The Background Investigator November 2019 Edition by Steven Brownstein

Volume 19 Number 11 November2019

Since the beginning of our industry.

Do we keep up with the Statesâ&#x20AC;&#x2122; new record laws?

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Denton County To Make Civil And Family Court Records Available Online Denton County records are going digital. Denton County commissioners voted to make civil and family court records available to the public via a digital portal when they agreed to pen an agreement with Tyler Technologies on Tuesday night. The item was placed on the agenda by Precinct 1 Commissioner Hugh Coleman, who is also a lawyer. “In order to become more transparent and in order to provide the public with better services and facilitate open government, I’ve always thought it was a good idea to put the court records that are in our county and district courts on the internet,” he said. Both David Trantham, the Denton County district clerk, and Juli Luke, county clerk, spoke at the meeting, explaining that because of the existing online filing system, the move would be relatively painless for staff. “We think this is the best solution to make records available,” Luke said. The agreement does not cost the county any money, and reduces costs of records for the public. Currently, records cost $1 a page. The new system reduces the cost to 10 cents a page. Tyler Technologies’s system is already used by Dallas County, and Collin County officials are also working with the company for digitized records.

sharing sensitive information, including their social security numbers (60% stating they believe this data is being shared), employment status (56%), paid When attorneys file docu- income tax (51%) and any ments online with the coun- criminal history (64%). ty, the onus is on them to However, despite citizens' make sure all sensitive information is redacted, Tran- broad acceptance of data sharing among agencies, tham said. Additionally, staff comb through filings many respondents registered concern about how to make sure there aren’t any slip-ups and that all of these agencies are protecting their data and their prithe documents are high vacy. The most common enough quality, he said. concerns were a lack of clarity about how the gov“There’s no 100 percent ernment would use the data guarantee with anything, but at the end of the day, I (69% concerned), infringethink it comes down to ac- ment on privacy (68%), cess to public records and lack of protection from security breaches, even if acmaking it easier for the cidental (66%), an external general public to see things,” he said. “We’re in cyberattack (65%) and access to their data by unauthe 21st century now, thorized government offiwhere everybody has a computer in their homes for cials (63%). Of citizens the most part, and now they who expressed concern about at least one type of could log in and see that data sharing, more than half without having to drive down to the courthouse to (53%) reported that they do not trust the government. do it.”

as microsegmentation, encryption and dynamic isolation to limit the access to this data by those who are unauthorized to see it."

they need from state and local government agencies," said Unisys Chief Information Security Officer Mathew Newfield. "But our survey shows that The survey also found a governments must keep broad preference among all taking steps to ensure secucitizens for online options rity and privacy as they when engaging with govmove forward in impleernment agencies, with menting these services – 88% saying they prefer us- steps that will be essential ing a computer, tablet or to their success." mobile phone to engage with government agencies To download a copy of and services. But preferthe survey report, go to ences varied depending on www.unisys.com/digitalthe type of government ser- government. vice requested. For example, 77% of respondents said they prefer to go online to look up inforWho Did What mation about government In the HireRight services or infrastructure, but smaller percentages - GIS said they prefer an online option to apply for govern- Merger or Buy-Out? ment benefits (46%) or apOn 25 May 2018, the ulyiply for building permits or mate parent company Cortitles (38%). porate Risk Hildings I, Inc. ("CRH") signed a definitive In addition, the survey found that citizens who pre- agrrement to merge CRH and its Hireright business, fer using a mobile device with General Information want a single point of acServices {"GIS") acquiring "While U.S. citizens are cess to multiple governSurvey - More all the outstamding equity aware that government ment agencies, with 60% Than Threeagencies share their person- registering a preference for of CRH in an all cash transdata with each other and a mobile optimized website action. Quarters Of U.S. alappear to accept that as a and 49% for a single app. Citizens Accept fact, our survey results tell Relatively few (24%) ex- This transaction closed on 12 July 2018, bringing pressed a preference for State And Local us that the government HireRight and GIS under agencies holding this infor- different mobile apps for Governments mation need to do more to each agency they contact or common pwnership Gengive them confidence their engaging with government eral Atlantic, a leading Sharing Their data and their privacy will services via their social me- global groth equity firm, is the majority owner of the Personal be protected," said Shawn dia accounts (19%). new combined entity. Over Kingsberry, vice president Information and director, Government "U.S. citizens clearly de- time, the combined compny will operate under the Across Agencies Solutions, Unisys. sire the convenience and HireRight brand. "Agencies can address efficiency of digital govMost U.S. citizens these concerns through data ernment tools that make it acknowledge and accept protection solutions that easier for them to get the Contact: that state and local govern- leverage technologies such information and services Steven Brownstein ment agencies share their Box 10001 personal data, even when it Saipan, MP 96950 comes to personal information such as criminal +1-670-256-7000 records and income data, findcrime@thebackgroundinvestigator.com according to a new survey conducted by YouGov and sponsored by Unisys Corporation (UIS). However, the survey found they remain concerned about the security of the data.

names of minors and Social Security numbers wouldn’t be visible in the system, a concern of previous clerks resistant to digitization.

