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Anatomy of a Background Check

Posted on February 10, 2013 by Lina Maini

gun laws

With a fairly healthy dose of humor and an equal measure of alarm, I’ve listened, read, heard, been tweetered (?), Facebooked and Tumblred by representatives on all sides of the “gun control” (the gun has control – it is immobile and its product possesses kinetic energy only when put in motion) issue.  Almost all parties agree that an enhanced background check should be required for persons wishing to purchase firearms. That’s a throwaway sentiment.   How many people, besides those that have already been through a gun purchase background check, actually understand the process and the information contained in such a search?

We conduct background searches daily; the majority are on domestic subjects, and we also provide international services.  Our clients request background searches for a multitude of reasons ranging from pre-employment prerequisites, (I’ll get into the government-mandated employment eligibility program, EVerify, in another article. Althoug,h if you search the archives, I’ve already posted several on the matter.), to hiring a nanny to personal  financial stability of potential business partners. (We do not conduct background checks for purposes of investigating a potential personal partner, locating mistresses or suitability of a date. Google CheckMate for that.)

To follow is the bare bones information contained within a comprehensive check (the minimum required to possess a firearm, aside from the NCIC fingerprint and DNA run through):

COMPREHENSIVE BACKGROUND CHECK

DOE, ARMANDO J.

Subject Information:

Name: ARMANDO J. DOE

DOB: 5/20/1979

Age: 33

SSN: 123-45-6789 issued in New York between 5/20/1979 and 12/31/1979

Names Associated With Subject:

ARMAN DOE

ARMAND J. DOE

J. ARMANDO DOE

ARMAND JOHN DOE

A.J. DOE

Others Associated With Subjects SSN:

(DOES NOT indicate any type of fraud or deception)

THOMAS ROBERTSON DOB: 4/9/1967

================================================================

Address History:

135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742                      (Jan 2011 – Dec 2012)

14-01 121st , COLLEGE POINT, NY 11356-3765                                          (Aug 2010 – Jan 2011)

P.O. BOX 5106, COLLEGE POINT, NY 11356-5106                                      (June 2007 – Dec 2012)

149-21 71ST ST, COLLEGE POINT, NY 11563-9823                                    (Feb 2003 – Nov 2008)

7 SUMMIT STREET, MALBA, NY , 11357-3476                                            (June 1990 – Mar 2006)

Information on Affiliated Addresses:

135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742                      (Jan 2011 – Dec 2012)

Name Associated with Address:

ARMANDO J. DOE

Current Residents at Address:

ARMANDO J. DOE

DINA C. DOE

SARA DOE

718-555-1234   ARMANDO DOE

Property Ownership Information for this Address

Property:

Parcel Number – 50-40-21-09-1001

Book – 4761

Page – 1243

Owner Name:  SMITH, HERMAN

Owner Name 2: SMITH, ANNA LIA

Property Address: - 135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742

Owner Address: 13247 SW 43RD ST,  PLANTATION,  FL 33309-2742

Sale Date – 02/03/2011

Sale Price – $320,000

Land Usage – MUTLI RES

Total Market Value – $438,850

Assessed Value – $438,850

Land Value – $100,950

Improvement Value – $118,010

Land Size – 16,789 Square Feet

Year Built – 2000

Seller Name: RIVINGTON, IAN & JANICE

Legal Description –  182-2400 B LOT 270

135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742                      (Jan 2011 – Dec 2012)

Possible Properties Owned by Subject: 

Property: None found.

(THE REPORT CONTINUES LISTING ALL OF THE ABOVE INFORMATION – owner, owner address, sale date… – FOR EVERY ADDRESS ON RECORD FOR THE SUBJECT.)

Emails Associated W Subject:

AJDOE520@FLASH.NET

ARMANDOJD520@GMAIL.COM

ARMANDOJD05@HOTMAIL.COM

Phones Associated W Subject:

Name: ARMANDO DOE

Address: SOUTH OZONE PARK, NY 11420

Phone Number:  718-555-1234

Phone Type:  Landline

Carrier:  Verizon

Name: DINA C. DOE

Address: 135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742

Phone Number:  347-555-9518

Phone Type:  Mobile

Carrier:  VERIZON WIRELESS

Criminal Record Profile:

 National Criminal Record Search (Felonies & Major Misdemeanors):

       New York Arrest Report:

              Name: DOE, ARMANDO J.

              SSN: 123-45-6789

              Address: 135-23 122nd  ST, SOUTH OZONE PARK, NY 

              State of Origin: New York

              County of Origin: Queens

              Case Type Description: Queens County(NY)Arrest

              Arrests: 

Arrest #1

Arrest Date: 09/21/2010

Arresting Agency:  109, NYPD

Arrest Disposition Date:06/29/2012

Court Fine:          Offense: INTENT DIST/2Nd

Agency Case #:2011-675835G

Arrest Level/Degree: FELONY

Arrest Disposition: BOOKED


(The arrest will undoubtedly carry several charges.  Possession, attempt to distribute, resisting arrest, etc.  Each arrest charge will be separately defined – from charge to disposition.)

