Wednesday, December 21, 2005

Deferred Adjudications – What Employers Should Know

A “deferred adjudication” is a disposition whereby a defendant is placed on “deferred adjudication probation” for a period of time in exchange for a guilty plea or a plea of no contest. If the defendant completes the probation successfully, typically the charge is dismissed.

Some employers struggle to understand the meaning of and the law surrounding the use of deferred adjudication in the employment decision, and with good reason. Generally, the law regarding the use of deferred adjudications is vague, contradictory, or not enforced. Courts are divided on the question of whether or not a disposition of deferred adjudication constitutes a judgment. Some have determined that since a deferred adjudication (again, in exchange for a plea of guilt or no contest) results in a consequence which involves a sentence to custody (probation) that it is, indeed, a judgment. Other courts have determined that since no final determination of innocence or guilt has been delivered, that no judgment has been entered.

Deferred adjudications are intended to protect first time offenders who have committed minor criminal infractions from the lifetime stigma a conviction may impose. However, deferred adjudications remain a part of a person’s public record unless the charge is expunged or granted restricted access. Therefore, in most cases, deferred adjudications remain visible to employers and difficult to ignore during the employment decision. Currently, we are aware of no law, except in California, that restricts background screening agencies from reporting deferred adjudications, or, employers from considering deferred adjudications in the employment decision. California allows the reporting of D/A cases where the defendant is still on probation but not cases that have progressed to a dismissal. Yet, some employers prefer that deferred adjudications not be reported to them. Others want them to be reported but have difficulty deciding how to consider them in the employment decision. Since deferred adjudications, by definition, are not considered to be convictions some element of care and common sense must be used when considering them. Here are some things you may want to consider with regard to D/A dispositions:

1) A policy that states deferred adjudications shall not be considered in the employment decision may be short sighted and may place your customers and employees at risk. Consider amending your employment application to request information regarding deferred adjudications as well as convictions. For example: “Have you ever been subject to deferred adjudication, indictment, conviction, probation or fined for a crime other than a traffic offense?” (Employment Application – Texas Attorney General’s Office) Or, “Have you ever been convicted of, pled guilty or no contest to a felony or a misdemeanor crime, regardless of whether sentence was imposed by the court.” (Employment Application – High Technology Manufacturing Firm). Remember, applicants are correct in responding “no” to the conviction question unless the question specifically requests D/A information.

2) Deferred adjudications once were reserved for first offenders. This is no longer true. We have seen multiple deferred adjudications granted to repeat offenders. Often, in cases where each crime was committed in a different venue. Caution should be exercised when considering a single deferred adjudication, especially one for which the charge does not directly relate to the position applied for. However, multiple deferred adjudications for the same crime may indicate a pattern of behavior that could place your company at risk. Moreover, an applicant who receives D/A for one crime while still on D/A for a previous crime might be considered differently than an applicant with a single D/A.

3) A D/A probation that was not terminated satisfactorily generally results in a conviction being entered by the court. These should be considered the same as a straight conviction.

4) Certain organizations, particularly those entrusted with the safety of vulnerable persons such as children or the elderly, are legally justified in giving deferred adjudications close scrutiny. In fact, even a single deferred adjudication for a serious crime may warrant denial of employment. Some of those crimes are: Indecency with a child; rape; murder; sexual assault; injury to a child, elderly, or disabled person; kidnapping; sale, use or distribution of controlled substances or other dangerous drugs; robbery; and assault with serious bodily injury. Other crimes may apply depending on the employer and the overall mission of the employer.

Some states are considering laws that will allow a person who has received a deferred adjudication to apply to have their record expunged or to have access restricted. Requiring the person to apply for this privilege allows judges to consider each request on its own merits. Texas is one state that has moved in that direction. Employers who use database searches to obtain their criminal information run the additional risk of receiving D/A information that has been restricted or expunged since the database was last updated. Employers are advised to avoid this liability by using real court record searches. Last, the use of common sense may be the best advice when considering deferred adjudication in the employment decision. By making sure the charge is job related, by paying attention to patterns of behavior, and carefully assessing charges for violent offenses, employers can make proper employment decisions while keeping their workplaces safe for all.

Asset Control does not provide legal advice and nothing included in this article should be considered as such. As always, we advise that you ask your legal department or outside attorney to assist with the development of policy and in other sensitive Human Resources matters. Know the FEP laws in each state in which you do business.

Thursday, December 01, 2005

Does your employment screening policy place your employees and customers at risk?

Wonders never cease to amaze, particularly in my business. Each day I look at records of serious violent acts, and shake my head in disbelief. Currently, I'm shaking my head over a felony rape charge reduced, by plea bargain, to a misdemeanor assault count. Yesterday, it was an aggravated robbery charge reduced to a misdemeanor theft count. The day before, a felony stalking charge, plea bargained to a disorderly conduct charge.

In each case, serious violent crimes reduced to misdemeanors. In each case, based upon the client's internal company policy, not reportable to them. The reduction of serious violent crimes, by plea bargain, to lesser misdemeanor offenses has become commonplace in our court system. In fact, as police, courts, and judges communicate less and less with one another, we see applicants with histories of violent crimes charged as felonies and adjudicated as misdemeanors in an effort to move cases through the judicial system. Last night's Law & Order television show dealt with a violent sex offender who stayed out of jail because his many violent offenses were reduced to misdemeanors. Avoiding incarceration, he went on to commit the most heinous of crimes. As a professional, I am here to tell you that this example was a clear depiction of what comes accross my desk every day.

What does this mean to the employer? The answer is everything, if your employment screening policy is working against you and the safety of your workplace! If your employment application asks about felony convictions only, you may be placing your company at risk. If your employment policy allows you to consider felony convictions only, your policy may be placing your employees and customers at risk.

Here's what we recommend:

1) Review your hiring practices and policy against the current reality - a majority of violent offenders initially charged as felons are adjudicated at the misdemeanor level. Believe me, you want to see misdemeanor offenses too. What you don't know can hurt you

2) Work with your background screening agency to understand legal terms like deferred adjudication, probation, deferred sentence, probation discharge, probation revocation, nolle pross, nolo contendre, etc. Understand which pleas and dispositions you can consider and which ones you must take extra care when considering.

3) If you don't have a background screening policy, create one. Your background screening agency and your legal delartment can work together to develop one that will protect you and your company.

4) Have a thorough understanding of the Fair Credit Reporting Act (FCRA) and other state laws that may guide how you implement your policy. Every day I hear "I thought the law only allowed my to ask about felony convictions". Or, "the FCRA says I can't ask about convictions over 7 years old". Neither statement is true! Remember, some states, like California, may restrict what employment screening data you see. But, such restrictions are the exception not the rule. Unless your business is primarily California based, we advise against basing your overall screening policy on this state's model.

Asset Control wishes you all a happy and safe Holiday season!