Your feelings please

MsLady · March 2003

I got back a Criminal Check on a new EE, saying he was convicted of Obstructing Justice, was sentenced to 12 mo. drug addiction care and had to pay fines. On his application he checked no where it asks "have you ever pled "guilty" or "no contest" to, or been convicted of a crime". The Executive Director wants me to speak to the Director to see if he is an EE worth keeping. I have been unable to contact the Director so far. I did speak to the EE today, and he states that he doesn't remember and that he was never sentenced to the 12 mo of drug addiction care. He is comming in to my office later today. I know the desion we make here is very important. He seems to be a good guy, but he will be working with children. I wanted to see if the EE was being "honest" when he filled out his application, considering the offense happened in '94, but him saying he was never sentenced makes me wonder...I need some cents here!

Don D · March 2003

If he claims to not be able to remember whether or not he pled guilty or was pronounced guilty to obstruction of justice not 10 years ago, I think he may still be using. That's not typically the sort of answer you have to struggle for. Working with children? What does that mean?

MsLady · March 2003

I work at a not-for-profit orgaization that works with emotionally challenged children

jimlegal · March 2003

For what it is worth, I would have another company check the background as a check and balance on the first company. We have had background checks come back wrong before. If we received a second verification, then we would terminate for false information on the application and not for the information returned on the background check. Your policies in this area should dictate what you do. Hope this helps.

MsLady · March 2003

The background check came from the state department.

jimlegal · March 2003

When you say State Department, do you mean the official agency within your state or the State Department of the United States? Is this department in a position to provide you a copy of the documents they relied upon for the information? If you have the information concerning the conviction, you should be able to check directly with the Court that issued the conviction. Have you cross checked the employees indentifying information with that contained on the conviction documentation. I may be a little more touchy in this area than most, however I have seen a situation where the company discharged the employee, then the background inquiry was cleared up. Reinstatement with back pay was required. The company's main defense was over come by the fact that the company took no additional steps to ensure that the information was correct. In this type situation I would take steps beyond what a reasonable prudient person would take. It may cost a couple of more dollars now and a delay of time, but surely beats the costs of litigation, back pay, etc. Just trying to make suggestions to ensure that you don't fall into that type of situation.

MsLady · March 2003

I got the information fromt he IL State Police. I did compare the information in the check with the information that I have on him. They seem to be the same.

jimlegal · March 2003

Sounds like you may have the correct information. However State Agencies have been known to get it wrong too. I would still make a second attempt to verify the information by atleast one other source. Was this an offer of employment contingent on the background check? If so then here your policy would dictate. If not maybe a consideration to place such a policy in place for the future, in the event this type of situation were to occur again. Personally I do not think you can take "ANY" chances when children are involved. Your first responsibility is to the safety of the children, not to the pending applicant or probationary employee. Thus, if I felt the information was correct I would terminate...

K_Lynch · March 2003

We had a similar situation with an IL state check. Our employee denied the report, and I contacted the company with my questions. They in turn suggested the ee have fingerprints done with a kit they sent out, and the prints were compared. There was no match, and this was provided in writing.

jimlegal · March 2003

K_Lynch has a prime example that State Agencies do make mistakes. MsLady please do yourself a favor and double check the information.

Don D · March 2003

The last thing an "emotionally challenged child" needs is inappropriate role models. A person who denies his past is an inappropriate role model for children. I would be vary wary about wanting to hire this individual. I would much rather see you err trying to protect the clients than err on the side of wanting to be forgiving and offering opportunities to this applicant. Way too much at risk there for me. Good luck. x:-)

terryb · March 2003

[font size="1" color="#FF0000"]LAST EDITED ON 03-17-03 AT 10:36AM (CST)[/font][p]Seems like if this was his only brush with the law, he'd remember it well.
Nonetheless, I agree that an honest role model is a must for the children.

SMace · March 2003

Under the FCRA (Fair Credit Reporting Act) an employee has the right to challenge a background check that results in an adverse employment action. There is certain info that you must give them. Consult an attorney or carefully review the FCRA if you are going to terminate.

MsLady · March 2003

Is there a time limit to this challenge?

Crout · March 2003

If.........IF......your agency is mandated by the state to perform background checks on new employees...and I'm guessing you are...then FCRA would not apply because the mandate would shield your company from those issues. I am more concered by the fact that you apparantly do not have a policy in place to deal with these types of situations. And if you do have a policy, why are you not following it?

jimlegal · March 2003

Off the top of my head I think it maybe thirty (30) days to dispute and one (1) year to file a lawsuit. Please find the entire text of the FCRA at:
[url]http://www.ftc.gov/os/statutes/fcra.htm[/url]
Hope this information helps.

Don D · March 2003

Isn't it true that any resulting lawsuit would be against the provider of the information and not the ultimate user, the employer, who no doubt paid for a professional search and used the results in good faith. On a broader note, rather than getting antsy when we get a 'positive' result on any of the tests we use, would we not just be better off using what we decide to use and not running off in the direction of additional tests when we selectively find a result we don't especially like? At some point, we as employers have to find a comfort level with our processes and move along with them in the interest of populating the company's positions responsibly. I've heard of false positives and inaccurate drug test results too......but that does not mean I am going to re-test every positive we get. We have a company to staff and a policy to follow.

Whatever · March 2003

I agree with the above about a second check. However, I believe there is a difference between not remembering and denying. The biggest priority has to be the safety of children.

Hatchetman · March 2003

Regarding his not remembering it...it's possible.

He may have pled out to a lesser charge and got probation. His attorney just meantion to him "look, if you don't do anything wrong, it won't be a problem for you in hte future."

Ten years goes by. He's taking care of business. Life has moved on and he probably hasn't thought aobu it since when it got resolved.

It wouldn't be unusual given the right circumstances for an individual to forget such a conviction.

lettuce · March 2003

I always regard negative background investigation reports as a "research" problem. Unfortunately, there is a huge difference among providers. Some rely on databases only - and we all know how inconsistently databases may be updated. I vote for another check. This could be done by another resource or by asking the current company to recheck. Buy some time and pursue this further.

Crout · March 2003

Most non-profits (such as my company) do not use third-providers for background checks. The reason is cost and the fact that the law we operate under shields our company from things like FCRA, for example. Also, many States have a laundry list of offenses that prohibit employment. But what would really get a company in hot water is the lack of a policy on hiring. That's why I was so surprised that Lady's boss would leave the decision up to a supervisor to determine if the guy was "worth keeping." That kind of practice could really open up a company to liability. Suppose the only guys "worth keeping" in the eyes of certain supervisors were white guys?

Your feelings please

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