March
7
2012
Highway safety took a huge step this week when a jury in federal court in Medford, Oregon agreed with us in a negligent hiring case and rendered a $5.2 million verdict.
I am proud to have represented the family of Kelly Linhart, who was killed on Sept. 25, 2008, when Daniel Clarey, a truck driver high on crystal methamphetamines, plowed into him on the side of Interstate 5 near Ashland, Oregon. We argued that Heyl Logistics, the broker that hired Clarey’s employer, Washington Transportation, to haul goods for bottled water giant Nestle Waters North America, failed to do due diligence. The jury agreed and awarded Linhart’s four adult children a verdict of $5.2 million, including punitive damages.
Washington Transportation was without insurance and without operating authority. Its owners, brothers Eric and Forrest Rangeloff, who share a checkered past as owners of 15 different trucking carriers, had their license revoked for, among other violations, failing to perform drug testing on their drivers. The jury agreed with us that Heyl Logistics should have known about Washington Transportation’s safety violations before hiring it to haul goods of Nestle.
The decision should serve as a stark reminder to trucking brokers nationwide that, while federal regulations on brokers may be few, the courts remain as watchdogs against the practice of negligent hiring.
This was not about winning a huge monetary verdict. This was about safety – safety on our roads – and about reminding brokers that safety standards compromised in the name of saving a few bucks will not be tolerated.
March
5
2012
Benefit plan administrators in-house or third-party administrators, often need to locate people who terminate employment without leaving a forwarding address and have benefits due from a qualified plan. By law, these companies must perform due diligence in attempting to locate a lost plan participant in order to meet ERISA, GATT, IRS requirements. Unfortunately, the IRS does not publish specific guidelines as to what constitutes a diligent search. However, there are several options available to you for locating lost participants that are described below:
Internet-Based Locator Services
This method is probably the easiest, fastest and most effective way to locate missing participants and doesn’t require you to have a working knowledge of the internet. It saves you time and money, and by far the best provider for this service is EmployeeLocator.com. You can get results within one day for $10 a name. It doesn’t get any simpler!
If you are determined to spend your own time hunting down a current address for your person, here are some of the options available:
1. Surf the internet: Try websites like www.four11.com, www.bigfoot.com, www.anywho.com, www.whowhere.com, and www.infospace.com
2. Check your plan or employer records for updated addresses:
-Mail a letter to the last known address that you have and see if they contact you. You might get lucky and the letter gets forwarded to the right person.
-If you know the area they moved to, try directory assistance there.
-Check personnel files to see if they have contacted you for a missing W-2.
-Ask current employees to help you locate the missing person. Post the names on the employee bulletin board.
-Look at the person’s work application and contact the emergency or business references.
-Check the participant’s beneficiary designation form and contact the beneficiary.
-If they were married, contact the spouse or if possible, friends and relatives.
3. Check with other companies in the loop where privacy concerns are not an issue:
-You can contact the subsequent employer to see if they are still working there.
-If the missing person is a member of a professional association; try contacting them through the association.
-If they filed a claim for health benefits, the spouse’s employer maybe been listed on the insurance claim forms.
4. Use of the IRS & SSA’s letter-forwarding services:
IRS Lost Participant Locator Program
The IRS administers a letter-forwarding program that helps you locate missing retirement plan participants. You must submit a request to the IRS via mail and provide the following information:
-A brief explanation why you need to use the program (for example, to locate a missing plan participant is sufficient);
-The name(s) of the missing individual(s);
-The social security number(s) (SSN) of the missing individuals. The SSN is the key element used to access the right tax account and get a mailing address. The request cannot be processed if a SSN is not furnished; and
-The actual letter that is being forwarded.
A separate letter should be addressed to each participant involved and it should include a statement asking the participant to contact the plan administrator directly.
Once the IRS gets your request, and if an address is found in their databases for this individual, they will then forward your request to the lost plan participant. The IRS lets the individual know that they do not divulge the recipient’s address or any other tax information and that the decision to respond is entirely up to the recipient.