There isn’t a clear timeline for implementation of the new system. Additionally, it won’t include criminal records initially because The survey of nearly criminal documents require 2,000 (1,986) U.S. citizens more redaction and reliving in eight states found strictions. that more than threequarters (77%) accept that Commissioners discussed their data is being shared what measures would be in between government agenplace to make sure that per- cies. Most citizens believe sonal information like government agencies are

Meet Steven Brownstein On LinkedIn

names of minors and Social vada, Oregon and WashingSecurity numbers wouldn’t ton. be visible in the system, a Under the Ninth Circuit's concern of previous clerks interpretation, employers resistant to digitization. should also know that backWhen attorneys file docu- ground checks shouldn't ments online with the coun- include later events such as dismissals, even if they are ty, the onus is on them to make sure all sensitive in- within the seven-year winformation is redacted, Tran- dow. tham said. Additionally, "At issue in the [Ninth staff comb through filings Circuit case] Moran v. The to make sure there aren’t any slip-ups and that all of Screening Pros was the appropriate measuring period the documents are high for reporting certain crimienough quality, he said. nal records that did not result in a conviction," said “There’s no 100 percent Pamela Devata, a partner in guarantee with anything, but at the end of the day, I the Chicago office of Seythink it comes down to ac- farth Shaw. cess to public records and Specifically, the court was making it easier for the deciding whether the seven general public to see things,” he said. “We’re in -year period ran from the entry date of the plaintiff's the 21st century now, criminal misdemeanor where everybody has a computer in their homes for charge, or from the date the most part, and now they that charge was dismissed four years later. could log in and see that without having to drive "This interpretation of the down to the courthouse to reporting rules is consumer do it.” -friendly in that it narrows the reporting window and gives specific guidelines of SHRM Says how to treat a non"FCRA’s Seven- conviction criminal charge was ultimately disYear Reporting that missed," said Timothy J. St. Window Begins George, an attorney in the with Charge, Not Richmond, Va., office of Troutman Sanders.

2004—in violation of the FCRA and the California Investigative Consumer Reporting Agencies Act.

tact with the criminal justice system. He also noted that dismissals do not necessarily equal innocence but can also signify that A district court dismissed someone has completed the claim that the screening probation or struck a plea company violated the deal. FCRA's seven-year rule, finding that the reporting period for criminal charges began on the 2004 date of Straightline dismissal, not the date of International’s entry. Is the only The Ninth Circuit disagreed, holding that the reporting period for criminal cases begin on the date charges were filed. The court "went further and held that the dismissal of a charge does not constitute an adverse item and may not be reported after the reporting window for the charge has ended," Devata said.

Marianas search that gets you hits that even a police clearance misses. We are SAIPAN

The court said that a dismissal is only adverse in that it discloses the previous charge. "Reporting the dismissal alone would reveal the existence of the charge, which after seven years, constitutes outdated criminal history information," wrote Judge Milan D. Smith, Jr., in the court's published opinion. "A related later event should not trigger or reopen the window, as the adverse event Dismissal" already occurred. To hold St. George explained that otherwise, thereby allowing The seven-year limit for the appellate court reversed this information to be rereporting criminal charges the district court's holding ported through disclosure on background checks be- that it was the charge's dis- of a dismissal, would cirNO DELAYS gins when the charges are missal that triggered the cumvent Congress's intent Not a Police filed, not when they're dis- seven-year reporting period to confine adverse criminal missed, a federal appeals under the FCRA. "The information to a seven-year Data Base Search court recently ruled, mean- court provided a lengthy window." Canada ing employers should know analysis finding a charge is Provincial Courts that criminal charges exan adverse event upon enIn a lengthy dissent to the Criminal Research ceeding the seven-year lim- try, so it follows that the majority's interpretation, Call 1-866-909-6678 it shouldn't appear in emOr Fax 1-866-909-6679 date of entry begins the re- Judge Andrew J. Kleinfeld Straightline International ployment screens. porting window. That inter- stated that a dismissal is an Shortest distance between you and the courts pretation mirrors the opin- adverse item in itself beThe 9th U.S. Circuit Court ions put forward by the cause it reveals prior conof Appeals ruled May 14 Federal Trade Commission PUBLISHER that the measuring period and the Consumer FinanSteven Brownstein for a criminal charge runs cial Protection Bureau." from the date of entry raCONTRIBUTORS: Les Rosen, Dennis Brownstein, Phyllis Nadel ther than the date of dispo- The Case sition under the Fair Credit COVER PHOTOGRAPH: Baltimore, Maryland Courthouse Reporting Act (FCRA). The plaintiff sued The COVER PHOTOGRAPHER: The FCRA prohibits back- Screening Pros, which proSteven Brownstein ground screening firms vides tenant screening rePURPOSE: “Dedicated to pre-employment screenings everywhere” from reporting any arrest ports to property owners, record or adverse nonfor issuing a background The Background Investigator is published by Steven Brownstein, LLC, conviction information old- check report in 2010 that PMB 1007, Box 10001, Saipan, MP 96950. Phone: 670-256-7000. Copyright 2018 by Steven Brownstein. Some material in this publication must not be reproer than seven years. The 9th contained his criminal hisduced by any method without the written permission of the copyright holder. Circuit includes Alaska, tory—including a misdeSUBSCRIPTIONS: Toll free USA 1-866-909-6678 Arizona, California, Hameanor charge in 2000 waii, Idaho, Montana, Ne- which was dismissed in

77 More Courts In England And Wales To Close

The report reveals a surprisingly high number of courts are being considered for closure by HMCTS, Nearly 80 more courts in which reports to the MinisEngland and Wales are due try of Justice. A total of 77 courts are currently schedto close under a justice transformation scheme that uled to be shut down; until is falling behind schedule, a recently as many as 96 had been earmarked for closure. watchdog’s report has revealed. Since 2010 more than half HM Courts and Tribunal of all magistrates courts in Service (HMCTS) is three England and Wales have stopped hearing cases, forcyears into a £1bn programme of changes but is ing defendants, witnesses, police, lawyers and justices facing significant delays and failing to take into ac- of the peace to travel more than 50 miles in some cases count the experiences of to access local justice. A court users, the National further 133 tribunal, crown, Audit Office (NAO) has county and family courts warned. have also closed over the “HMCTS has made good same period. progress in reforming some services but it is behind where it expected to be and has had to scale back its ambitions,” said Gareth Davies, the head of the NAO. “The timescale and scope remain ambitious and [it] must maintain a strong grip if it is to deliver a system that works better for everyone and delivers savings for the taxpayer.”

