Background Checks: Are You Doing it Right?

1

Presented by:

• Leslie Robert Stellman • PESSIN KATZ LAW, P.A. • Towson, Bel Air & Columbia, Maryland • [email protected] 2

Background Checks: • 1. • 2.

They are required by certain Maryland laws. They may reduce or eliminate the risk of liability for:

• A. • B. • C.

Negligent Hiring Negligent Retention Negligent Supervision

3

Relevant Maryland Laws Governing Background Checks • Family Law Article, Sections 5-560 and 5-561: • “An employee and [public school] employer . . . shall apply for a national and State criminal history records check at any designated law enforcement office in this State.” • “ “An employer . . . may require a volunteer . . . who works with children to obtain a criminal history records check . . . “ • Either employer or employee may be required to pay the fee for such checks.

• COMAR 13A.12.01.02: Prohibiting the hiring of individuals with a record of “crimes against children” and “crimes of violence.”

• 4

Which Crimes Prevent a New Hire from Working for You? • • • • • • • • • •

The HCPSS requires all applicants to disclose and document criminal background information through the completion of: The HCPSS online employment application The Criminal Background Investigation Form (Family Law Article, 5-560 et.seq) The Howard County Department of Social Services Release of Information Form Failure to disclose information is grounds for immediate dismissal. The HCPSS will complete background checks for all prospective employees through the following: Maryland Judiciary Case Search National and State Sex Offender Registry The Howard County Department of Social Services child abuse and/or neglect background check State and FBI Fingerprint criminal background check If during the employment application process any information regarding criminal, child abuse or neglect issues is disclosed, discovered, or found to be inconsistent, the application evaluation process will stop and the information will be investigated.

5

An example of a background check policy for new hires • • • • • • • • • •

The HCPSS requires all applicants to disclose and document criminal background information through the completion of: The HCPSS online employment application The Criminal Background Investigation Form (Family Law Article, 5-560 et.seq) The Howard County Department of Social Services Release of Information Form Failure to disclose information is grounds for immediate dismissal. The HCPSS will complete background checks for all prospective employees through the following: Maryland Judiciary Case Search National and State Sex Offender Registry The Howard County Department of Social Services child abuse and/or neglect background check State and FBI Fingerprint criminal background check If during the employment application process any information regarding criminal, child abuse or neglect issues is disclosed, discovered, or found to be inconsistent, the application evaluation process will stop and the information will be investigated.

6

COMAR 13A.01.03(D) Renders Ineligible for Certification: • “An individual who has been convicted of, pleads guilty or nolo contendere with respect to, or receives probation before judgment with respect to, a crime against children or a crime of violence, or an individual whose certificate is suspended, revoked, or voluntarily surrendered [in Maryland] or in another state for a cause comparable to one for which suspension or revocation is required in Maryland . . . “

7

What is a “Crime against Children?” • Any crime defined in Criminal Law Article Section 3-601, which includes: • “[P]hysical injury sustained by a minor as a result of cruel or inhumane treatment or as a result of a malicious act under circumstances that indicate that the minor's health or welfare is harmed or threatened by the treatment or act.” 8

What is a “Crime of Violence?” •

Any crime defined in Criminal Law Article Section 14-401, which includes:

• • • • • • • • •

(1) (2) (3) (4) (5) (6) (7) (8) (9)

abduction; arson in the first degree; kidnapping; manslaughter, except involuntary manslaughter; mayhem; maiming, as previously proscribed under former Article 27, §§ 385 and 386 of the Code; murder; rape; robbery under § 3–402 or § 3–403 of this article;

9

There’s more! • • • • •

(10) carjacking; (11) armed carjacking; (12) sexual offense in the first degree; (13) sexual offense in the second degree; (14) use of a handgun in the commission of a felony or other crime of violence; • (15) child abuse in the first degree under § 3–601 of this article; 10