       New York Department of Corrections:

              Name: ARMANDO J. DOE

              SSN: 123-45-6789

              State of Origin: NY

              Inmate Number: 137869

              DOB: 05/20/1979

              Race: WHITE

              Sex: Male

              Eyes: GREEN

              Height: 6′ 00″

              Weight: 205

              Case Number: 0529234

              Case Type Description: Department Of Correction, NY

              Latest Admission Date: 09/21/2010    

State Criminal Record Search (Felonies & Major Misdemeanors):

(Repeats the Nationwide Search and may include ACDs - Adjournment in Contemplation of Dismissal. In an ACD situation, the offender is on a conditional probation period of anywhere from six months to several years, depending on his/her criminal history.  If the person re-offends for any reason during this adjournment period, s/he can be re-arrested.  The follow up information will include every possible detail from co-defendant(s), arresting officers to court transciptionists to defense counsel/prosecutors to the presiding judges and every motion made on the case.  Per the number of arrests, this portion of a background check can run anywhere from several dozen to several hundred pages.)

Driver’s License Information: 

(Current)

Name:           ARMANDO J. DOE

State: New York

License Address: 135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742

DOB: 05/20/1979

SSN : 123-45-6789

Gender: Male

Ethnicity: WHITE

Expiration Date: 05/20/2016

Issue Date: 03/13/2006

License Type: RENEWAL

License Class: Non-Commercial – Class D

Height: 6’00

Data Source: Governmental

(Previous)

Motor Vehicles Registered To Subject:

Vehicle:

Description: Blue 2001 Nissan Sentra - 4dr Sedan

VIN: 5NING01C8ST000001
Engine: 4 Cylinder 152 Cubic Inch — Gas Powered               State Of Origin: Pennsylvania

Anti Lock Brakes: 4 wheel standard

Air Conditioning: Standard

Daytime Running Lights: Standard

Power Steering: Standard

Power Brakes: Standard

Power Windows: Standard

Security System:  Standard Alarm

Roof: Standard

Price: 16750

Radio: AM/FM CD

Front Wheel Drive: No

Four Wheel Drive: No

Tilt Wheel: Standard

Registrant(s)

Record Type: CURRENT

Name: ARMANDO J. DOE

Address: 135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742

DOB: 5/20/1979

Sex: Male

Age: 33

Tag Number: CFD9524

License State: NY

Earliest Registration Date: 6/12/2012

Latest Registration Date: 6/12/2012

Expiration Date: 6/11/2013

License Plate Type: Private

Title Number: 0219856887

Title Issue Date: 6/12/2012

Lien Holder(s)

Company Name: CHASE MANH

Address: 150 PARK PLACE, 23RD FLOOR, NEW YORK, NY 10019

 (Report includes every vehicle ever owned or registered by the subject and all associated tags.)

Concealed Weapons Permit:  (This will include target permits.)

[None Found]

Possible or Previous Work Affiliations:

Name: ARMANDO J. DOE

Title: Manager

SSN: 123-45-6789

Company: ABCDE, LLC.

Address: 158-09 Northern Boulevard, Little Neck, NY  11363-4857

Dates: Dec 21, 2005

Corporate Affiliations:

[None Found]

Professional License(s): 

[None Found]

 FAA Certifications: 

[None Found]

FAA Aircrafts: 

[None Found]

Watercraft: 

[None Found]

Voter Registration:  

Name: ARMANDO J. DOE

Address: 135-23 122nd  ST, SOUTH OZONE PARK, NY 11420-2742

DOB: 5/20/1979

Gender: Male

Ethnicity: White

Political Party: UNDECLARED

State of Registration: New York

Status: ACTIVE

Hunting/Fishing Permit: 

[None Found]

Bankruptcies:

[None Found]

 Liens and Judgments:

[None Found]

UCC Filings: 

[None Found]

Possible Associates:  (Business)

Possible Relative Summary: 

>Immediate Relatives
>> 2nd Degree Relatives & AKAs on Immediate Relatives
>>> 3rd Degree Relatives & AKAs on 2nd Degree Relatives

(This section begins at the grandparents and continues through prior-divorce or death in-laws. Each item contains the person’s name, DOB, DOD, last known address/phone number and their 1st through 3rd degree relatives.  Then we run the subject through EVerify – subject matter for an upcoming article.)

END OF COMPREHENSIVE BACKGROUND CHECK REPORT. 

The above described background report is compiled from many diverse sources including, but not limited to,  governmental (federal, state and local) agencies (SSA, DMVs, DHS…),  consumer credit reporting companies and other reporting affiliates that may be indirectly or second/third-party affiliated to the subject (e.g., guarantor).  This is a low to average security level background check. There is additional research that occurs but the above sample report is representative of a first sweep on a background investigation.