If an address cannot be found, or the letter is returned undeliverable by USPS, the letter is destroyed. Due to disclosure laws, the IRS cannot provide the requester with the results of the request. The law does NOT allow the IRS to provide the sender of this letter with the result of its efforts and response time is based on overall workload of the Officer. The IRS estimates that in 2001 alone, there were requests for nearly 800,000 letters to be forwarded. Because of the volume of requests, the response time is based on the overall workload of the Disclosure Officer. Based upon anecdotal information, it is possible that your request for forwarding could take up to a year.
Each request should be sent to the attention of the Disclosure Officer at the Service’s district office nearest the requester (it does not matter where the recipient last resided). To find the office nearest you, go to www.irs.gov and click on “About the IRS” and then “Contact My Local Office.”
Requests involving 50 or more potential recipients, including multiple requests from a single entity that can be expected to total at least 50 recipients, are processed separate from the free program. If you need to locate more than 50 people, the fee is $1,750. Plan sponsors who want to use this program should call the Disclosure Office in Washington, D.C. at (202) 622-3324 for additional information.
Social Security Administration (SSA) Letter Forwarding Program
About 25,000 people ask the SSA for help in locating a missing person each year. Social Security regulations and federal law protect the privacy of all social security number holders. Social Security will forward a letter only if there is a compelling humanitarian or financial reason and it is reasonable to assume that the missing person would want to be notified. If the missing person receives monthly benefits, Social Security will mail the letter directly. If the missing person is not receiving benefits, the letter is sent in-care-of the last employer on the missing person’s Social Security earnings record.
Following is the procedure outlined by the SSA to locate a lost participant:
1. Write a letter to the missing individual (be sure to explain whom to contact and where or how to contact you for more information) and place in an unsealed, unstamped envelope bearing the individual’s name and social security number.
2. Prepare a letter to the SSA explaining the circumstances that require you to locate the missing person. There is a $25.00 charge per letter to cover the cost of a record search and it is payable by cashier’s check or money order.
3. Place both letters and the unsealed, unstamped envelope in a second envelope and take it to your local Social Security Office or mail it to:
Social Security Administration, Wilkes-Barre Data Operations Center
1150 East Mountain Drive
P.O. Box 3150
Wilkes-Barre, PA 18767-3150
March
2
2012
In the latest barrage of attacks against the Human Resources Management side of American business, the EEOC just levied a $3+ million fine against PepsiCo targeting discrimination in the background check process. Here is yet another example of the EEOC singling out major companies to put forth its agenda of constructively terminating American business’s inalienable right to protect itself through the use of background checks. They have done it this time by using trickery in asserting racial bias in yet another legitimate Human Resources Management practice.
Big players like Pepsi are fair game and make a big splash when pushed overboard, so they are on the EEOC’s radar screen, and Lord help them.
The EEOC has declared war on the background screening industry through this front and several other fronts and the reason is because background checks are a highly effective tool in the eradication of potentially dangerous situations arising in the workplace. Unfortunately the natural by-product of the use of this successful tool, undesirable people who would otherwise get through the doors of America’s workplaces are being stifled, and rightfully so.
In many cases that means they are not immediately employable in their chosen or desired areas of expertise, and are often being forced to settle for lesser employment, if any is offered to them at all. I guess that means the concept of background checks as a protective tool for American business has been deadly and swiftly proven correct, and the absence of the use of them undeniably has resulted in some pretty heinous crimes against persons, but that doesn’t seem to matter to the EEOC.
What the EEOC fails to see is the value in the background check as a dialog creator between employer and candidate, opting instead to vilify background checks as the highest and best crime prevention tool available to businesses of all sizes, because it gets rid of a problem before it becomes a problem. Any HR professional worth their salt will tell you that they do not deny candidacy based on a person’s criminal past, they deny it based on their gut feeling that the person is not yet finished with criminal behavior, and pose a significant risk. The background check is the tool that creates the dialog, and now, the EEOC wants take that tool away.
If background checks are so bad for the private sector, why does every policeman, nurse, fireman, military service person and government worker (read: EEOC Employees) go through one? Simple, the government doesn’t want to hire the riff-raff, they want the private sector to deal with it turning off the spotlight, so the rats can invade the pantry.
