Criminal Histories and Background Checks  …A Tough Road

by Colorado Criminal Defense Lawyer – Attorney at Law – H. Michael Steinberg 

Criminal Histories and Background Checks and Colorado’s criminal history laws confuse many people. In the middle of a criminal case – if the person is unrepresented by a lawyer – they often take the easy way out and accept a plea bargain that results in a criminal conviction with long term devastating results to their lives and to their careers.  This page looks at criminal histories and consequent employment issues.

Today – whether you receive a job offer or are seeking a promotion for a job very often depends on the criminal history information contained in the all too common “background check.”

Some jobs even require screening under federal or state laws. There has been a dramatic increase in the number of employment background checks conducted… that is a fact.

Employers are cautious and – at the same time –  applicants and employees fear that employers can dig into the past in ways that have nothing to do with the job they are applying for..

When And Why Does A Potential Employer Conduct a Background Check?

Employers check potential and current workers for several reasons. The things an employer wants to know about you can vary with the kinds of jobs you might seek. Here are a few of the reasons for employment screening.

Negligent hiring lawsuits are on the rise. If an employee’s actions hurt someone, the employer may be liable. The threat of liability gives employers reason to be cautious in checking an applicant’s past. A bad decision can wreak havoc on a company’s budget and reputation as well as ruin the career of the hiring official. Employers no longer feel secure in relying on their instinct as a basis to hire.

Child abuse and child abductions in the news in recent years have resulted in new laws in almost every state that require criminal background checks for anyone who works with children. The move to protect children through criminal background checks now includes volunteers who serve as coaches for youth sports activities and scout troop leaders.

Terrorist acts of September 11, 2001, have resulted in heightened security and identity-verification strategies by employers. Potential job candidates and long-time employees alike are also being examined with a new eye following September 11, 2001. Corporate executives, officers, and directors now face a degree of scrutiny in both professional and private life unknown before the Enron debacle and other corporate scandals of 2002.

Federal and state laws require that background checks be conducted for certain jobs. For example, most states require criminal background checks for anyone who works with children, the elderly, or disabled. The federal National Child Protection Act authorizes state officials to access the FBI’s National Crime Information Center (NCIC) database for some positions. Many state and federal government jobs require a background check, and depending on the kind of job, may require an extensive investigation for a security clearance.

The availability of computer databases containing millions of records of personal data. As the cost of searching these sources drops, employers are finding it more feasible to conduct background checks.

Criminal Histories and Background Checks – Does a criminal record mean I will never get a job?

No. The U.S. Equal Employment Opportunity Commission (EEOC) has said that use of criminal history may sometimes violate Title VII of the Civil Rights Act of 1964. This can happen, the EEOC says, when employers treat criminal history differently for different applicants or employees.

On April 25, 2012, the EEOC issued extensive guidelines for employers in considering the criminal history of a job applicant or employee. The EEOC cites the most important considerations as: 

(1) the nature and gravity of the offense

(2) the time that has lapsed since the offense

and

(3) the nature of the job.

The EEOC guidelines provide employers with examples of best business practices.

The EEOC’s guidelines, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, can be found at: www.eeoc.gov/laws/guidance/arrest_conviction.cfm

What Is Included in a Background Check?

Background reports can range from a verification of an applicant’s Social Security number to a detailed account of the potential employee’s history and acquaintances. There is even some evidence that employers are now searching popular social networking Web sites such as MySpace and Facebook for the profiles of applicants.

An October 2007 survey from Vault.com found that 44% of employers use social networking sites to obtain information about job applicants while 39% have searched such sites for information about current employees. Read about “digital dirt” and the jobseeking process at www.abilitiesenhanced.com/digital-dirt.pdf.

Here are some of the pieces of information that might be included in a background check. Note that many of these sources are public records created by government agencies.

• Driving records

• Vehicle registration

• Credit records

• Criminal records

• Social Security no.

• Education records

• Court records

• Workers’ compensation

• Bankruptcy

• Character references

• Neighbor interviews

• Medical records

• Property ownership

• Military records

• State licensing records

• Drug test records

• Past employers

• Personal references

• Incarceration records

• Sex offender lists

Information to be included in a background check will almost certainly depend to some extent on the employer and the job involved. For many jobs, a state or federal law requires the employer to conduct a background check. Jobs that involve work with children, the elderly or people with disabilities are examples of jobs that will almost certainly require a criminal background check.

What Cannot Be in a Background Check Report?

The Federal Fair Credit Reporting Act (FCRA) sets national standards for employment screening. However, the law only applies to background checks performed by an outside company, called a “consumer reporting agency” under the FCRA.

The law does not apply in situations where the employer conducts background checks in house.

The most recent change to the FCRA made criminal convictions reportable indefinitely.

(Some states – such as California still follow the seven-year rule. – Colorado does not)

Other laws that should be considered

Arrest information – Although arrest record information is public record.