And now the really serious crimes that disqualify applicants from public schools • • • • • •

sexual abuse of a minor under § 3–602 of this article if: (i) the victim is under the age of 13 years and the offender is an adult at the time of the offense; and (ii) the offense involved: 1. vaginal intercourse, as defined in § 3–301 of this article; 2. a sexual act, as defined in § 3–301 of this article; 3. an act in which a part of the offender’s body penetrates, however slightly, into the victim’s genital opening or anus; or • 4. the intentional touching, not through the clothing, of the victim’s or the offender’s genital, anal, or other intimate area for sexual arousal, gratification, or abuse; • (17) an attempt to commit any of the crimes described in items (1) through (16) of this subsection;

11

And finally . . . • • • • • • •

(18) continuing course of conduct with a child under § 3–315; (19) assault in the first degree; (20) assault with intent to murder; (21) assault with intent to rape; (22) assault with intent to rob; (23) assault with intent to commit a sexual offense in the first degree; and (24) assault with intent to commit a sexual offense in the second degree.

12

Then there is S.B. 508, Part I • A LOCAL SCHOOL SYSTEM CONTRACT SHALL PROVIDE THAT A 2 CONTRACTOR OR SUBCONTRACTOR FOR THE LOCAL SCHOOL SYSTEM MAY NOT KNOWINGLY ASSIGN AN EMPLOYEE TO WORK ON SCHOOL PREMISES WITH DIRECT, UNSUPERVISED, AND UNCONTROLLED ACCESS TO CHILDREN, IF THE EMPLOYEE HAS BEEN CONVICTED OF A CRIME IDENTIFIED UNDER SUBSECTION (A) OF THIS SECTION. 13

S.B. 508, Part II (Section 6-113(b) of the Education Article) • A CONTRACTOR OR SUBCONTRACTOR SHALL REQUIRE AN EMPLOYEE THAT WILL HAVE DIRECT, UNSUPERVISED, AND UNCONTROLLED ACCESS TO CHILDREN IN A FACILITY LISTED IN SUBSECTION (B) OF THIS SECTION TO OBTAIN A CRIMINAL HISTORY RECORDS CHECK UNDER THIS PART VI OF THIS SUBTITLE.

14

Model language to include in all vendor contracts in light of S.B. 508 •

SEX OFFENDER REQUIREMENT

• • VENDOR affirms that it will not knowingly employ an individual to work at a school if the individual is a Registered Sexual Offender, pursuant to section 11-722 (C) of the Criminal Procedure Article of the Annotate Code of Maryland. A firm or person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both.

• • Contractor shall diligently ensure compliance with the criminal background requirement for employees assigned to the work under this Agreement. Background investigations include a criminal records history check through the employee’s State criminal records repository via submission of the employee’s ten-print fingerprint card. The Board of Education reserves the right to require verification of the criminal records check and State reply upon request. Results must be returned to the employer by the State agency and must be delivered to the Board of Education within 72 hours of receipt by Contractor or within 72 hours of request.

15

What does S.B. 508 (Ed. Art. 6-113) Mean? • Contractors and subcontractors that perform construction work on school grounds are under an affirmative obligation to have criminal background checks performed on their employees who will be assigned to work on the project if the employees will have direct, unsupervised and uncontrolled access to children during the course of the work. While the new provision does not define the term “direct, unsupervised and uncontrolled access to children”, if there is a risk that the employee may have access to children in the identified facilities, the best course for the contractor and subcontractor is to confirm that the background check is conducted to ensure that the company is in compliance with Section 5-561 of the Family Law Article. 16

Newly enacted Section Ed. Art. Section 6113 thus now reads: • “A county board may not knowingly hire or retain any individual who has been convicted of a crime involving: (1)An offense under Sections 3-307 or 3-308 of the Criminal Law Article or an offense under the laws of another state that would constitute a violation of [these laws]. (2)Child sexual abuse under Section 3-602 of the Criminal Law Article [or similar laws in other states]. • (3) A crime of violence as defined in Section 14-101 of the Criminal Law Art. 17

