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CRIMINAL RECORD
OVERVIEW
A company that does not conduct a
sufficient background investigation can be subject to a "negligent
hiring" lawsuit. An employer can be sued as a result of actions
committed by an employee who would not have been hired had a proper
background investigation been conducted. The most important aspect
to consider when developing a background investigation program for
your company is to formulate a criminal record search that meets
due diligence, industry standards and best practices. Prominent
cases in the media include an apartment superintendent who entered
the apartment of a tenant with a passkey and a service technician
who forcibly entered the home of a customer. Both instances
resulted in the murder of the occupants.
If a pre-employment criminal record search had been conducted on
each of the individuals, records would have shown a history of
violent behavior that would have precluded them from their
occupation. Please visit www.sueweavercause.org to learn more about an organization that is bringing
awareness to the issue of pre-employment criminal record research.
The occupations previously mentioned obviously warrant criminal
research. Case law suggests that an employer can be sued for
actions by an employee in any occupation that has contact with the
public or fellow employees indicating a need for criminal research
on prospective employees. While a claim of negligent hiring most
often relates to prior criminal history, it can also extend to
failure to contact previous employers who could provide an adverse
history on an applicant. A TABB INC. representative is available to
discuss best practices for your industry and advise you how to
develop a program that will meet your requirements and prevent a
claim of negligent hiring.
Negligent hiring lawsuits
are rare and are only one of many concerns of which to be aware
when developing a background investigation program. Hiring
individuals who have a serious criminal history can be disruptive
to the workforce, can result in
employee theft, reduced productivity and morale. Criminal record
research is relatively quick and inexpensive. Implementing a
program which includes a comprehensive criminal research program
will provide a clear picture of the applicant. A justifiable reason
cannot be found why you should not have a program in
place.
What background vendors don't want you to
know about the criminal record research
industry.
Procedures to conduct a criminal record check
varies from state to state, and the availability of the information
is constantly changing. At this time, a statewide criminal record
research is available for employment purposes in thirty-one states.
This article will concentrate on the general availability of
criminal records nationwide and the terminology to assist you with
your hiring decisions.
FELONIES AND
MISDEMEANORS
Companies often ask on an application, "Have you
been convicted of a felony or misdemeanor?" There is no universal
interpretation of these terms in all fifty states. Each state
defines their own criminal guidelines and determines the
seriousness of a particular act. A few states no longer use the
term felony and misdemeanor to describe a criminal act. New Jersey
is one such state. Check the statutes in your state to obtain the
correct terminology and to determine how the question should be
phrased when asking the applicant to divulge if they have a prior
criminal record. If you ask the applicant if they have a criminal
record, a program should be in place to confirm the applicant's
response.
Felonies
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Felonies are the most serious crimes and are
generally punishable by sentence of more than 365 days in jail. The
term of confinement or the seriousness of the incident to define a
felony may vary by state.
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Felonies are also referred to in some states as an
indictable crime since the prosecutor must obtain an indictment on
the alleged charges from a grand jury to proceed with the
case.
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Examples of felonies include murder, sexual assault,
assault causing serious bodily injury, burglary, serious charges of
drug possession, drug distribution, weapons charges, fraud and
larceny above a specified monetary amount.
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Approximately two percent of the adult population has a felony
conviction.
Misdemeanors
- Misdemeanors are crimes that are generally
punishable by sentence of 364 days in jail or less although in some
states, a misdemeanor may result in a jail of more than one year in
jail. Again, there is no universal sentencing guideline to define a
misdemeanor across all fifty states. The seriousness of the
incident to define a misdemeanor will vary from state to
state.
- Examples include theft below a monetary
threshold, simple assault, minor drug possession offenses,
harassment and serious motor vehicle violations.
- Defendants often plead guilty to a lesser
charge. To determine if the final disposition of a case maybe the
result of pleading to a lesser charge, further research can be
conducted through the court. The indictment or complaint will
contain specific information regarding the criminal act and can be
obtained from the court.
STATEWIDE VS. COUNTY
SEARCH
Another area where TABB INC. differs from other
background investigation vendors involves the criminal record
research process. Conducting the proper criminal record search is a
primary concern. Statutes governing criminal record research and
reporting of criminal records vary by state. It is the
responsibility of the background investigation company to
understand a criminal record research process in each state and
conduct the most thorough and comprehensive criminal record search
allowable by law through a primary source. Unfortunately, there is
a great deal of misinformation regarding criminal record research
as it relates to the background investigation process. Too many
background vendors conduct criminal record checks using cheap
proprietary databases that are incomplete and inaccurate instead of
conducting criminal record research through primary sources. This
is a very serious problem. Proprietary databases are generally
compiled from public sources such as correctional and sex offender
records that are available from each state on the Internet. This
data is limited and does not include all criminal records an
individual might have. Proprietary databases provide instant
results and they are inexpensive. Unfortunately, cheap is
expensive. Proprietary databases do not meet due diligence
standards and they are actually very dangerous. They are not a true
criminal record check. TABB INC. only conducts criminal record
research through the primary sources, not proprietary databases.
Primary resources for criminal record research include the specific
state agency set forth by statute for the purpose of conducting
statewide criminal record research or the county court.
Thirty-six states have provisions to search criminal
records for employment purposes on a statewide basis for felony and
misdemeanor convictions. In the remaining fourteen states, criminal
records can only be researched on an individual county-by-county
basis. In the case of a county search, the only records available
will be those criminal cases heard in the county that was checked.
A crime that occurred in another county will not be
found.
A TABB INC. representative is available to discuss
the criminal record research process.
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