Critical Ethical Considerations in Employment Screening

Employment Screening Founder

Tom Lawson, Founder APSCREEN

by Thomas C. Lawson, CFE, CII

What if your employment screening company doesn’t first positively identify your candidate?

A case in point: “Edwin Banner” (not real name) of the Des Moines Banners, a comfortable but eternally bored in his plush Manhattan office on the 71st floor decided that the personal exploits intended on his next vacation needed a little more pizazz.

Sixteen years after his second conviction for rape of a minor under the age of 14, and vowing to himself never to ply his craft in such a manner as to get caught again, “Ed” was getting restless and needed more than just the thrill of purposefully attacking defenseless children – he needed recognition

Criminal Psychologists and FBI Profilers call this progression of behavior “escalating.”

Thank goodness Ed got bored with his job because if he hadn’t, his intended ninth victim like the eight before her, would have gone silent, looking up from a watery grave in the deepest one of his hometown’s four nearby lakes.

In addition to Ed’s relentless pursuit of something more tangible with regard to his horrifying sexual appetite, and what led to his ultimate undoing, was Ed’s never-ending quest for bigger money and more grandiose professional recognition, which fortunately, for at least one little girl in a certain Southwestern city, drove Ed to seek employment with my client.

Notwithstanding the client’s ties to a certain national law enforcement agency, as well as a standing offer to quietly vet potential top-level candidates for his buddy. In addition to gathering what they thought was a thorough background screening process, they all missed Ed’s misdeeds.

Fortunately to the in-house recruiter something just didn’t seem right about Ed during the interview process. Even though Ed’s Minnesota Multi-Phasic Personality Inventory (MMPI) came back with no adverse personality traits (quite a feat in and of itself); something just didn’t sit right. As a result, they hired me to see if anything in Ed’s background was missed.

I was able to find Ed’s latest conviction and final adjudication date which overlapped the date of his application for employment and consent for a background check by 22 days.

That means that after serving a little over 9 years in the state penitentiary with time off for good behavior, Ed was released from the jurisdiction of the court (case fully adjudicated) exactly 6 years and 343 days prior to his application with my client’s firm.

At this point you might be asking: “How can you provide a criminal conviction record past the seven-year, statutory reporting limit imposed by the state where the prospective employer is located if a conviction happened more than nine years past the legal reporting period?”

Aside from the no-limit nature of employment-based public record reporting available at the Federal level under FCRA Section 613(a)(2), [15 U.S.C. § 1681k]; the federal law defers to state Law. And, in many states a seven-year, state-level reporting limit is common.

Had Ed been convicted in a state such as West Virginia, there would be no reporting limit and thus under the federal rules, reporting Ed’s conviction would be timely regardless of what the date of his consent was and whether or not the screener was competent.

Since the company had a zero-tolerance policy for felony convictions, in Ed’s case, since he was convicted in New Mexico, whoever was supposed to know this failed to so advise of Ed’s prior bad act even though it was well within the statutory reporting period for New Mexico if only for 22 days.

Ethical Consideration and Best Practice

What most employers, and an embarrassingly large share of background screening industry players do not understand, is that there are actually three reporting options available to Consumer Reporting Agencies (CRA) when it comes to public records that could have an adverse impact on prospective employment under 15 U.S.C. § 1681k:

1. (Good but amateur) Reporting conviction(s) that occurred within a given statutory reporting period. For example, in several states a CRA may report convictions for seven years back from the date of a consumer’s consent to perform a background check.

2. (Better but not Great) Searching for 10 years for convictions that occurred and where the adjudication(s) in which might overlap into a given statutory reporting period (say one of the states that impose a seven-year reporting period).

3. (Best Practice – Great) Searching to identify attributable residential, employment or traveled to/from jurisdictions back to the age of emancipation (age 18) for attributable conviction(s) or adjudication(s) that may overlap a given statutory reporting period and strongly recommending to the end-user that searches of all the applicable jurisdictions are the only way to ensure a complete convictions check.

Option #3 is the best practice because it opens the door for the widest possible search parameter for a CRA to determine reportable convictions for attainable, attributable and/or otherwise discoverable employment, traveled to/from and residential jurisdictions since the age of emancipation of the candidate (18 years), calculated to lead to convictions resulting in adjudication(s) which may have been completed with the reporting period.

Needless to say, the screening company’s ethos with regard to the thoroughness employed in searching for job-excluding crimes is defined by its choice to ignore all three options.

Above and specifically, there was a conscious ethics lapse both as a result of ignoring the available reporting options, not knowing of them, or failing to advise the client of possible discoveries that could lead to reportable convictions.