When you slip up in background checks, this is the result (from a 2005 AACPS audit report) • “To assess these audit objectives we performed various audit tests. We selected and tested a sample of current employees to determine that background checks were performed and documentation to substantiate the background checks existed in the employee’s personnel file. Based on our testing, we concluded that appropriate background checks were not always performed and documentation maintained in the file was inadequate. Additionally, we reviewed personnel files to assess the existence of other documents and information that are required by Board Policy, Administrative Regulations or state laws, and again concluded that documentation contained in the files was inadequate.” 18

Conducting Other Background Checks: Risks and Rewards

19

The EEOC Has Had Plenty to Say About Background Checks • Any time you use an applicant's or employee's background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC). 20

The EEOC’s Concern about Using Arrests to Disqualify Applicants:

21

“Arrests versus Convictions” • The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. Even if an applicant is charged and subsequently prosecuted, he is presumed innocent unless proven guilty. • An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. • Another reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). The DOJ reported that many arrest records in the FBI's III database and state criminal record repositories are not associated with final dispositions. Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.105

22

More of the EEOC’s Concerns about Arrests as Job Disqualifiers: • Federal law does not prohibit employers from asking about your criminal history. But, federal EEO laws do prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII). 1. Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion). 2. Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if: 1. They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND 2. They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

23

EEOC’s 2012 Criminal History Guidance • The EEOC's April 2012 Criminal History Guidance outlines in detail the EEOC's concerns regarding use of criminal history in the hiring process and factors that employers are expected to consider prior to excluding any applicant based on criminal history. The EEOC stresses that any reliance on criminal history records that have an adverse impact on protected groups must be job-related and consistent with business necessity. In relying on criminal history in making employment decisions, the EEOC's Guidance advises employers to consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought. The Guidance further underscores the importance of an "individualized assessment" prior to excluding an applicant based on a criminal record, but also refers to permitting exclusions involving specific criminal conduct (i.e. "targeted exclusions") that are "narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."

24

Other Criminal Background Issues (“Ban the Box”, the latest trend) • While one cannot ask about arrests, an employee is free to ask about: (1) one’s criminal convictions; and (2) one’s military status (i.e., honorably discharged). • There is a rising trend of “ban the box” laws (including in Baltimore City), that would prohibit employers from inquiring about criminal history or even incarceration. • Before a condition offer is made, a covered private (not schools) employer may not require any applicant to disclose or reveal whether he or she has a criminal record or otherwise had criminal accusations brought.

25

Cearfoss v. Baltimore County Board of Education: A contractor’s mistake cost the Board • Baltimore County Schools utilized an outside contractor to employ and assign one-on-one aides to special education students at various schools. • Although the contract included a commitment to conduct background checks, the contractor failed to do them, and lied about compliance. • A felon assigned as a 1-on-1 aide to a 16 year old asked the student to help him get a gun; the student stole it from his grandfather’s home and delivered it to the aide, who was arrested along with the student for felony weapons possession. • The family sued the Board, alleging that the lack of a background check resulted in their child being arrested, charged, and responsible for defense costs to beat the rap. 26

The Freeman case (2015): • Last year the U.S. Court of Appeals for the Fourth Circuit dismissed claims of discrimination filed by the EEOC in a lawsuit predicated upon background and credit check practices by a company that puts together conventions. • Background checks of applicants and employees were initiated after various work-related concerns that had arisen, including embezzlement, theft, drug use, and workplace violence. Based on the employer's policy, different types of background checks were ordered depending on the nature of the job sought. For some positions, the background check included only a criminal history investigation and Social Security number verification. For "credit sensitive" positions, the check also included a credit history review. Lastly, for positions such as general managers and department heads, the company added an education and certification verification. • The company inquired about convictions on its employment application and provided space on the application for the applicant to describe the date and circumstances surrounding any conviction. It specified that the applicant should "[g]ive all the facts, so that a fair decision can be made." The application also stated that a conviction would not automatically bar the applicant from being offered a job. The company limited its consideration of convictions to those that occurred within seven years of the application date and did not consider arrest records. 27

Freeman, continued • The company then used a multi-step evaluation process in considering criminal records and determining whether an applicant was qualified to work for the company. First, it considered whether the applicant was honest about his or her criminal convictions on the application and automatically disqualified those who made materially dishonest statements. Next, the company examined outstanding arrest warrants—applicants with pending warrants were given the opportunity to resolve the matter and have the warrant withdrawn. Last, the company considered criminal convictions for which the applicant was committed or released from confinement within the past seven years, and evaluated whether the conduct underlying a conviction made the applicant unsuitable for employment. The company generally disqualified applicants with convictions involving violence, destruction of private property, sexual misconduct, felony drug convictions, or job-related misdemeanors.