Criminal history – Criminal histories or “rap sheets” compiled by law enforcement agencies are not public record.

With the advent of computerized court records and arrest information, however, there are private companies that compile virtual “rap sheets.” In Colorado – the largest is www.cocourts.com

Information offered to the public by web-based information brokers is not always accurate or up to date. The release of incorrect information may violate federal law… when reported as such.

Although these laws should prevent an employer from considering certain information, there is no realistic way for the applicant to determine whether such information will be revealed in a background check.

This is particularly true for investigations conducted online where the information obtained from web-based information brokers might not be verified for accuracy or completeness.

The Unfairness of Blind Background Checks – Partial Records

If you were arrested but never convicted, a data search might reveal the arrest, but the investigator who compiled the information might not look further into the public records to determine that you were acquitted or the charges were dropped.

Reputable employment screening companies should always verify negative information obtained from data base searches against the actual public records filed at the courthouse.

Can an employment application ask about things that should not be reported?

The FCRA does not prohibit an employer from asking questions in an employment application.  

For example, an employment application might ask if you have “ever” been arrested. The FCRA says a consumer reporting agency cannot report an arrest that from date of entry was more than seven years ago. It does not say the employer cannot ask the question.

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense and the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

What Do I Do? Aren’t some of my personal records confidential?

How to handle such questions on an employment application is of real concern to many people, especially those concerned with a youthful mistake from the distant past.

The following types of information may be useful for an employer to make a hiring decision.

• Education records – Under both federal and California law, transcripts, recommendations, discipline records, and financial information are confidential. A school should not release student records without the authorization of the adult-age student or parent. However, a school may release “directory information,” which can include name, address, dates of attendance, degrees earned, and activities, unless the student has given written notice otherwise.

• Military service records -Under the federal Privacy Act, service records are confidential and can only be released under limited circumstances. Inquiries not authorized by the subject of the records must be made under the Freedom of Information Act. Even without the applicant’s consent, the military may release name, rank, salary, duty assignments, awards, and duty status.

• Medical records – Medical records are confidential. There are only a few instances when a medical record can be released without your knowledge or authorization. The FCRA also requires your specific permission for the release of medical records. If employers require physical examinations after they make a job offer, they will have access to the results.

Who Conducts Background Checks?

There are many companies that specialize in employment screening. It is outside the purpose of this fact sheet to identify background checking companies by name. The most important thing to keep in mind is that companies conducting background checks fall into several broad categories.

• This can range from individuals commonly known as:
• private investigators
• to companies that do nothing but employment screening,
• to online data brokers.

The National Association of Professional Background Screeners provides a directory of its members on its Web site:

http://www.napbs.com.

Many corporations that employ large numbers of people have an established relationship with a third-party background checking company or may even use an affiliated company for their employment screening. Other background checking companies may work on a less formal basis with employers. Some screening companies operate in specific areas of the country while others, including some private investigators, conduct background screening nationwide.

With the information age upon us, it is easy for employers to gather background information themselves. Much of it is computerized, allowing employers to log on to public records and commercial databases directly through dial-up networks or via the Internet. Finding one of these online companies is as easy as using an Internet search engine to find web sites that specialize in “background checks.”

The Fair Credit Reporting Act and Background Checks

The Federal Fair Credit Reporting Act (15 USC §1681 et seq.) does not require employers to conduct employment background checks. But the law sets a national standard that employers must follow in employment screening.

What If There is an error in my background check report?

They have me mixed up with another person with a similar name and a criminal record. What should I do?

First, talk to the employer. Explain the report’s errors, and tell the employer you intend to file a dispute with the employment screening company. Although the FCRA does not require the employer to hold the job for you, a sympathetic employer may be willing to give you a chance to correct any errors.

Next, file a dispute with the employment screening company that made the error. You may first call the company and tell them about the error. Then follow-up with a written dispute letter pointing out the errors in the report. Send your letter certified mail, return receipt requested.

Along with your letter you may submit information that verifies your side of the story. For example, you may have a common name. The background check report may show a criminal record for someone with your first and last name but with a different middle initial.

The process for disputing errors in an employment report is the same as the process for disputing errors in your credit report.

What happens after I file a dispute with the employment screening company?

After you file your dispute, the screening company has 30 days to investigate. If, during that 30 day period, you file additional information, the investigation may be extended by another 15 days. So, 45 days is the maximum time allowed for considering your dispute.

If information in your background screening report cannot be verified, it must be deleted. You must receive written notice of the results of the investigation not later than five business days after the investigation is completed. You can ask the screening company to send the revised report to anyone who has received an employment report about you within the last two years.

You also have the right to receive another free copy of your report within 60 days.

Can a background check report include a case that was expunged?