Ethical Platforms Facing Employment Screeners

The information below illustrates the most basic ethical platforms facing employment screeners namely;

1. Know and advise the extent of what is reportable to an end-user in order to assure compliance with the FCRA.

2. Understand the methods of searching that are certain to gather the most complete and accurate conviction information (by hand, at the court clerk’s public counter) in addition to lead-generator type private-, or public-assemblage repositories and Positive Candidate Identification®.

3. To know and convey to the end-user the limits of any non-public repositories.

4. Ensure that the search platforms encourage thoroughness in the capture of any and all applicable convictions. Know what the various courts provide in the way of felonies and misdemeanors and advising the client that, in order to determine the full extent of available convictions that meet either the end-user’s criteria or a reporting standard in the absence thereof.

5. Report applicable convictions in as timely a manner as is humanly possible; all things considered.

A Second Case Study

Aside from the aforementioned example of horrible Ed, here is another practical example of why the ethical platform that my company employs would have prevented a tragedy.

A bus driver completes his shift then stops and parks his bus. An elderly, disabled passenger asks the driver to go 100 yards further so he doesn’t have to walk so far to his. The bus driver curtly advises that he is at the end of his shift, refuses to accommodate the patron, and then orders the patron off of the bus.

Upset at the driver’s patent disregard for his well-being and responding in anger, the patron uses several racial slurs to express his displeasure. In response, the driver removes his uniform shirt, follows the patron off of the bus onto the sidewalk and proceeds to inflict severe bodily harm to the passenger by beating him mercilessly. The driver is arrested, convicted and sent to jail.

Prior to exposing the public to this violent driver, the bus company completed an inadequate and poorly spec’d background check. That plebeian check missed a three-count, armed robbery conviction from 20 years prior to the date of consent but with completed adjudication within seven days of the seven-year reporting statute of the state where it happened.

That is 6 years and 358 days before the driver executed his consent to have the background check run. Best practice #3 outlined above would be the only way the background screening company could have known to report the horribly violent conviction for which the driver spent 14 years in prison and 5 years on parole.

This critical background information could have potentially prevented the attack on the elderly passenger and what could also result in a significant trial damages verdict or settlement (this case is pending at the time of this writing.)

Of great consequence in these scenarios are the ethics of both the background check purveyor and the end-user.

Naturally defense counsel in the case of the bus driver is desperately attempting to assert a faux industry standard which limits the reporting of any convictions in that state to the seven-year statutory reporting period and assumes that since the conviction was 20 years prior to the date of consent, that no conviction report was actually (legally) available to the bus operator.

If only that argument had a snowball’s chance in hell of prevailing. Not only was the reporting opportunity within the statutory reporting limit but in this case, the unethical screener decided to call themselves anything but the CRA that by statute they actually were.

As a result of their positioning; the screener willfully ignored the appropriate federal reporting requirements, namely FCRA Section 607 and 613a2, which mandates accuracy in this context.

Many screeners refuse to call themselves a CRA but under 15 U.S.C. § 1681k, the very nature of a request of any third party to search for and report public records as part of an end-user client’s hiring process establishes them as a CRA.

Sadly, in this a case ethics and thoroughness would have prevented this tragedy. In addition, so would have understanding and following the law with regard to illegal and/or incomplete reporting including ultimately refusing to identify itself by the legal definition asserted under federal Law, namely being a CRA.

Not only were ethics nowhere to be found, but conscious evidence of a constructive trust existed not only through the screener’s failure to even identify itself by how the law defined it; but also by its willful disregard for the reporting laws.

Big damages are on the horizon and hopefully the screener and the end-user will find a way to settle since the prima facia case is so clear that a trial should be avoided at all costs.

No one in Ed’s present life knew of his past deeds. The town that he grew up in, and returned to repeatedly in order to commit the most heinous of horrifying acts, kept cases like Ed’s conviction quiet and did not report any of its criminal cases to the FBI’s identification bureau – a situation that is chilling but more common than it should be.

What About Legal Repositories?

In another dreadful example of background checks gone painfully wrong, the Boulder City and Nevada Police Department, which openly and actively runs free fingerprint checks to local charities, provided a “No Record found” result based on fingerprints for an intended counsellor at St. Jude’s Ranch for Children for an applicant by the name of Larry Wisenbaker.

During Wisenbaker’s trial for actively molesting 16 young victims, the prosecutor Clark County Deputy District Attorney Gerald Gardner, called Wisenbaker: “…. the most prolific serial sex offender we have ever prosecuted in this state.”

As the Expert Witness of record in the ensuing civil case against Wisenbaker, I was hired to assist in the civil prosecution of St. Jude’s for negligently hiring him. Very early in the process, I identified two jurisdictions where Larry Wisenbaker had plied his deviant craft within the prior seven years, in residential and employment jurisdictions in both Texas and Georgia.