Now we at least have a jumping off point to begin discussing enhanced background checks.  Debate away.

There is more to the above subject profiled than meets the eye.  All of the identifiers have been changed but this is a real background check – minus multiple pages of repetitive and unrelatable information.  Armando’s grandmother’s ex-and now dead- husband won’t make a difference. My point is that a comprehensive background check follows through very carefully and leaves enough markers for the reviewing investigator to pick up on if s/he decides there is reason to dig deeper.  I have trust that the security background search systems in place actually do work and have and will evolve as we meet new technological challenges for those wishing to circumvent their disqualifying past as it relates to gun purchases and in general.

Our operatives: Street smart; info savvy.

As always, stay. safe.

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Filed under: background, background checks, crime, criminal, cyber investigations, employee record, Identity, personal information, security | 1 Comment »

Basics of a Background Check

Posted on January 28, 2013 by Lina Maini

background check

In employee hiring, “background check” has become a drop kick term thrown in to Human Resources conversations with no real meaning attached.

If conducted properly, there will be no two similar background check results – albeit,  the professional investigator should operate from an experience-based template, outling his/her methodology.  Aside from the consistency of results, wire-framing an investigation will ensure that the basics of a background check are researched and, serves as a good springboard once the information pipeline begins to produce.

Below we will outline the various type of background checks and the situations wherein which they should be conducted.

New Hire (Non-Management Level, excepting positions involving access to client and or other employee financial information):

The most relevent and important features of a comprehensive background check are the:

1. Address, SSN and DOB verification and

2. Criminal history (this level search will not include criminal charges – only convictions)

3. E-Verification clearance ensuring that the potential new hire is in fact legally allowed to work in the U.S.

New-Hire (Management, fiduciary trust or client financials access and C positions):

A more comprehensive search than a basic new hire background check, those conducted for potential management, C positions and employees with access to client financial information should include the above and:

1. A full credit check.

2. Assets search,.

3. An in-depth criminal records review (to include criminal charges).

New Partner:

There is a Japanese adage, correctly applicable to undertaking a new partner: “One must marry with both eyes open.”

In taking on a new partner, including all of the above searches, the following investigations should also occur:

1. Full litigation history.

2. Pervious positions and conditions of departure verifications.

3. Professional license search (to ensure licensure validity and uncover professional sanctions, if any).

4. Full criminal check to include researching the backgrounds of the new partner’s former associates.

5. Develop the subject’s public and private profile.  (There are many methods employed by professional detectives that will allow the investigator to acquire the comprehensive information necessary to develop a 360 degree assessment of the subject.)  This is a critical part of  checking the background of a potential partner.  In today’s information age, one can’t control all aspects of one’s life and there will be the inevitable professional and personal disclosures online.  While no one posting (unless of course it’s of a truly, damaging event), will reveal the subject’s true character,  subsequent to assessing the all of the tangible search results, a pattern should become obvious to the investigator which will allow for an accurate analysis of the subject’s behavior.  The past portends the future.

Recommendation: All of the above information now relayed, and even with the verified, accurate and comprehensive information you now have in hand regarding your new business association, never forget to trust your instinct.

Information is the world’s currency.

As always, stay safe.

Filed under: asset search, background, background checks, employment, Employment Regulations | 1 Comment »

Counteracting Increased Illegitimate Whistle-Blowing

Posted on November 20, 2012 by Lina Maini

Increasingly, employers (estimated at a 300+% spike since approximately a decade ago according to the IRS) are falling prey to employee whistle-blowers that can leave a company or firm bankrupt beyond recovery.  Granted, in any civilized society there should always be a strong mechanism in place for reporting illegal and or dangerous business practices to the proper authorities.  The drastic rise in whistle-blower initiated claims however includes a disproportionately high number of simply disgruntled former employees using this tipping method in retaliation for both real and imagined offenses.

And government agencies are aggressively encouraging whistle-blowing as a means of backdooring in federal corporate oversight.

By way of example, the Dodd-Frank Wall Street Reform and Consumer Protection Act offers a whistle-blower provision that encourages giving tips to the Securities and Exchange Commission. The final rule permits them to go first to the SEC rather than their own firms, thus putting their firms at risk of falling under SEC scrutiny.

Under the provision, a whistle-blower who provides “original information” to the SEC in a case that results in $1 million+ sanctions, could be awarded up to 30% of the penalties levied.   An SEC’s Office of the Whistleblower spokesperson stated that while he has no data to indicate whether the number of whistle-blower tips have increased since its rule implementing the act went into effect Aug. 12, there has been a “significant increase in the number of quality tips.” The SEC expects to will receive upwards of 25,000 new tips annually.   Companies argued unsuccessfully for a  requirement that employees first go to their own companies with any whistle-blower complaints before the go to the SEC. Employers feel that this bounty program will undermine their own internal compliance policies and will have a drastically reduced ability to monitor the every day mechanisms that keep companies in business.  Companies can justifiably presume there will be more whistle-blowing claims, especially by disgruntled former employees and whether the claims are eventually proven false, the resultant legal defense costs will skyrocket for these companies.