Many courts sit idle because of cost-saving measures which have reduced the number of recorders, or part-time judges. Last week, Lady Justice Macur, the senior presiding judge, said maintaining the backlog of cases by not employing more recorders to hear waiting cases “was a political decision”. Eleven out of 18 courts at the Old Bailey, for example, were The modernisation programme will include an in- empty on Thursday. crease in the use of “virtual hearings” in criminal cases, The NAO’s report says with judges and magistrates savings to date of £133m might not all be attributable dealing with defendants to the changes. The courts from a police station or service can only track cerprison using a video link. tain savings, such as those

related to property costs, the report adds. The report says HMCTS has not given sufficient consideration to concerns about access to justice. The Labour MP Meg Hillier, the chair of the public accounts committee, said: “A government transformation plan off-track and scaled back is a broken record. HMCTS has not bucked this trend. It must ensure that further reforms, particularly those that include closing more courts do not mean citizens lose access to justice.” Penelope Gibbs, the director of the campaign group Transform Justice, said: “Is our court closure programme just an exercise in selling off the family silver? More than half our magistrates courts have been closed since 2010 but this NAO report reveals for the first time that the government plans to close around 80 more courts. The funds generated will be used to take justice out of the courtroom and on to Skype and mobile phones. But, as the NAO points out, we don’t actually know whether these changes will help or hinder access to justice.” Susan Acland -Hood, the chief executive of the HMCTS, highlighted the positive elements of the NAO report. “We are pleased the NAO has recognised the progress we have made towards a more accessible and efficient justice system,” she said. “More than 300,000 people have now used our online services, and two new service

centres are making it easier and quicker for all to access Editor's Note: These clohelp. sures will not affect the search results that a court “This is an ambitious and record researcher would challenging programme but get. Files and case inforis already making a signifi- mation will still be availacant difference. We will ble at Local Justice Areas continue to listen and learn, Straightline International working closely with our Criminal Record Services stakeholders to improve and ensure reform delivers the full benefits to all those Whether it's Magistrates or Crown England Courts who use our justice sysStraightline's got you tem.” covered. John Bache, the national chair of the Magistrates As- For Background Screeners sociation, said: “We strong- - no need for expensive, ly support the recommen- long waits, hard to get police clearances. dation of this report that HM Courts and Tribunals They are not required for Service should better most employment purposes demonstrate how it is monitoring the impact of its re- in England and absolutely not needed for employment forms on users of the justice system. We recognise purposes outside of Austhe need to deliver savings tralia. as part of the reform proCourt records are public, gramme, but it is essential that in doing so the experi- easy to get, some are even ence of those who use the online! courts does not deteriorate. “We are also concerned that a further 77 courts are due to be closed. Justice should, wherever possible, be administered locally and many courts are already worryingly remote from the communities that they serve.”

Public Access In Bermuda

proceedings, applications for directions in relation to trusts, cases relating to the administration of deceased estates, winding-up proAre court hearings ceedings and any other catheld in public? Are court documents avail- egory of case that may be identified, from time to able to the time, by way of circular by public? the Registrar of the Supreme Court (the RegisThe Bermuda Constitution trar). generally provides that all proceedings instituted in The legal basis for memany court shall be held in bers of the public to gain public, save that the court automatic access to court may exclude persons other records where the member than the parties and their of the public is not a party legal representatives to to the proceedings is as folsuch extent: (i) as the court lows: may be empowered or required by law so to do and - where a case is no longer may consider necessary or pending or active because it expedient in circumstances is finally concluded, a where publicity would prej- member of the public can udice the interests of jusapply to the Registry for tice, or in interlocutory pro- copies of documents under ceedings or in the interest the Supreme Court of public morality, the wel- (Records) Act 1955; fare of persons under the - where a case is pending, a age of 18 years or the pro- member of the public can tection of the private lives apply to the Registry for of persons concerned in the copies of any originating proceedings; or (ii) in the process or orders made in interests of defence, public the case under Order 63, safety or public order. rule 4 of the Rules; and - where reference is made The legal principles gov- in the course of a public erning private chamber hearing or in a public judghearings were considered in ment to any documents on Bermuda Casino Gaming the court file, a member of Commission v Richard the public has a commonSchuetz [2018] SC (Bda) law right to apply for cop24 Civ. ies of the relevant document or documents The Bermuda courts have (Bermuda Press (Holdings) recognised that the granting Ltd v Registrar of Supreme of confidentiality orders (ie, Court [2015] SC (Bda) 49 the anonymising of proCiv). ceedings and dealing with them as private) may be appropriate where there is Rwanda Going no obvious public interest Online in knowing about the matter in dispute (Re BCD Members of the public Trust (Confidentiality Or- will effective from next ders) [2015] Bda LR 108). week access criminal recThe legal principles govord certificates through an erning confidentiality oronline platform, the Proseders were recently consid- cutor General has conered In The Matter [of] The firmed, in a response to E Trust [2018] SC (Bda) 38 public concerns that the Civ. current process is complex.

for securing official services such as visas, passports and public sector jobs among others. .

Background Check Information (That Shouldn't Be Available) Can Cost You Plenty of $$$ A federal jury ruled that Bucks County willfully disseminated criminal record information through an online search tool on the county's website, violating a federal privacy law. As a result of the classaction lawsuit verdict, Bucks County could be required to pay up to $67 million to the 67,000 people booked in county jail from 1938 to 2013.

Many Canadian And Ontario Criminal Record Providers Are Basically Couriers Whenever I've tried to use a provider there to get me record information or copies or civil lawsuits, judgments, or lien records it's near impossible no matter what I've been told about their getting them.

Personal information, photos, and charges had been made public through the Buck County website's Are Canadian criminal inmate lookup tool for any- background screeners really one booked during those 75 screeners or just a delivery years, the courts found. service for RCMP records? The eight-person jury in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia determined the county had "willfully," or with a reckless disregard, shared that inmate information.

