCRA. Ask your legal department if any of the states in which you opertate have restrictive laws.

Having a written policy not only guides decision-makers in their actions, but also helps provide justification for decisions made. It is best to consult with your corporate legal department before devising or implementing any important employment policy.

Texas DPS “CCH System” Criminal Database Searches – Know What You Are Getting!

If you are considering searching the Texas Department of Public Safety’s “CCH System” you probably have a good reason for wanting to do so. Most likely, you are interested in protecting your company, its employees, your customers, and others. Additionally, you are more than likely concerned about protecting your company liability relating to negligent hiring. You’re probably interested in all of these things, including, the potential to save some money in your employment screening budget.

Before you decide to hang your hat on this database search, you should know what you are getting. Or, more importantly, what you are not getting. Below is an excerpt from a December 2000 report by the Texas State Auditor’s Office (SAO) relative to the accuracy of the CCH database used by some public and private entities for employment screening.

“Data in the CCH system are incomplete because the records are based on information provided by local justice agencies. A 1996 SAO evaluation of the CCH system indicated that criminal history information on arrests, prosecutions, and court decisions will not be complete, accurate, and timely, until DPS controls are strengthened”........”local jurisdictions failed to enter 27% of known arrest information and 50% of known felony case dispositions into the CCH system”

Moreover, the DPS site itself carries this warning relative to the information you obtain through its database:

“Information obtained through this system may be inaccurate for several reasons. All Conviction and Sex Offender Registration data is provided to DPS by courts and criminal justice agencies. DPD sometimes does not receive information from these sources in a timely manner. Also, reporting courts and agencies may not always provide dates and/or locations of these convictions or offenses. Additional information may be available from court clerks and criminal justice agencies where these offenses were adjudicated.”

Asset Control cautions anyone engaged in screening applicants against relying wholly upon information obtained from the Texas DPS and CCH conviction database. The first danger in relying on CCH searches lies in the risk of obtaining an existing but incomplete record (arrest but no conviction data). This is a risk inherent with all “database” searches. However, the more significant danger to you, your employees, and your customers resides in the 50% chance that existing felony level convictions will be missed by your search because the record was not reported to begin with. With the accuracy rate reported by the SAO and with the caveats clearly posted on the DPS site, we believe it is unlikely that this search will meet the due-diligence standard needed to protect you from civil liability. Additionally, we believe users will be exposed to increased liability in the event a serious record is missed. Punctuate this with the October 3rd, 2004 Dallas Morning News expose "State's criminal database has holes", and users are duly forewarned that use of the database for employment screening could pose serious consequences.

European Union (EU) Stands Up for Employee Privacy

Recently, some of our clients have asked about the EU’s stance on employee privacy and the transmission of personal identifying data between EU countries and the U.S. Our clients that have asked have contracts or corporate facilities in Europe.

The EU "rules" on the transmission of personal identifying data are only recently developing as is the enforcement of these emerging rules. By the way, these "rules" apply to the transfer of all employee related data between EU countries and the "outside world", not just background check data. Historically, the development of these rules has lagged behind ours in the U.S., and to date the EU has basically achieved an on-par status with our own privacy rules. Nevertheless, we believe it is important for all clients who transmit personal identifying data back and forth to EU nations to stay on top of this issue through communication with their foreign offices and business partners.

Appointing a "Privacy Officer" to coordinate the collection of information regarding these new rules is not a bad idea. We hesitate to say that if you are in tight compliance with our own FCRA standards and practices that you should be in good shape for the meantime, because we all know that those Europeans have their own nuances. But this is primarily a correct assessment. The main issues are consent, disclosure, and data security - as they are here. Also, it is important that you begin to put your privacy policy and procedures in writing so that you can produce them if necessary.

Asset Control is in the process of investigating just how the EU rules diverge from our own at this time. For now, I would say that if you are doing the following you should be OK, for the moment: 1) when you transfer data make sure you are using industry standard SSL encryption methods; 2) avoid fax transmission of personal identifying information between EU countries and the U.S; 3) make release forms available in their native languages if applicants cannot read English; and, 4) make sure applicants have a way to obtain written "consumer" reports that may contain derogatory information.