Our advice is for companies to foster a workplace environment wherein employee complaints are non-judgmentally received and reviewed by supervisors and to ensure that employees recognize their rights in reporting issues via a well-crafted employee handbook.  When the steps to reporting  unpleasant workplace situations are clearly outlined (and recorded), employees feel empowered that their legitimate complaints are being taken seriously.  There will always be a group of retaliatory malcontents in any company, but combatting this malice with a pro-active employee reporting policy will leave the onus of the legitimacy of questionable claims on the troublemakers and cause their separation from a content corporate workstaff.

One course of action that we recommend, and it may appear partial, but it is my job to know this,  is to conduct background checks on potential new hires who will be handling financial, employee and client information.  (I’ll cover the related mandatory Red Flagg employee and client data security rules of the new FCRA laws in a future article.)

Our Operatives: Street smart; info savvy.

As always, stay safe.

 

Filed under: background checks, Employment Regulations, evidence, whistle-blowng | Tagged: , , , , , , , , | 2 Comments »

Having a Criminal Record: Not An Automatic Employment Disqualifier

Posted on November 5, 2012 by Lina Maini

Labor and employment attorneys around the country are advising their clients to check the revised EEOC guidelines for employers who conduct criminal background checks (issued in April 2012).  Judy Greenwald, Business Insurance, elicited advice from some of the nation’s leading experts on employment background check laws in her article, “Employers advised against automatic hiring ban on people with criminal backgrounds”.

Employers are now advised not to have a blanket exclusion on hiring people with criminal backgrounds, experts say in response to the Equal Employment Opportunity‘s guidance on criminal background checks.

“The one thing the policy should definitely state is that there is no automatic ban” for an applicant with a criminal conviction, said Amy L. Bess, a shareholder with law firm Vedder Price L.L.P. in New York.

Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said she recommends employers remove any questions about criminal history from their application forms altogether and move it to a later stage, such as after the job interview or upon a conditional offer of employment.

Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said, “I would also document in your policies why certain convictions, certain types of criminal history” would disqualify a job applicant, he said.

He also suggested that employers document that the individualized assessment has been conducted, “so that if you’re ever charged by the EEOC, you have a record to show you went through the process the EEOC is asking you to go through.”

“Try to make sure there’s a connection between a demonstrable job requirement, and any restrictions that (the employers) are putting in place with respect to criminal history,” said Marc A. Mandelman, senior counsel with law firm Proskauer Rose L.L.P. in New York.

Hotel employers, for example, “might assess the criminal history differently for a banquet employee than they might for someone who brings your tray up to your room for room service, because there’s more opportunity to commit crimes” in the latter case, said Sheila B. Gladstone, chair of Austin, Texas-based law firm Lloyd, Gosselink, Rochelle & Townsend P.C.’s employment law practice group.

She added, however, “I still believe that employers should try to learn as much as they really can about people before they hire them, so they know what they’re getting into. But don’t automatically exclude people” based on a criminal history.

John R. Cavalier, an associate with law firm Cozen O’Connor P.C. in Philadelphia, stressed the need for training. It is easy to put a policy in place, he said. The problem arises when it is not followed either intentionally, or because of a failure to provide training on its implementation. “A policy is just a piece a paper if nobody knows what it means or how to follow it,” he said.

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Preparing For a Divorce: The Plan.

Posted on September 9, 2012 by Lina Maini

It’s hard to imagine planning for a divorce as one is usually in the emotional process of the marriage split up and not focused on the financial aspects.  Considering that money is the number two cause of divorce in the U.S., perhaps the marriage’s economic condition needs stronger monitoring throughout to ensure that foundational post remains strong.   (In order, the 10 leading causes of divorce is American are: 1. Lack of communication, 2. Money, 3. Cheating spouses, 4. Wrong expectations, 5. Lack of commitment, 6. Addictions, 7. Sex, 8. Mid-life crises, 9. The little things — lack of courtesy or concern for a partner and 10. Societal causes, i.e., the ease with which divorces are granted, thereby discouraging couples to work out their marriage. Source: The Divorce Guide.)

But if you have arrived at the point of no return within the marriage, ensure that you do as much as possible to secure your financial future.

1. Secure funds for attorneys, other professionals and the divorce itself.  Plan to have enough funds on had to pay these professionals and your living expenses for at least three years.,  A divorce can occur within a much shorter time period; it can longer.  Be prepared.