I would consider a training course for Canadian based record providers. Now that they are members of PBSA maybe they can undergo training.

Meanwhile, I find that doA U.S. district judge ruled ing them myself has always in 2016 that the Bucks been much better. County had violated the Criminal History Record Maybe because I am 20 Information Act, however more years experienced Tuesday's proceedings than them in obtaining recfound officials hadn't pre- ords. vented the information from being shared. But it is never too late for them to begin learning! In the class-action lawsuit â&#x20AC;&#x201D; brought forth by Daryoush Taha, who discovered in 2013 his 1998 arrest The public may apply for The criminal record certif- details were available on copies of originating proicate is an official docucess, judgments and orders ment issued to an individu- the county website â&#x20AC;&#x201D; each of the 67,000 people in civil and commercial al to state their criminal booked could be eligible matters save for any case record. Whether the indiwhereby order of the court vidual holds a criminal rec- for $1,000 in punitive dampublic access to such docu- ord or not, the status is doc- ages. ments has been restricted, umented on the certificate. divorce proceedings and any other proceedings relat- The document, valid for ed to children, applications six months from the issuin relation to arbitration ance date, is a requirement

England and Wales County Court Judgments High Court Judgments, Tribunal Awards Administration Orders Fine Defaults and Child Support

Clear My Record Introduces Court Record Deletion Software

automatically clear all eligible criminal records and remove a significant barrier to work, education, and housing for people. The core technology reads a criminal record, then maps In the U.S. today, 1 in 3 data to determine eligibility people have a criminal rec- for relief under the applicaord that appears on a rou- ble statute, and completes tine background check. the appropriate forms to be That means that 70 to 100 filed with the court. million people are left out of the workforce, unable to We will pilot this technolget student loans, housing ogy in 3 to 5 counties in and face a host of other ob- California, partnering with stacles to living a selfdistrict attorneys and startsustaining life, even though ing with the record clearthey have paid their dues to ance or reduction remedies society. available under Proposition 64 (marijuana legalization). Nearly every state has Our goal is to help clear passed laws that allow peo- 250,000 eligible convicple to clear or change their tions by 2019. criminal record, recognizing the impact on the econ- Our vision is to create a omy and on the lives of blueprint for automatic recfamilies when millions are ord clearance of all eligible shut out of the workforce or criminal records in Califorunable to fully reintegrate nia and across the country. into their communities. But We are working with gova small fraction of the tens ernment to fundamentally of millions of eligible rethink the process of recAmericans have actually ord clearance, leveraging benefited from these laws technology and userbecause of the process is centered design to reinvest overly complicated, costly, in communities by removand takes too much time. ing barriers to employment, housing, health, and educaAt Code for America, we tion. believe government can work dramatically better Understanding than it does today, and the Record Deletion criminal justice system is one of the areas where we A Little Better are most failing the American people. Thousands of criminal convictions for marijuana In 2016, we launched possession will be automatClear My Record as an optically expunged in Cook in service for people seekCounty, Illinois, through a ing record clearance. Howpartnership with tech nonever, we quickly recogprofit Code For America as nized government is not the state prepares to legalequipped with the proper ize recreational use of the tools to support reentry and drug. systems for decriminalization efforts. To help the The collaboration between government implement recthe county and the tech ord clearance at scale, we nonprofit will streamline shifted our focus and built the expungement process, Clear My Record helping the state atone for (Automatic) to support a “the wrongs of the past,” full systems change. Cook County State’s Attorney Kim Foxx said at a Clear My Record news conference Tuesday. (Automatic) After several years of work in this area, we are in the position to help millions get out from under the burden of a criminal conviction. In May 2018, Code for America launched a pilot to help the government

“Conviction relief is not only a critical part of righting the wrongs of the war on drugs, it is a recommitment and statement of our values—that a low-level marijuana conviction does not mean that someone is a threat to public safety.”

for accuracy before sending them on to the court. The software can read up to 10,000 records per minute, Pahlka said.

Other states have tackled automatic expungement in different ways. This marks the first time that California Under the state’s recrea- -based Code for America tional marijuana legaliza- will deploy the expungetion law, which takes effect ment system outside of its in January, residents 21 and home state, where it’s been older can possess up to 30 used in several jurisdicgrams of cannabis. Cook tions, including Sacramento County’s partnership with County and San Francisco. Code For America will automate the expungement Foxx said that Cook process for convictions in- County hopes to begin the volving less than that process as soon as possible, amount of marijuana. likely before the recreational marijuana legalization People convicted for larg- law goes into effect. er amounts (up to 500 grams) can petition to have the charge wiped from their Are There Really records. Prosecutors had previously worked to streamline expungement, cutting the processing time from 18 months to eight. But that didn’t solve the major problem with expungement— that a majority of people eligible to have their records cleared don’t take advantage of the opportunity because it’s so cumbersome, Foxx said. “The research has found that people who have been eligible for this type of relief, only about 3 to 5 percent actively work to get those convictions vacated largely because the process is so onerous,” she said. “People don’t know how to do it. The unique part about this is we are doing this on behalf of those who have had these convictions without them having to petition us to do that in the first place, which will allow for us to have maximum impact.”

Court Runners In Every County?

Recently, I was at (of all places) Sicily when I met this young entrepreneur who is making it big in digital ID verification. It was insane, to say the least, that even in Italy I would meet someone who was buying some of his product from one of my friends - a starter in the ID verification industry.

Many International Criminal Record Companies Fail Geography Tests What do you call a provider to a pre-employment screening company who has no idea (unfortunately THEY KNOW WHAT THEY'RE SELLING- their staff might think they're selling you a good product) but in reality they have no idea what's going on? Be it London, Bangkok, Manila; if there is more than one court in an area you're in a hurt of trouble. 11 courts in Bangkok, 30 some courts in Moscow, over 15 courts in London. You're getting the picture.

