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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.
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?" If you ask the
applicant this question, a program should be in place to confirm
the applicant's response.
Felonies
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Felonies are crimes that are punishable by
sentence of 365 days or more in
jail.
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They are also referred to in some states as
indictable offenses since the prosecutor must obtain an indictment
on the alleged charges from a grand
jury.
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Examples of felonies include murder, sexual
assault, assault causing serious bodily injury, fraud, larceny,
burglary, serious drug possession, drug distribution, weapons
charges.
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Approximately four to six percent of the
adult population has a felony conviction.
Misdemeanors
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Misdemeanors are crimes that are punishable
by sentence of 364 days in jail or
less.
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Examples include theft below a monetary
threshold, simple assault, drug possession offenses, harassment and
serious motor vehicle
violations.
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Misdemeanors are also referred to as
Disorderly Persons
Offenses.
While the definition of a felony and
misdemeanor appears simple, confusion can and will occur for those
who are unfamiliar with the judicial system and the information
that is available through the state police or the county criminal
court.
Statewide Search vs. County
Search
A statewide criminal record check is
available in thirty-one states for employment purposes. In these
states, you will have the option of conducting either a statewide
search or county criminal record search. The information available
in a statewide search will include felony and misdemeanor
convictions that occurred in all of the counties in that state. In
the remaining nineteen states, a statewide criminal record search
is not available for employment purposes, only a county criminal
record search may be conducted in these states. Available
information will include felony and misdemeanor convictions of
cases that occurred only in the county that was searched. Please
contact a TABB INC. representative to determine if
a statewide search is available for the states you wish to be
researched.
The applicant's date of birth is always
required to conduct a criminal record check, and this is one area
of concern for Human Resource professionals. A search is usually
conducted after an offer of employment is extended to an applicant
pending the results of the background investigation and the
applicant's date of birth is obtained. We at TABB INC. have a
solution for clients regarding the requirement of a date of birth
to conduct criminal research. TABB INC. conducts a two part
background investigation in these circumstances, first, our office
conducts a background investigation consisting of employment
verification, education verification and any other areas of
concern, such a obtaining a driving record or credit history. Once
Human Resources has the results of this preliminary background
investigation, a job offer is made and when it is accepted by the
applicant, a date of birth is obtained allowing our office to
conduct criminal record
research.
When designing a policy to conduct criminal
record checks, an employer should be aware that they must comply
with the laws in the state where they are operating and the Federal
Fair Credit Reporting Act. Criminal conviction records are
disproportionately higher among certain populations of the
community. Employers must take this into consideration when
developing a policy so that they do not discriminate and violate
the Equal Employment Opportunity Commission. Prior to declining
employment due to a criminal record, the employer should be aware
that a sound business reason not to hire an applicant based on a
criminal record must be shown. It is the duty of every company to
provide a safe working environment, however several factors should
be reviewed before declining employment based on a criminal record.
One consideration is the nature of the job in which the applicant
will be employed, the nature of the conviction, how long ago the
crime occurred and can the applicant demonstrate that they have
been
rehabilitated.
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