Both of these jurisdictions do not cooperate with federal authorities with regard to criminal reporting and thus the results of his fingerprint check yielded the no record finding by the Boulder City police department.

To their credit, and to the credit of a wonderful damage-controlling Boulder City Detective who was deeply befuddled by my almost immediate discoveries of not one but two convictions that were not in the FBI’s databases, they helped sink St. Jude’s for what would be a settlement in the multi-millions of dollars.

Even the above-mentioned police officer was unaware of the non-reporting jurisdictions and became my poster-child for the next installment of ethical platforms – i.e. Positive Candidate Identification®.

What is Positive Candidate Identification?

In essence, had the standardized Boulder City fingerprint checks been preceded by simple and inexpensive identification checks, performed at the most basic levels, Wisenbaker would have been identified as living and working in jurisdictions not covered by the FBI’s Identification Bureau.

And, if an astute and knowledgeable investigator was paying attention, a simple inter-agency call to either or both jurisdictions’ law enforcement departments would have yielded the same fruit that I was able to uncover through calls to the court clerk’s offices after I ran my thorough ID Check.

Not uncommonly, these discoveries were made, literally within first hour that I was retained. To add insult to injury was Wisenbaker’s employment application with St. Jude’s where he actually admitted to the existence of felonies with no details.

Unfortunately, no one in the HR Department followed up with him to ascertain the details of these convictions; which would have easily precluded him from further consideration of candidacy.

Wisenbaker had been convicted of a host of charges which were easy predictors of what he would do while in St. Jude’s employ. Ultimately, his abusive actions against 16 children resulted in one victim being convicted to life in prison for subsequently committing murder.

How to Thoroughly Identify Your Employment Candidate

When it comes to being able to astutely and thoroughly identify an employment candidate the ethical question follows the prescriptions below and for most companies; provides not only a substantial data access task, but also a cost challenge as well.

Most end-user HR departments are unaware that so-called cheap screeners are potentially damaging their end-user clients by failing to properly invest in the single most important tool in the screener’s toolbox: the relentless pursuit of identity.

That search at the very least must include:

1. Credit bureau social security identity and credit bureau header products independent of services that offer these products as “integrated” in their ID platforms, such as ID Verify® which is good and should be used as it also uses Social Security Administration (SSA) data to enhance its reports.

Note – there are three credit bureaus: Experian, Equifax and TransUnion and up to nine identification products available through them.

The question becomes; do you run all of them or should your knowledge be so deep that you clearly know which ones are dependable and which are redundant? What do you do if you don’t have access to all three?

The answer is to run everything you can to get to a place where you have exhausted the potential for new information; whatever that takes.

2. Poll several or all of the proprietary repositories such as TransUnion/TLO, LocatePlus, etc. for identity, name variations, SSN and date of birth (DOB) variations and prior addresses.

3. Best practice with regard to Positive Candidate Identification® is to obtain identity products from all available sources until it is clear that you have succeeded in thoroughly identifying the candidate.

This process requires not only access to all available identification repositories; but as well intimate knowledge of the completeness of each repository polled and the willingness of the screening company to subscribe to all available services regardless of associated costs.

What About Searching Lead-Generators?

What lies herein is a sophisticated approach to additionally determining the depth and breadth of possible convictions and potential identity variations on a given candidate prior to ultimately dispatching researchers to applicable court jurisdictions.

Big data, as the consumer-plaintiff’s bar has coined the term for private, national criminal database repositories such as CoreLogic/National Background Data, Megacriminal and a host of others; can be either a very good friend or a terrible enemy depending upon the context in which it is used. This data is, however, invaluable if they are used internally and not as a final result.

What is inarguable is that big data’s searchable fields over wide areas usually include many federal, state and local jurisdictions. While helpful, one must never forget that the search value of any private repository lies in the use of either all of them, or as many as one’s breadth of knowledge leads them to conclude is satisfactory in arriving at the universe of available information. Does that process sound expensive to you?

You bet it is – but as the above cases, and countless others cases I could attest to, all of these efforts must be employed if an ethics-based, practical and thorough screening process is to occur and to assist in determining once and for all if a candidate is worthy of an employer’s trust.

Thomas C. Lawson, CFE, CII is a Life-Member of the ACFE and the longest-serving member of the Editorial Review Committee for FRAUD Magazine. Tom is the Founder of APSCREEN, the nation’s oldest Factual Employment Screening firm, a term Tom coined to differentiate APSCREEN’s level of care in the screening process. Tom is also thought to be the longest-serving Negligent Hiring Expert Witness from the Improper Employment Screening and FCRA Compliance perspectives with his first case served in 1984. Tom’s CV is available for review via email.

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