How Do You Spin A Good Yarn? Take a look at some USA international records research companies offering Russia criminal record searches. Looking at their websites there is no way to tell what they are really offering.

Many companies will spin a yarn even before showing you the price. Probably a The twist in this story is darn a good one if you that this guy's company was searching out CRA's to asked them what they mean. do their pre-employment screening. Russia searches? Offering As they are high tech, he Adminstrative penalties? Far from criminal. approached two large CRA's whose product is Local level criminal technology, more so than search - what's that? Take a criminal records. look at the list of Moscow courts. There's more than The story ends when he 30 of them. told me that even these high tech CRA's couldn't Care to guess what they're automate all their criminal doing? Or would you rather Code for America’s soft- record searches. have them do the guessing? ware program will be provided to the county for free, The joke is that the CRA's Know the facts. Forget the according to Jennifer Pah- told this guy that where lka, the nonprofit’s founder they don't have electronic yarn. access to court records they “As prosecutors who were and executive director. The have runners that go to the https:// program works by sifting part of the war on drugs, www.straightlineinternatio court! through government recwe were part of a larger nal.com/contact-us/ ords to identify the ones ecosystem that believed that in the interest of public that are eligible for expungement, then forwards safety these were convictions that were necessary to those convictions to the state’s attorney’s office, gain,” she said. where staff reviews them

Les Rosen’s Corner

A monthly column By Lester Rosen, Attorney at Law

Written By ESR News Blog Editor Thomas Ahearn Note: We heard a lot about continuous monitoring at the NAPBS/ PBSA 2019 Conference from almost everyone as if it were something new and revolutionary. Here’s an article reprinted from the Background Investigator - February 2017 edition from Les Rosen

Continuous Screening of Employees While most companies currently perform background screening on employees once at the pre-hire stage, “the new normal may call for continuous, posthire monitoring” in the near future to avoid insider threats, according to a Society for Human Resource Management (SHRM) article. The fact that Continuous Screening is a process that more employers are considering as a critical post-hire due diligence tool is Trend Number 5 in the Employment Screening Resources® (ESR) 10th annual ‘ESR Top Ten Background Check Trends’ for 2017. “An evolving practice called ‘Continuous Screening’ involves periodic background checks on current employees to identify criminal cases that can occur after a worker was hired. While Continuous Screening can be a risk-

management tool, employers need to consider a number of factors to determine if it’s worthwhile, fair, and legally compliant,” says ESR founder and CEO Attorney Lester Rosen.

use of criminal records to ensure the screening program is not discriminatory under Title XII, and Impact on Workforce. -Numerous additional tools beyond background checks that are needed to combat In the story entitled “Is insider threats, such as an Continuous Screening the environment of control Future Normal?,” SHRM since background checks editor/manager Roy Maurer by themselves are not going interviewed many backto prevent post-hire probground screening experts lems. including Rosen, who told -Issues associated with emMaurer that without Con- ployee morale and corpotinuous Screening “an em- rate culture. ployer may discover postemployment that critical Advocates of ongoing information was missed Continuous Screening sugduring the hiring process” gest it is a way to continue that may lead to post-hire to demonstrate due diliinsider threats that can in- gence, protect the workclude embezzlement, fraud, place, and combat insider theft, and even violent be- threats and workplace viohavior. lence. However, Rosen warns in his book that con“Continuous Screening” – tinuous screening on curalso called Continual rent employees carries Screening, Infinity Screen- risks. The verdict on ing, or Re-Screening – is whether or not the adusually performed on work- vantages of periodic backers annually or semiground checks of current annually. Although the ar- employees outweigh the gument can be made that disadvantages is: “The jury employers would likely be is still out.” Even though aware of a crime committed periodic criminal screening by a current worker beof current employees may cause the worker is not at have some apparent adwork, there are many seri- vantages, it is an open ous offenses where a per- question whether it is a cost son can be bailed out and -effective tool or even if the serve a sentence with work advantages outweigh the furlough, weekend jail disadvantages. Here are time, volunteer hours, or several points to consider. some other alternative to There is little in the way of actual incarceration. empirical evidence that shows Continuous ScreenAccording to Rosen – au- ing results in any advantage thor of “The Safe Hiring to employers, says Rosen. Manual,” a comprehensive There are no studies to sugguide to background checks gest, on a cost-benefit bathat includes a section de- sis, such checks produce voted to Continuous results. If such checks are Screening – employers If databases are used, then need to consider these fac- there is the possibility of tors: both false positives and false negatives since data-False sense of security, bases available to private especially if databases are employers are not always used instead of checking complete, accurate, or up to primary sources which can date. In large states like lead to errors. California, New York, and Consent Issues – Does the Texas, such database employee know he or she searches have very limited will be re-screened and the value. program is in compliance with the federal Fair Credit If there is Continuous Reporting Act (FCRA) and Screening, Rosen says, it state law? should be done ideally on -Policies and procedure to the courthouse level in adfollow if a record is found. dition to any databases, -Compliance with the U.S. which increases the cost. Equal Employment Oppor- There is also the consent tunity Commission (EEOC) issue. Under the federal rules on the fair and proper Fair Credit Reporting Act

(FCRA), all checks including periodic checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing). Although most consent forms contain “evergreen” language that makes the initial consent valid indefinitely or until revoked (usually in writing), at some point, an employee can either withdraw the consent or claim it has become stale over time. In California, the argument has been made that a new consent is needed each and every time. If an employee withdraws consent, the question arises if the employee can be terminated for refusal to consent. It is clear that employers have much more discretion in requiring preemployment testing, based on the fact that they do not have experience with the applicant. For that reason, courts have granted wider latitude pre-hire. However, once someone is employed, the necessity argument is less convincing since the employer now has a history with the worker.

have more difficulty dealing with it, requiring HR to engage in employee education to show how the policy benefits everyone. In addition, Rosen explains that a firm needs a well laid out policy in an employee manual as to how they will deal with a new criminal record that may be uncovered during a periodic check. At a minimum, any action must be based upon some business justification, taking into account the nature and gravity of the offense, the nature of the job, and how long ago it occurred per the 2012 EEOC Guidance. In addition, the pre-adverse action notice requirements of the FCRA would come into play as well as the “Individualized Assessment” process outlined by the EEOC.