2. Hire an attorney.  Do not try winging a settlement with your intended ex by yourself. Especially if you are an attorney.  Rarely does a divorce come as a surprise for either partner and each party is going to naturally view what they feel they are owed from the marriage to benefit oneself.  Divorce is complicated and requires a dedicated and experienced profession who is not emotionally tied to the matter.

3. Collect financial documentation.   Gather bank statements, tax returns, brokerage account statements, credit card statements, real estate documents, mortgage applications and contracts, documents related to major purchases, wills and trust information, copies of online account statements  with banks or credit cards, go online and get all of the account statements, check copies, and deposit tickets.  While this may appear to be a massive undertaking (and it is), it will prove invaluable during the divorce process.  Knowledge is power.

4. Make lists of all known assets, liabilities, real estate, and business interests.  You require as complete an accounting as possible in a divorce.  Your memory or what you think you own are generally not as reliable as a thorough list of these financial interests.

5. Open accounts only in your name. Open new bank accounts and credit cards, preferably at banks or companies which do not have your joint accounts. Use completely different and unknown to your soon-to-be ex passwords.

6. Monitor your credit. Obtain your  credit report and review it for accounts you may not know about.  Look specifically at the bottom of your credit report to determine which companies have made inquiries into your rating.  This may give you an indication of other expenses or assets that your spouse secretly secured.

7. Get a secure mailing address. You will need a secure address to send the statements for your new accounts, to receive correspondence from your attorney, or to receive other important communications. Do not allow these papers to come to your house, as your spouse could intercept them.  A post office box is probably the best option because it will be secure and private.

8. Change beneficiaries and decision-makers. You should change your will and your healthcare power of attorney so that your spouse does not have decision-making capabilities. You should change the beneficiary on your life insurance policies and financial accounts.

9. Don’t assume that you will get half of everything in the divorce. State laws vary, and the concept of equitable distribution doesn’t necessarily mean an even split. Pay attention to your attorney’s advice and be prepared to negotiate assets and liabilities with your spouse.,

10. Prepare yourself for a lengthy process. Your divorce might be done quickly but it might not.  You should be prepared for the long-term scenario as it will allow you to negotiate from a position of strength as opposed to financial duress.  Prepare a plan of action with your attorney and other professionals at the outset of the divorce process and negotiate a payment plan at specific benchmarks so that all parties are prepared to see the divorce through to a fair and equitable splitting of the assets.

And finally, emotions will run high on all sides in a divorce but under no condition should you ever take it upon yourself to follow your spouse to determine activity or location of hidden assets, resort to any sort of illegal wiretapping, hacking into smart phones or PCs or participate in any sort of document tampering. Prepare a timeline of important financial events in your marriage (first house, vehicles, pension participation…) and leave it to your attorney to locate these assets.

A divorce is difficult for all parties involved.  Keep your sites on your future and ensure that you are surrounded by people with the same focus.

Our operatives: Street smart; info savvy.

As always, stay safe.

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How To Detect Hidden Assets & Cash in Divorces.

Posted on June 19, 2012 by Lina Maini

Getting Divorced?  Learn the techniques that soon-to-be exes can use to hide income and assets.

Be aware.  It is common for one spouse to usually control the family assets, income, investments, be the majority breadwinner, make the decision on how money is spent and most importantly, in charge of financial documentation.

If you are the spouse with lesser financial involvement in the marriage look for these schemes or occurrences, potentially signaling that your spouse is hiding money and assets.

Stashing Cash

1 Large ATM withdrawals without adequate explanation of how the money was spent.

2. Money hidden in unusual places (garage, shed, basement or if your spouse is self-employed, at his/her place of work).

3. Your spouse is suddenly making no-paper “loans” to trusted friends or family.

4. Look for signs of a safe deposit box.  (You can also ask the branch manager, if you have a good relationship with him/her. They may give you information on other independent accounts your spouse may have opened.)

5. Depositing checks but withdrawing a large portion of the check amount.

6. The sale of assets but no deposits to known accounts.

Hiding Assets

1. Purchasing items that are easily overlooked, e.g. tech toys, small pieces of art, valuable home decor items…

2. Under-reporting income on joint filings, thereby making you a party to fraud (decreasing the likelihood that you would report this criminal act).

3. Secretly having an employer withhold earnings, bonuses or commissions.  (Be particularly aware to look into this if there will be a possible child support or alimony request.  Once the action is settled based on the lower reported income, it becomes very difficult to obtain a court order changing the amount of child support or alimony.)

4. Overpaying creditors.  Many financially savvy spouses will intentionally overpay creditors (e.g., the IRS), knowing full well that they will receive a refund when requested, post-divorce.

5. Placing accounts in others’ names.  It becomes very difficult to argue a “gift” that a spouse gives to a child or other family member is impermissible.