28

Freeman – the punch line: • Judge Titus of the U.S. District Court in Greenbelt, whose decision was upheld by the Fourth Circuit Court of Appeals, dismissed the lawsuit based upon the faulty methodology used by the EEOC’s expert witness, who failed to look at all of the relevant data and who used a flawed approach to analyzing the evidence provided by the employer. • However, given the right analysis this case could have resulted in a significant loss to the employer based upon evidence that showed that a dispropor-tionate number of minority applicants were excluded 29 from consideration.

Credit Checks and the FCRA 1. Under the Fair Credit Reporting Act (“FCRA”), employers are entitled to request credit information and other investigative information. But before getting the report, the employer must tell an applicant that they might use the information to make a decision related to employment, and must ask for written permission. This law is enforced by the FTC. 2. If the employer thinks they might not hire, keep, or promote an employee because of something in the report, they must give the applicant or employee a copy of the report and a Summary of Rights that explains how to contact the company that provided the report. That’s because background reports sometimes have mistakes. Employees have the right to attempt to correct the report. 30

Other EEOC cases involving background checks: • EEOC v. Dollar General (E.D. Ill., filed in 2013): accusing the retail chain of screening out a disproportionate number of minority applicants through background checks based upon criteria that are not “job related” or “based upon job necessity.” Some of the convictions for which applicants were disqualified included: “flagrant non-support;” “possession of drug paraphernalia;” “reckless driving;” “failure to file income tax return;” and a 6 year old “possession of a Controlled Substance.” 31

Another EEOC Lawsuit: • EEOC v. BMW (Filed in federal district court in South Carolina in June 2013): employer hired a contractor to conduct background checks. • The employer made no distinction between felony and misdemeanor convictions. • Applicants were excluded for convictions based upon “theft, dishonesty, and moral turpitude.” • One employee was fired after 17 years, based upon the discovery of a 1990 simple assault conviction that drew a $137 fine. 32

What if the Report You Get is Wrong? • In Milne v. Sears Holdings Corp., a California federal judge last month refused to dismiss claims against Sears under the Fair Credit Reporting Act (FCRA), finding that a plaintiff, who had his job offer revoked by Sears based on an allegedly erroneous background report, plausibly alleged that Sears violated the FCRA by not providing the required pre-adverse action notice. Indeed, it did not provide his report until three days after notifying him that the offer was revoked. 33

In 2013, K-Mart paid $3 million to settle a class action due to background check violations!

34

Other Background Check Issues: Lie Detectors • The federal Employee Polygraph Protection Act of

•

1988 prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint or for participating in a proceeding under the Act.

35

Maryland’s Polygraph Law

This statement must be attached to every employment application: • “UNDER MARYLAND LAW, AN EMPLOYER MAY NOT REQUIRE OR DEMAND, AS A CONDITION OF EMPLOYMENT, PROSPECTIVE EMPLOYMENT, OR CONTINUED EMPLOY-MENT, THAT AN INDIVIDUAL SUBMIT TO OR TAKE A LIE DETECTOR OR SIMILAR TEST. AN EMPLOYER WHO VIOLATES THIS LAW IS GUILTY OF A MISDEMEANOR AND SUBJECT TO A FINE NOT EXCEEDING $100.” 36

Using Facebook and other Social Media

37

Social Media is OK, but . . . • Do not attempt to bypass a person's privacy settings in collecting social media information—for example, by impersonating a "friend" or creating a profile with the same city and/or alma mater of an applicant, in an attempt to see information restricted by geographical or university network. • Do not forget to keep records of information reviewed and used in any employment decision, and be sure that any information learned from social media sites in the employment decision process is used consistently. 38