Rosen told Maurer in the SHRM article that “job application forms should make it clear that any material falsehood or omission from the applicant can result in termination no matter when it is discovered. Employee handbooks should include language on what will happen if the employer discovers falsehoods or omissions post-hire.” He Therefore, Rosen explains, it is not clear that an also said employers employee can be terminat- “should ensure background ed for a refusal to consent check releases have an evergreen clause to allow futo an ongoing criminal check, absent some explicit ture screening if needed. employer policy or a strong Some firms include a polishowing of need. The em- cy that employees must self -report any arrest that can ployer could argue that impact their ability to persince employment is “at will,” failure to consent to form their jobs.” an ongoing background There are also the cultural check can constitute grounds for termination. considerations with ContinThe problem is that as time uous Screening, says goes on, the “at will” rela- Rosen. What type of mestionship can become murky sage does it send the workdepending upon the facts of place if workers are conthe employment relationstantly suspected of crimiship. nal activity? What type of workplace stress is created The issue becomes more if an otherwise long time complicated if the refusing and loyal employees feel employee is a member of a they are subject to dismisprotected class. That raises sal at any time for a minor potential discrimination offense that may or may issues. Another complica- not bear upon their suitably tion is when the policy is as an employee? If the eminstituted. If a new worker ployer is unionized, then comes onboard when the union rules can also play a policy is in place, it is role. much harder to object if it is clearly outlined in the be subject to false positives employee manual. If con- and false negatives. versely, the policy is new, Continued current employees will

Continuous Screening of Employees,

cumbent logistics workers at the facility, including employees who had worked at there for several years, did not pass the reContinued from previous page screening. The EEOC alOne possible solution for leged 80 percent of the inemployers that have deter- cumbent workers disqualified from employment as a mined that Continuous Screening is necessary is to result of applying BMW’s conduct it in a similar fash- guidelines were black. Folion to random drug testing lowing an investigation, the done for certain drivers that EEOC filed suit alleging are controlled the Depart- that blacks were disproportionately disqualified from ment of Transportation. employment as a result of Random pools can be set the criminal conviction records guidelines. EEOC up and “real” criminal sought relief for 56 African checks done at the court-Americans who were dishouse rather than a socalled “national” database charged. BMW has since that can be subject to false voluntarily changed its guidelines. positives and false negatives. Having noted the disadvantages, the case can well One company ended up paying $1.6 million to re- occur where an employer is sued for a failure to check screen their workers. On current employees if such a September 8, 2015, the U.S. District Court for the failure to check was the District of South Carolina proximate cause of workplace violence or some othentered a consent decree ordering BMW Manufac- er harm that arguably could turing Co., LLC (BMW) to have been prevented. The pay $1.6 million as part of bottom line is that this is an the resolution of a lawsuit issue that will be worked out in a court decision in filed by the EEOC that the coming years. In the claimed BMW excluded African-American logistics meantime, employers conworkers from employment templating such periodic checks should approach it at a disproportionate rate with caution and seek the when the company’s new logistics contractor applied advice of their attorney. BMW’s criminal convicRosen says there is also tion records guidelines the issue of whether Conwhen re-screening incumtinuous Screening is even bent employees. an effective tool to counter The EEOC complaint alinsider threats. Although leged that when BMW switched contractors han- pre-employment backdling the company’s logis- ground checks are often tics at a production facility, cited as an essential element of an insider threat the company required the new contractor to perform a prevention program, they are just one part of an overcriminal background reall strategy. The identificascreening on all existing logistics employees who re- tion and prevention of inapplied to continue work- sider threats requires an inter-disciplinary approach ing in their positions at that can include mental BMW. At that time, health assessments, psychoBMW’s criminal conviction records guidelines ex- logical testing, physical security, internal controls, cluded from employment all persons with convictions continuous evaluation of personnel, supervisor and in certain categories of co-worker training to reccrime, regardless of how long ago the employee had ognize danger signals, idenbeen convicted or whether tification of risk factors, sharing and analyzing inthe conviction was for a formation between responmisdemeanor or felony. sible parties, and a culture of safety, reporting, and After the criminal backintegrity. Most critically, an ground checks had been performed, BMW learned organization needs to have that approximately 100 in- a commitment to prevent these threats, and a leader-

ship team and professionals who are able to formulate and implement an overall strategy.

online. And for decades, California has acknowledged the public’s right to inspect arrest records and other essential documents. Yet retrieving useful information about California’s justice system is nearly impossible. More than half of all arrest records fail to show whether the suspect ultimately was convicted, so police can’t tell whether the person they just stopped has a serious felony record. Innocent people might sit in jail while courts or probation departments try to track down complete rap sheets that really ought to be available with a couple keystrokes. Violent felons may be left free to buy guns despite being legally barred from doing so. Potential employers can’t tell the difference between a job applicant with a criminal past and one who was once mistakenly arrested.

Rosen concludes that an organization considering continuous screening needs to bolster all aspects of its insider threat protection program, and understand that such screening is just one element of an overall program that needs to be approached with caution in order to ensure it does not create workplace or legal issues. The bottom line: if an employer is interested in continuous screening, it needs to work with a screening partner who can assist the employer with understanding all of the pros and cons in order to make an informed decision and to avoid pitfalls in setting up the program, and avoid providers that simply want to sell more searches that could end up doing Meanwhile, inadequate more harm than good. numbers and other data leave the public with no whether criminal jusRecord Keepers idea tice reforms or other new Can't Get It laws are working as they were intended, or whether Straight their courts, cops, prosecuCalifornia Police, Prose- tors, probation departments and public defenders are cutors And Courts Are Keeping California’s Crim- working efficiently and efinal Justice Data A Secret fectively.