In our opinion, the most critical thing at the moment is to understand the laws surrounding the use of background information in Europe. This is the one area where litigation or criminal penalties are most likely to be assessed. Some of the more liberal countries in Europe (like Sweden, Denmark, Germany, France, and others) may place a different value on certain behaviors than we do in the states. Therefore, I wouldn't be surprised if they have barred discrimination in employment for certain convictions, where we have not. Remember, even in California there are laws which prohibits employers from considering certain drug convictions in the employment process.

Asset Control will keep our clients posted as we learn more.

Employment Eligibility Verification & the Law

Many of our clients have asked what the government is doing to better enable employers to verify the work eligibility of applicants. Indeed, employers everywhere are interested in knowing for sure that the employees they hire are authorized to work in the United States. For some the concern reflects 9/11 and the potential for terrorists to infiltrate by gaining employment. For others the interest lies more in making sure their company is strictly complying.

First, let me begin by saying that any assistance or information provided by the Fed occurs on a post hire basis and not at the application phase of the hiring process. Having clarified that one point, I can tell you that unfortunately the program remains essentially the same now as it did prior to 9/11. The government still expects you to do the best job you can of reviewing employment documents at the point of hire. If you suspect some falsification or fraud in an employee's documentation you may still call the Fed for assistance. The Social Security Administration will still verify the information provided by your employee against the SSA database without much fuss, so long as you provide them with your EIN number. The INS (now the U.S.CIS) will also assist, but only in cases where fraud is suspected. I have known them to be reluctant to assist even under those circumstances, probably due to the high volume of calls they have received since 9/11.

There is one piece of good news though, and that is that President Bush has extended the SAVE program through November, 2008. The SAVE program allows employers in Texas and a select number of other states to verify the eligibility of new employees on-line. Employers can subscribe directly, or work through a designated agent such as Asset Control/ChooseToCare. Queries can be made on-line and hit up against a data base consisting of information from several government agencies, such as the Social Security Administration.

The SAVE program is currently available to employers in the states of California, Florida, Illinois, Nebraska, New York, and Texas. However, once an employer has signed up to participate in CA, FL, IL, NE, NY, or TX, they may elect to sign up other company hiring sites located outside of the Basic Pilot states. To find out more about the SAVE program and how Asset Control can act as your designated agent please call our offices at 940-891-1919.

Special Vigilance: How employers can protect their assets and their communities

Given the current situation at our boarders, we believe there is a significant risk that terrorist might gain access to U.S. employers to help establish cells. This risk is paramount in south Texas and southern California, in particular. While cell members may want to gain access to certain employers (such as public utilities, chemical manufacturers, or refineries) because of target value, we must quickly point out that any public or private sector employer is susceptible to being used by a foreign national terrorist(s) as a means of cover or base of operation. Subsequently, it is the responsibility of all employers to do everything allowable, under the law, to identify workers who are illegal or who are presenting false worker identification.

Minimally, employers must make certain that I-9 procedures are closely followed. Additionally, companies should train human resource employees how to recognize falsified employment documents. Information regarding false INS documents and proper I-9 procedures can be found on the following Homeland Security Web-site: http://uscis.gov/. Additionally, I recommend that companies run Social Security Number searches on applicants as a way to detect “borrowed” numbers. Social Security Number searches are cheap to run, and they are invaluable in determining where criminal background checks need to be done. Your background screening service provider has the access and the means to do these searches for you.

On a post-hire basis, the Social Security Administration will assist employers by verifying an employee’s D.O.B., and gender. Many fraudulent applicants will not know the real D.O.B. or gender associated with the people whose identities they have stolen. Often this is all you will need to trip them up. Before you get on the phone with the Social Security Administration, you will need to be prepared to give them your company’s EIN number.

Last, in certain high risk states, the Department of Homeland Security provides a means for employers to verify employment eligibility on a post hire basis. This program, called SAVE, also checks an employee’s name against various other Homeland Security databases and watch lists. Participation in this program is a terrific way for employers to help protect their businesses and their communities against the risk of terrorist attack. Asset Control is a registered agent for the Department of Homeland Security’s SAVE program and can facilitate your participation in it. Please call us if you are interested in participating in this valuable but inexpensive program.