Here are some more pitfalls of social media as a background checking tool . . . • Do not conduct social media background checks on applicants or employees for any employment purpose without first obtaining their written authorization. • Do not assume that your managers are not using social media to screen applicants or employees, even if your company does not, as a matter of policy, conduct such background checks. Be sure to train your managers regarding the FCRA and its requirements. • Do not make employment decisions based upon an applicant's "off-duty" lawful conduct (such as tobacco or alcohol use), which most states prohibit employers from considering. 39

Here’s what the EEOC will ask you if you use social media to make hiring decisions: • An employer may view more negatively photos of an African American

male, beer in hand, hanging out at a bar with a hip-hop DJ than photos of a white boy, also with beer in hand, hanging out at a rock 'n roll bar with a bunch of other white boys wearing frat T-shirts. • Tell me, was it really the public evidence of drinking that disqualified the individual? • How many current employees would be disqualified from employment if never getting publicly intoxicated -- or even drinking in public -- was a job requirement?

40

Remember the rules of most social media websites, which excludes commercial purposes. • You understand that the Service and the Web site are available for your personal, non-commercial use only. You represent,

• • •

warrant and agree that no materials of any kind submitted through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You further agree not to harvest or collect email addresses or other contact information of Members from the Service or the Web site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Service or the Web site or for any other purpose. You further agree that you may not use the Service or the Web site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Web site. In addition, you agree not to use the Service or the Web site to: impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity; . . . intimidate or harass another; use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Service or the Web site.

41

And what if you learn way too much from your journey through social media?

42

Do you really want to be part of this story? • Teacher sacked for posting picture of herself holding glass of wine and mug

of beer on Facebook • With a pint of beer in one hand and a glass of wine in the other, the worst thing you could accuse Ashley Payne of is mixing her drink. But this happy holiday snap has cost the Georgia high school teacher her job after a parent spotted it on Facebook - and complained. The picture was taken while travelling around Europe in the summer of 2009. A parent out to get the teacher found it while trolling on Facebook and sent it to the superintendent, who promptly fired the teacher for “unbecoming conduct.” A lawsuit ensued, ending only because she was on a one-year contract which had expired.

43

Some Closing Horror Stories about Background Checks: •

School district settles lawsuit for half-million (Aug. 2003) •

Officials don't admit liability in case involving the hiring a man with a past arrest for sexual battery.

• “The Savannah-Chatham County (Georgia) public school system didn't attack the 12 year old girl. But they did hire the man who raped her. And they failed to investigate his history, which included a 1995 arrest in Virginia for sexual battery.”

• The substitute teacher’s original application indicated that he was arrested years before for sexual assault, but that the charges were dropped. Yet during the lawsuit, it was discovered that the portion of the application containing this information was whited out. 44

Amid child-pornography scandal, Pr. George’s schools sued over background checks • (Washington Post, Apr. 16, 2016): “A student’s family contends that

the Prince George’s County school system should not have hired Howard in 2011 because he had been charged with assault and sex offenses in 2002, according to online court records. The 2002 charges were dropped. • “The school system ‘breached their duty by either failing to conduct a criminal background check on Howard, which would have revealed Howard’s past charges of assault and sexual offense or by conducting a criminal background check and hiring him despite the charges,’” the family’s attorney alleged in the legal complaint. The complaint also alleges that the principal at the time failed to immediately disclose the abuse to authorities and the child’s parents.” 45

What does this mean for the future? Q. Do schools deem it sufficient to learn only of convictions per routine fingerprint checks which reveal some (but not necessarily all) criminal information about an applicant or employee? • Q. Does this mean that schools need to go further, and look into arrests and mere charges of sexual misconduct involving minors? Q. Are the risks (and costs) of conducting more in-depth investigations worth the outcome of minimizing the likelihood of hiring sexual predators? 46

Are there any Questions?

47