How can a state that requires so much information -gathering be so in the dark about its justice system? In part, it comes down to lack of resources and lack of technological knowhow. Some courts and county agencies (barely) meet their legal requirements by sending paper records to the Justice Department, which then must transcribe the documents Since the 1950s, Califor- into its own data system. Other agencies have some nia law has required the state Department of Justice tech savvy but use systems to collect names, numbers or software that are incompatible with one another or and other key facts from every state and local agen- are no longer supported by cy dealing in any way with the companies that developed them. And standards crime, criminals or “juvenile delinquents.” In for collecting data vary around the state, so all that the 1970s, lawmakers set carefully compiled inforstandards for sorting and sharing justice data among mation has limited utility. courts, police, prosecutors, jails and prisons. In 2016, a Still — other states that new law required the state face similar challenges manage to do better. attorney general to post basic criminal statistics One problem that sets CalA quick flip through the statute books could leave the false impression that California has the nation’s most transparent criminal justice system, the most comprehensively compiled and carefully analyzed crime data, the most penetrating public access — even without a new bill on its way to Gov. Gavin Newsom’s desk.

ifornia apart is scale. The state is huge, and so are the numbers of arrests, dismissals, convictions, sentences, probation orders. It takes money and expertise to manage all those records. But it may also be that criminal justice agencies have little enthusiasm for opening their operations to public scrutiny. For example, until recently the California Department of Corrections and Rehabilitation prohibited researchers from publishing findings that officials believed might reflect poorly on the department, according to an April 2019 report by the Stanford Criminal Justice Center and Measures for Justice (an organization seeking to improve justice data collection practices). The same may be true of other agencies. A district attorney, for example, has a political incentive to jealously guard data about conviction rates, reversals on appeal and the like. Judges are wary of being graded on how swiftly cases move through their courts or how many African American defendants, for example, are convicted in their courtrooms, and how long their sentences are compared with convictions and sentences for white defendants. Assembly Bill 1331 would close some of the current gaps in criminal history records by tightening reporting requirements for law enforcement agencies and courts. It would require release of anonymized information to research agencies, which would then be able to sift through data to discover trends or biases. It would promote better and faster sharing of information among public agencies. It’s a step forward but like all those older laws on California’s books, it won’t solve the state’s criminal justice information problem without serious buy-in by courts, police and other participants in the system. They will have to more fully embrace — on their own or through public and political pressure — their role in producing useful data.

Buzz Feed Questions Background Check Practices

been vetted by Sterling.

New demand has only put more pressure on companies to speed up their services in order to compete for lucrative contracts. In Chicago, a Lyft driver When Sterling first released is in jail on charges of tying its own proprietary technolup a passenger and raping ogy more than a decade her in the back of the car. ago, it claimed it could search court records 50% In Texas, a customer ac- faster than its competitors. cused a Home Depot deliv- Today, it tells prospective ery driver of grabbing her clients that it stands apart by the neck when she said with its advanced technolothe wrong item had been gy, accuracy, and speed, dropped off — leaving and has won business from marks. companies like Walmart and Disney. And in Hawaii, a manager at a storage facility alleged- Sterling’s growth has acly sexually assaulted a teen- celerated in the last decade, age girl — the daughter of which has seen it buy a frequent client. around a dozen of its competitors. Goldman Sachs Each had a criminal histo- and other investors acry. But their employers had quired a stake in the comrelied on third-party back- pany for nearly $700 milground check companies lion in 2015. that had failed to turn up their past convictions, acBehind the scenes, Stercording to court documents ling’s rise has been built on and sources — allowing cutting US jobs and expeople with criminal pasts panding its operations in to work directly with cus- the Philippines and India, tomers, sometimes in the where verification teams most vulnerable of settings. sometimes struggle to meet the volume of checks that The dominant player in Sterling’s clients request. the industry, Sterling Talent Despite the emphasis on Solutions, is an unseen technology, much of the component of how thouwork still relies on lowsands of companies hire paid workers to sort workers. From its headthrough records. Offshore quarters in New York, it workers at Sterling deemploys thousands of peo- scribed to BuzzFeed News ple around the world, large caseloads that led to bringing in revenues of al- manual errors, problems most half a billion dollars a with technology, and even year, and screens employ- panic attacks and injuries ees for nearly 30% of For- from the stress and repetitune 500 companies. tive nature of the work. Criminal records checks are done nearly universally in the hiring process today. And the rise of the gig economy has only bolstered the background check industry as it depends on quickly hiring new employees for high-turnover positions — while assuring their customers they are safe when interacting with strangers. The TaskRabbit handyperson who shows up to help you move furniture, the babysitter you’ve hired from Care.com, even the flight attendant who serves you a drink on a Southwest Airlines flight may have all

Other issues with background checks arise as well — records databases can be incomplete, and workers don’t always have enough information to confirm that a conviction belongs to the person who applied for the job.

work for. Sterling delayed an interview with BuzzFeed News several times and then ultimately declined to speak. The company also did not answer a detailed list of questions. A spokesperson said in a statement that “as a leading provider in the background screening industry, Sterling relies on rigorously tested processes, proven best practices, and many years of experience in this highly regulated and complex sector as part of its commitment to keep companies and consumers safe.” But interviews, police reports, consumer complaints, and court records tell a different story. Sterling’s focus was on growth above all, many employees said, even as it struggled with the very technology it claimed made it a world leader — and mistakes led to alleged harm. Ultimately these piled up, and a grave error in its Mumbai office would lead Sterling to lose its contract with Lyft in the US, one of its biggest clients. On a summer evening in 2017, a young woman with bright blonde, shoulderlength hair got into a Lyft in Chicago around 11 p.m. After a few minutes, she fell asleep — not noticing that the driver, Angelo McCoy, had canceled her ride. Instead of dropping her at the intended destination, she said he pulled into a secluded alleyway.