According to the FTC, it should not. In August, 2012, the agency filed a lawsuit against one background screening company for, among other things, reporting criminal records that had been expunged. In addition, the FTC charged the company with failing to follow other FCRA provisions, including failure to provide consumers with a copy of their background check report.

For more on the FTC’s case charging HireRight with violations of the FCRA, go to: http://ftc.gov/opa/2012/08/hireright.shtm

Another great source of information in this area is: “Identity Theft: The Growing Problem of Wrongful Criminal Records,”  (http://www.privacyrights.org/ar/wcr.htm.)

Check The Court records Yourself

If you have an arrest record or have been involved in court cases, go to the county where this took place and inspect the files. Make sure the information is correct and up to date.

Reporting agencies often report felony convictions when the consumer truly believes the crime was reduced to a misdemeanor, or that it was reported as a misdemeanor conviction when the consumer thought the charge was reduced to an infraction.

Court records are not always updated correctly. 

For example, a signature that was needed to reduce the charges might not have been obtained or recorded by the court. Don’t rely on what someone else may have told you. If you think the conviction was expunged or dismissed, get a certified copy of your report from the court.

For an explanation of expungement, see: http://www.epic.org/privacy/expungement.

It is always a good idea to keep certified copies of any papers filed in court, especially the judge’s order or other document that disposes of the case. If you later learn the court record is inaccurate but do not have a certified copy, first contact the clerk of court where the matter was heard. If you cannot correct the problem at this level, it may be necessary to petition the court yourself or hire an attorney to act on your behalf.

• Check DMV records – Request a copy of your driving record from the Department of Motor Vehicles, especially if you are applying for a job that involves driving.

Many employers ask on their application if you were ever convicted of a crime. Or they might word the question to ask whether you have ever been convicted of a felony or misdemeanor.

Typically, the application says you do not have to divulge a case that was expunged or dismissed, or that was a minor traffic violation.

Don’t be confused. A DUI (driving under the influence) or DWI (driving while intoxicated) conviction is not considered a minor traffic infraction. Applicants with a DUI or DWI who have not checked “yes” on a job application may be denied employment for falsifying the form — even when the incident occurred only once or happened many years before. The employer perceives this as dishonesty, even though the applicant might only have been confused by the question.

Do your own background check

If you want to see what an employer’s background check might uncover, hire a company that specializes in such reports to conduct one for you. That way, you can discover if the data bases of information vendors contain erroneous or misleading information. (Google your state and “Investigators.”) Or, you can use one of the many online search services to find out what an employer would learn if conducting a background check in this way.

For a great article in this area – go to: “Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce,” by Les Rosen, Esq.

http://www.privacyrights.org/ar/rosencrim.htm

How To Obtain Your FBI Identification Record …(often referred to as a criminal history record or a “rap sheet)”

A rap sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. The process of responding to an Identification Record request is generally known as a criminal background check.

If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known to the FBI.

All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports, and other information submitted by agencies having criminal justice responsibilities.

The U.S. Department of Justice Order 556-73 establishes rules and regulations for the subject of an FBI Identification Record to obtain a copy of his or her own record for review. The FBI’s Criminal Justice Information Services (CJIS) Division processes these requests.

Who May Request a Copy of a Record (or Proof That a Record Does Not Exist)

Only you can request a copy of your own Identification Record.

Individuals typically make this request for personal review, to challenge the information on record, to satisfy a requirement for adopting a child in the U.S. or internationally, or to satisfy a requirement to live, work, or travel in a foreign country (i.e., police certificate, letter of good conduct, criminal history background, etc.).

Background Checks for Employment or Licensing

If you are requesting a background check for employment or licensing within the U.S., you may be required by state statute or federal law to submit your request through your state identification bureau, the requesting federal agency, or another authorized channeling agency.

You should contact the agency requiring the background check or the appropriate state identification bureau (or state police) for the correct procedures to follow for obtaining an FBI fingerprint background check for employment or licensing purposes.

How to Request a Copy of Your Criminal Record

The FBI offers two methods for requesting your FBI Identification Record or proof that a record does not exist.

Option 1: Submit your request directly to the FBI.

Option 2: Submit to an FBI-approved “Channeler,” which is a private business that has contracted with the FBI to receive the fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the FBI CJIS Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual. Contact each Channeler for processing times.

An FBI-approved Channeler cannot authenticate (apostille) fingerprint search results. A request for your FBI Identification Record or proof that a record does not exist must be submitted directly to the FBI if an authentication (apostille) is needed.

What Happens Next

If we find no record, you will receive a “no record” response. If you do have a criminal history record on file, you will receive your Identification Record or “rap sheet.”

Please call our law firm if you have questions about ..

Criminal Histories and Background Checks

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 40 years (as of 2012). For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277

If you have questions about Criminal Histories and Background Checks in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will also provide quality legal representation to those charged in Colorado adult and juvenile criminal matters.

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters as regards Criminal Histories and Background Checks.