6. Giving assets to family members or trusted friends at well below market value.

7. Starting a “business” with a trusted person; thereby excluding it from joint assets.

8. Hiding jewelry and other small valuables in unusual places (such as the featured “socket safe”).

There are many more scams out there that truly vindictive spouses will attempt during a divorce. Make sure you hire a reputable forensics accountant.   The expert’s fee is well worth your piece of mind and quite often, large sums of hidden money and assets.

In a divorce situation, when you are looking out for number one, you are making the right decision.  If all things had been fair to begin with, the split-up would not be in the making.

Our Operatives: Street smart; info savvy.

As always, stay safe.

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EEOC Effectively Bans Employers From Asking Employees About Their Criminal Background.

Posted on May 1, 2012 by Lina Maini

We’re pleased to this week bring you a new article by contributing writer and seasoned legal field professional, Suzanne Reisig Olden.

The EEOC To Employers: You Can’t Ask An Ex-Con/Potential New Employee About His Criminal Record.

By Suzanne Reisig Olden

Last week, the Equal Employment Opportunity Commission  (EEOC) enacted legislation that restricts the ability of employers to ask a prospective employee if s/he has a criminal conviction record.

Specifically (and from the EEOC site):

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. The Guidance consolidates and supersedes the Commission’s 1987 and 1990 policy statements on this issue as well as the discussion on this issue in Section VI.B.2 of the Race & Color Discrimination Compliance Manual Chapter. It is designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.

How is Title VII relevant to the use of criminal history information?

There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).

First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Aside from “Because we can.”, what is the logic behind this new law?  Citing this as one of its primary reasons, the EEOC stated that according to recent studies, 25% of ex-felons are of African-American background; comparatively, twice the US population of that specific demographic.

The NAACP is applauding the decision.  “The Equal Employment Opportunity Commission’s decision will help balance the playing field for job applicants with a criminal history,” NAACP President Benjamin Todd Jealous said in a statement immediate following the EEOC’s new rule. “Our criminal justice system is deeply biased against people of color, and that disparity can carry over to the job search. These guidelines will discourage employers from discriminating against applicants who have paid their debt to society.”

The NAACP enjoys a rich history in, and well deserved reputation for, forwarding the equal application of civil rights, that includes those of all people, but I will respectfully disagree with Mr. Jealous on this issue in that this new EEOC legislation is the wrong call on hiring practices.

(This ruling is offensive on its face and has a massive negative impact on employers of all races, gender, ethnicity…, as it presumes that private businesses are hiring by race as opposed to the ability to do the job and in compliance with hiring criteria already set forth by the EEOC and many other HR-related agencies.  “Coding” legislation is just another smoke and mirrors governmental overreach and as usual with overly invasive bureaucratic oversteps, hurts the majority of people who it affects.  Playing the race card is NOT a function of the EEOC and I’m not going to, at all, address that disingenuous aspect of the rationale for the new legislation. )

I will, however, question the legitimacy of this ruling in light of (i) existing employment regulations that already protect prospective employees from unfair hiring practices and (ii) the impossibility of complying with this new mandatory hiring guideline and, simultaneously, the 59-page FTC Red Flag law passed in 2010 that boils down to holding an employer responsible for safeguarding client, consumer and patient information against fraud.  Specifically, Red Flag dictates that employers can only make consumer information available to “essential, need to know” employees. The reality is that,  in general and as a good business practice, employers have need-to-know policies in place but they exist on a very fluid plane.   This is particularly true in small to medium-sized companies wherein one or several employees usually take on more work than the position for which they were hired. (Which brings to mind the question, “If an employee is to be promoted to a position that includes previously restricted company/consumer information, can the background of this employee then be checked??  The absolute “need to know” criterion only works well in the military and for obvious reasons.  Soldiers are trained to comply with orders and given their work/lifestyle environments, understand and respect the underlying premise for maintaining information to the level for which they are qualified. They also understand and respect each other to not ask for details they know they should not possess.  The civilian world does not work with that uniformity, leave alone the civility of not prying and then there is the potential of being accidentally and or incidentally exposed to protected information.)

Certain industries are exempt; hypocritically, the majority of federal jobs. Such as most EEOC positions.

Moving along to the actual meat of the new legislation, the EEOC has graciously extended their “Employer Best Practices” suggestions to help civilian employers in following the rules from which they themselves are self-excluded:

  1. Eliminate policies or practices that exclude people from employment based on their criminal record.  (Every position in any company will expose all employees to client, customer or patient information.  The reality is that the house/office cleaner, the CEO, and all of the people in the middle will have access in some form or fashion to this data.  Inevitable.)
  2. Train managers and HR employees about the new Title VII restrictions.  (Okay…)
  3. Develop a “narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.  (This piece of advice is deceptively suggestive of a good method of noting compliance.  Employers know the opposite is true.  Narrow policy definitions will only aid defense counsel, if a lawsuit situation were to arise, not indicate the thoroughness of hiring practice.)
  4. Identify essential job requirements and the actual circumstances under which the jobs are performed.  (Does Staples sell crystal balls?)
  5. Determine the specific offenses that may demonstrate unfitness for performing such jobs.  (It’s Human Resources, not CSI.)
  6. Identify the criminal offenses based on all available evidence.  (Welcome to the fictional L&O 27th NYPD Precinct.)
  7. Determine the duration of exclusions for criminal conduct based on all available evidence.  (Again, Human Resources.  Not forensics psychology.)
  8. Include an individualized assessment.  (That’s what employers have hired and not hired boxes on interview records.)
  9. Record the justification for the policy and procedures.  (Simply, from the employer, “Because I paid for all of this and it is my knowledge that feeding my family is a good thing and expected.  The other people who work here share this intuition.”)
  10. Note and keep a record of consultations and research considered in crafting the policy and procedures.”  (Can the EEOC spare interns for the book?)

In other words, identify (guess) and justify (guess) which crimes can be excluded and keep copious notes to CYA.  Most importantly, remember that when asking questions about a criminal past, you (as the employer) have to limit your questions to only those that would affect the job.  Add Best Practices #11: Locate and possess a four-leaf clover.

These “tips” are not helpful.  To comply with this overreaching new rule, employers would have to hire a dedicated HR person/team (depending on company size), monitor every employee and have a good employment attorney on redial or the funds for in-house counsel.

How much litigation will restricting conviction record questioning open up for private business entities?  Is the EEOC ready to accept liability when an “uncheckable” employee burns down the store, robs the safe or injures a co-worker?  This major misstep by the EEOC is a dangerous version of “Don’t Ask, Don’t Tell”; the new “Can’t Ask, Won’t Tell”.  (The latter’s acronym is phonetically ironic.)

CAWT is bad policy.  Should employers give ex-con’s a chance? Sure, if and only if  they are comfortable with hiring that person and willing to assume responsibility for the employee’s actions.  The only way an employer can rationally make that decision is by being informed. The “Have you ever been convicted of a felony?” question must have the ability to remain on an employee questionnaire.  The EEOC deems it perfectly reasonable for employers to ask a potential new hire for his/her credit report, which is truly intrusive (albeit, necessary for many positions).  Following this train wreck of bloated government logic, it’s okay to find out how much money an employee has at his/her disposal, but not how s/he got it if it looks hinky.

Employers must be freed of these types of, at best, misguided legislated hiring policies.  The EEOC cannot decree that employers must blind-hire.  That is the pared down real objective of this new mandatory hiring guideline.

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Who Am I Dealing With?? Watching Your Back(ground) Checks.

Posted on April 23, 2012 by Lina Maini

Now that we are past the literal dogfight world of last week’s ugly politics, my concentration falls back to tangible information for the legal (and corporate) professional regarding background searches.

Lately, we are requested quite often to research the backgrounds of prospective employees, partners and corporate entities.

With our now internet-enabled reach (not just to locate web-based information but to network with other investigative specialists), we are able to access nationwide data as to the personal, work and credit backgrounds of potential new hires.  We have gained the ability to likewise perform these background search services on a global basis for those seeking new business alliances, products and services.   Today, given the mobility and globalization of people and companies, often the backgrounds of the those with whom we might form potential partnerships are, at bes,t based on hazy anecdotes and very basic, publicly available information.  Unfortunately, these types of non-professionally investigated histories can easily be manipulated, i.e., by net savvy perception managers.  For this, and many other reasons (personal security, access and information verification, to name several) we will always steer people away from the alleged “free” searches available online.  If one is serious about researching a potential employee or partner’s background, get it done right — by an experienced, highly rated private investigator.

Below we outline several types of background searches, their information yield and best applicability situations.

Basic Background Check, Individual:

Primary Uses:  Prospective new hires, subject identification, tenant verification.

Should yield:

  • DOB & Alias Names
  • SSN Verification
  • Address History (20 yr)
  • Address Summaries
  • Others Residing w/Subject
  • Possible Phone #s Associated w Subject (landline/mobile)
  • Email Addresses
  • Nationwide Criminal Profile (Includes State & Nationwide Criminal Databases, National Warrant Databases, Department of Correction Records, Nationwide Sex Offender Check)
  • Property Transactions
  • Civil Judgments, Tax Liens, & Evictions
  • Bankruptcies
  • Registered Vehicles *
  • DL Information *
  • Voter Registrations
  • Hunting & Fishing Permits
  • Professional Licenses
  • Possible Work Affiliations
  • Relatives & Associates

*In available states.

Recommendation: If the new hire will have access to accounting and or client information, we also suggest obtaining a release to conduct a standard asset search.