What the success of a background screening regimen SHOULD spell out to potential job applicants that would be stymied by a prior criminal conviction is the same deterrent that would stifle a criminal under the direct threat of going to jail for committing a crime – if you want to be a producing member of society get a job and join the race, keep your nose clean, follow the rules and respect your fellow citizens.
Sadly, as with the vertically increasing leniency of the courts over the last 30 years, and the skill of and latitude afforded criminal defense attorneys and their clients, that societal element which will always try to get away with crimes are emboldened.
Where these folks once would shy away from a life of crime because of the deterrent effect of things like competent background checks exposing their criminal pasts and guaranteed prison time if you violate society’s rules, they now seek asylum in the liberal concept of forgiveness.
The EEOC wants to canonize this fact by ignoring the adverse effect of a morally deteriorating society, using “turn the other cheek” as its mantra. Like gun control, where only cops and criminals end up with guns, the ones who want you to turn the other cheek by no longer being able to conduct background checks want that so you are looking in another direction when they do their dirty deeds, and they can now be employed under the EEOC’s model, while doing it.
Of course, what do we expect? No one enforces the borders, so our country is overrun by illegal aliens who run free and rape and pillage our economy without fear of reprisal all because some politician needed to beat the opposing party to the voting bloc represented by legalizing these most basic of criminals. Is the microcosm of prison culture so rampant in the halls of those who govern us not so clear that it is no wonder we are fighting a losing battle of the simple concept of doing the right thing?
The EEOC has done exactly the opposite for society in what it purports to assert is making more people hirable by making background checks the villain, and the true effect of their attack is that honest, decent business people will have one less tool in their tool box to protect their customers and their employees from the whims of people of lesser morals, and from those who would create mayhem. The EEOC started their constructive elimination of background checks several years ago by going after employment credit reports, and now criminal conviction histories are in directly in their crosshairs.
When criminal history reports are outlawed, the American workplace will become a very dangerous place to be.
Sound familiar? These are the same liberals also want to take away your guns, and leave you with no way to protect yourself, your family and your property from robbers, burglars, rapists and murderers who decide when it is time to violate the sanctity of your home, or attack you in the parking lot of your business, school or shopping mall.
Now the EEOC wants to strip American Business of the very best and most proven way to protect its customers and employees, and keep the wolves away from the front door, namely, a solid background check.
Guess again, EEOC.
February
20
2012
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.
February
13
2012
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.
February
9
2012
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.
February
7
2012
Well, here is the faux pas of the day. If you want to read the news report, here is the link:
http://easyforexguides.com/tag/pre-employment-screening/
If you ask me, Virgin should be welcoming people into their waiting arms and using the opportunity to expand their recruiting by using the interview process rather than weeding out undesirables by making them pay up front for a criminal record check. It would appear that the theory is that anyone willing to pay must have a clean record, or they wouldn’t pay for one, knowing they would be automatically eliminated from candidacy.
It is a sneaky way to scrape the cream off of the top except for that one factor they likely aren’t considering, which is that is that more and more people are boldly presenting their criminal backgrounds, hoping that the prospective employer will look past the conviction and see that they might indeed be a very good prospective employee.
In essence, it occurs to me as an HR guy for 32 years, and a Factual Employment Screener for those same 32 years that Virgin is actually missing a lot of good potentials, and throwing the baby out with the bathwater.
February
2
2012
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.
February
2
2012
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.
January
30
2012
The killing of a south Charlotte store manager – allegedly by a felon hired to work there – highlights the risks companies take when they hire an employee with a criminal record, or don’t do a full background check on applicants.
The Flying Biscuit Cafe in StoneCrest shopping center faces possible fines or other penalties from the Alcohol Law Enforcement division for hiring Mark Anthony Cox, 22.
Background checks are only legally required in certain fields, such as child care and for people who work with the elderly, but the Flying Biscuit could be penalized because businesses aren’t allowed to hire felons convicted in the last three years for jobs that involve serving alcohol.
Read more here: http://www.charlotteobserver.com/2012/01/28/2965684/killing-puts-background-checks.html#storylink=cpy
