The Minnesota Department of Commerce continued its efforts this week to keep convicted felons out of the pocketbooks of Minnesota consumers. Commissioner Mike Rothman took action against 49 debt collection agencies nationwide that are owned and operated by NCO Financial Systems, Inc. According to the Department’s investigation, the company allegedly failed to properly screen employees and employed known felons. In a consent order signed Thursday, Commissioner Rothman ordered NCO Financial Systems, Inc. to overhaul its employee screening process and pay $250,000 in civil penalties to the State of Minnesota.
As if We Need Another Reason for Employment Background Checks…
The recent killing of a North Carolina store manager and her unborn child shines a bright light on the risks employers take when they fail to conduct a proper employment background check.
The alleged story goes like this: Around two months after being released from a two-year prison stay for felony robbery and breaking and entering, 22-year-old Mark Anthony Cox robs the store where he was recently hired to work and kills the store’s pregnant 25-year-old manager. The owners of the store did not require a background check on Cox that would have revealed his prior felony. What’s more, in North Carolina businesses aren’t allowed to hire felons convicted in the last three years for jobs that involve serving alcohol, as this job allegedly did.
I’ve been getting a few inquiries about a statement that was made during the PIHA Legal Update wherein it might be misinterpreted that it is illegal to use misdemeanor records in California in the hiring process. In fact, the law is clear:
432.7. (a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program.
As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
1786.18. (a) Except as authorized under subdivision
(b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:
(1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years.
(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.
(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.
(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.
(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.
(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.
(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
Q: Background checks will only reflect history back 7-years, correct? Is that regardless of the “crime” even if there are felonies on the record, or are there exceptions?
A: Well, there are a number of screening companies that ignore California Law , following only the Federal law which has lifted the time requirement. California is special in that it maintains a 7-year reporting limit on convictions, and a violation of that rule is a biggie!
One other thing that is nebulous, as a practice in all states is understanding the “full adjudication” component of reporting criminal convictions.
Generally, it is mistakenly believed that the date of the conviction is what anchors the reporting date limit, but that is not correct. Actually, what is permissible is the reporting of convictions that antedate “full adjudication” by the 7 year period, not necessarily 7 years from the date of conviction.
That means, simply that if you are convicted of a crime on January 1, 1990, say for murder, and you serve 20 years, being released from prison, on January 1, 2010 that conviction is reportable since you were released from the court’s jurisdiction within the 7 year statutory reporting period.
Now, that can even extend further, if there is parole involved the way we at APSCREEN interpret the law is that a conviction is reportable 7 years from the date that the convicted party is released form court custody, meaning not only have they been released form prison, but have completed all court requirements including parole, and in many cases not until restitution is complete, IF the restitution is part of the release conditions from the court.
There are pitfalls to that, as well, since many screening firms mistakenly believe that the reporting period can actually be until 7 years from the date that the convicted person’s civil rights are restored, but that is also incorrect, as civil rights restoration is not automatic, it is a function of the person requesting that the rights be restored, and is not tied to any jurisdictional custody dates, or to the full adjudication date, or the date that the person was completely and unconditionally released from the courts custody and jurisdiction.
Trucking company’s negligent hiring practices lead to fatal collision
The plaintiffs alleged that the driver of a tractor-trailer was negligent and reckless for driving while fatigued and crossing the centerline. Suit against his employer alleged negligent hiring, among other claims. The parties reached a confidential settlement after the jury awarded $7 million. Reagan v. Dunaway Timber Co.
Roger Reagan, 42, was driving a tractor-trailer eastbound on a two-lane road when Morgan Quisenberry, driving a tractor-trailer for Dunaway Timber Co., approached from the westbound lane. As Quisenberry rounded a curve, his truck crossed the centerline and clipped an SUV. The truck then crossed completely over into the eastbound lane, struck a car, and veered head on into Reagan’s truck, which caught fire.
Reagan was trapped inside the truck cab for several minutes. He was able to pull himself out, but fell beneath the truck and was trapped there for about 15 minutes before being freed. He suffered significant internal injuries, a severe crush injury to his left leg, and second-degree burns. He died about an hour later of cardiac arrest brought on by the other injuries. Reagan is survived by his wife and two children, who were both minors at the time of his death. He had earned about $43,000 annually.