Comprehensive Background Check, Individual:

Primary Uses:  Prospective partners, major settlement/award cases, potential private care (nannies, housekeepers, home nursing aides…) and personal/business financial services providers (attorneys, accountants, brokers…)

Should yield:

  • All of the above plus :
  • Credit check (obtain authorization)
  • Financial background (to include but not limited to assets, banking information,  involvement in fraud investigations)
  • Professional background (to include but not limited to being a named party in any legal action, professional sanctions, industry rating)
  • Verified (in person/voice) and thorough reference checks

These are basic searches to conduct in the above referenced circumstances.  Of course, no two files will ever be the same and each search should be geared towards individualization.  A good professional investigator will know where to look and when to dig deeper.

As always, stay safe.

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Asset Searches – How Far is Far Enough?

Posted on August 15, 2011 by Lina Maini

Generally, an asset search investigation is requested to determine a subject’s tangible assets (or, quite often, to satisfy the court that there are no other recoverable assets beyond policy limits, albeit the injuries sustained may be valued at a much higher award).

Balancing the public’s privacy with informational needs is challenging but ultimately, very doable.

A basic checklist for the legal professional is to:

1. Relay the need-to-know reason to your investigative specialist. A business partnership dissolution v. a medmal case requires a very different focus.

2. Obtain as much lead information from your client as possible. The more information the investigative specialist is given, quite often, the more she can return and in a more cost-effective manner.

3. Local is often more reliable than generalized information. The first step in recording any asset begins at a local level. Many information companies provide “nationwide” information, which can widen the asset search scope. The drawbacks to commencing an asset search on a nationwide basis first, however, are

a) record update lag (delays up to 18 months),

b) incorrect data collection errors (many nationwide databases can return results only with exact names – misspellings will often register “no hit” status) and

c) incomplete information.

So now you, the attorney,  have the subject’s tangible assets information. The subject owns a Chelsea duplex, a home in Hyde Park and a boat docked at the Bayside Marina. The next step, from an investigative standpoint, can range from determining if the subject has any liens, judgments, bankruptcies and other pending litigation to a full criminal background check.

In answer to our premise question then: Asset Searches: How Far is Far Enough? Assess the potential settlement/judgment and the likelihood of the subject having seizable assets. For a large settlement/judgment, request a full background and asset search (certain convictions can prohibit a person from holding officer position in a business); medium settlement/judgment: basic background and asset search and for a small judgment: a basic asset search.

BNI Operatives: One step ahead.

As always, be safe.

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The FBI – Behind the Dark Suits, N-Dex

Posted on August 8, 2011 by Lina Maini
United States criminal justice system flowchart.

Image via Wikipedia

There are approximately 18,000 law enforcement agencies across the United States – local, state, tribal, and federal— generally working independently,  each gathering clues, conducting interviews, solving crimes, and generating reports and information. Within their jurisdictions.

So the 2011 question is: in an age supporting a very mobile and transient number of people, obviously crime will cross many jurisdictions, how can we get these 18,000+ agencies connected rapidly and in an automated environment to share their information…not only to catch criminals and terrorists but also to spot crime trends and patterns and help prevent attacks?

After all, beyond a few national criminal justice systems like the National Crime Information Center (NCIC) and the Integrated Automated Fingerprint Identification System (AFIS) , most information-sharing between police agencies today is still done on a case-by-case basis or through local and regional information systems.

In a three-year project (from 2008 – 2010), the FBI has been working on just such a system that incorporates all of the information maintained by all of these American law enforcement agencies and compiled this data into a single registry – the Law Enforcement  National Data Index, N-DEx.  N-DEx includes all of the traditional “hard” data: criminal backgrounds, parolee statuses, wants/warrants and can deliver highly effective reports connecting people, places and events by various methods such as MO comparisons, crime trends and familial DNA comparisons, to name several techniques.

It is the literal equivalent of each law enforcement agency, regardless of size, having its own CSI lab, forensics psychiatrist, anti-terrorism expert and other crime solving capabilities generally affordable only by large cities and the national l.e. organizations. N-DEx brings this  broader scope, more tightly focused physical and psychological database to a one sheriff town and to the Homeland Security Administration. The final implementation of N-DEx occurred quietly at the end of 2010. It is this tireless work by our security and law enforcement expert that allows the FBI (and now many others in the field)  to track and more often than not, stop terrorists, cult members and violent criminals before they commit additional heinous crimes.

It is expected that the N-DEx will become available to state and local district attorneys, (all need to know requests are recorded) and may be accessed via FOIL, albeit, for attorneys and private investigators, probably with highly redacted/limited information and very specific rules monitoring the N-DEx’s use.

That this crime information and trend data has finally all come together in one registry is a good thing.  Too often, too many criminals have slipped through the cracks, knowing how to work the “systems” and normal time delays.  Now, we’ll have the ability to access relevant aggregated information to solve cases quickly and effectively and aggressively deter potential threats.

BNI Operatives: A step ahead.

As always, be safe.

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