Once parked, McCoy allegedly crawled into the backseat, and after threatening his young woman passenger with a knife, grabbed her iPhone. He then zip-tied her hands behind her back, according to the police report. Unable to Around 200 lawsuits have move, she said he forced accused Sterling of failures his penis in her mouth, — most often attributing vagina, and anus. McCoy criminal records to the held her there for hours, she wrong person, preventing said. them from getting a job. But the very worst errors When he was finished, are the ones in which peo- McCoy drove off, his pasple with violent criminal senger still in tow. The records slip through the net, young woman only manand go on to harm the very aged to escape when people they’re supposed to McCoy stopped at an inter-

section in the North Side of it disqualified thousands of drivers from both compaChicago. nies, finding more than 950 had committed violent Police later charged crimes and 51 were sex ofMcCoy with assault, kidnapping, robbery, and un- fenders, according to figlawful restraint. McCoy is ures provided by the state. (Uber contracts with currently in jail awaiting Checkr, one of Sterling’s trial for these allegations, along with charges associ- competitors.) ated with a second rape, Criminal checks aren’t according to Cook County standardized — searches Sheriff’s Office records. vary based on what a client orders from third-party When Sterling screened companies. The fractured McCoy, he had a recent, nature of the US court sysprevious conviction for tem, which includes thoutheft, BuzzFeed News sands of courts across the found, a criminal charge that Lyft lists as a disquali- country, means not everyfying offense for drivers. A thing will show up in just one search. lawsuit against both Lyft and Sterling cites a longer Typically searches start rap sheet of McCoy's that with a Social Security numincluded a conviction for possession of weapons. A ber trace to verify an applicant’s identity, determine Cook County clerk told BuzzFeed News that not all where they have lived, and case files for McCoy were then search the court records in those states and paravailable. ticular counties. Lyft had requested a Social Security Sterling’s background number trace from Sterling check failed, the lawsuit on its drivers, along with a alleges. nationwide criminal search, a county court records In a filing Sterling said that it was not responsible search, a federal criminal court records search, and a for protecting the victim US Department of Justice from McCoy’s alleged criminal act. Lyft declined 50-state sex offender registry search. to comment, citing active litigation. Sterling has automated Ride-hail companies have some of its record searches, long been under fire for not employees said. But most checking their drivers thor- of the time, a criminal recoughly enough. In 2014, ords search requires a pair the Los Angeles and San of human eyes to read Francisco district attorneys through court documents, sued both Lyft and Uber for confirm the contents, and how they were representing code the results for a client. their background checks to their customers. Lyft paid Continues next page $500,000 to settle that claim and agreed not to describe them as “industry leading.” Uber fought the allegations but ultimately settled as well in 2016. A few years later, Massachusetts passed legislation requiring in part that Lyft and Uber drivers submit to an additional state-run background check. In 2017,

Buzz Feed Questions Background Check Practices

want to get through the files because there are targets to make,” Dasgupta explained about the criminal verification workers.

other time in our history,” Greenblatt was quoted as saying in a company press release.

Sterling began snapping Not all said they found the up other background check targets stressful. Several companies in 2008 and The ads posted for jobs employees told BuzzFeed soon started making lists of in Sterling’s call centers in News they enjoyed the the fastest-growing compaIndia and the Philippines work and that they could nies in the country pubshow the company targeted meet the targets because it lished by Inc. and Deloitte. fresh graduates who usually was a straightforward task By the end of 2010, it had required only a year of to search for records. attracted private equity inwork experience to qualify vestment. for a “nonvoice” or backOccasionally leadership at office position like data en- the office requested DasThose companies allegedtry or searching US court gupta hold extra training ly made mistakes in their records. sessions with employees to background checks too. guide them away from One of the first that SterThe process was prone to these errors, he added. But ling acquired, Abso, error, employees said, espe- it had little effect. cleared a registered sex ofcially given the speed with “Everyone was trying to fender. which the checks needed to save time and cut corners.” be completed. After Dale McShane was The driving force behind hired as the manager of a On any given day, SterSterling is William Green- storage facility in Honoluling’s staff might have a blatt, who founded the lu, his boss requested a target of reviewing the files company while at the Uni- background check on him of 80 people. That means versity of Maryland in in early 2009. Abso reportsearching the courts for 1975. At first the company ed that its search of countyeach jurisdiction where was dedicated to secret level criminal records and a someone has lived, review- shopping and polygraph sex offender registry was ing the documents related testing, until the 1980s, clear, so McShane kept to each file, ensuring they when regulation changes working. matched the correct person led him to shift his business and that they were reporta- to employment screening. But months later, ble under federal and local McShane was accused of laws, and then coding those For years, the company’s forcibly kissing and touchresults — all in just a few annual revenues had hov- ing the daughter of one of minutes. Common names ered around $1 million. But the clients who used the were particularly challeng- things picked up across the storage facility. The 15ing because there could be industry after 9/11, as de- year old had recently a large number of matches mand inevitably grew for moved to Hawaii from Jaand lots of files to review. more extensive screening pan and didn’t speak Engprocedures. Greenblatt told lish well. On multiple occaIt was “very stressful. the New York Times in sions, McShane had allegThat’s how people used to 2005 that he expected reve- edly cornered her — stickmake a lot of mistakes,” nues around $50 million ing his tongue in her mouth said Sneha Soneja, who that year. In a 2008 profile and rubbing her inner thigh, worked in Sterling’s crimi- of the company, a business a lawsuit later alleged. nal records department for publication wrote that about a year around 2017. Greenblatt had a “maniacal The owner requested Abfocus on growth.” so run another check on Lots of errors cropped up, McShane after the family agreed Avisek Dasgupta, With increased demand filed a police complaint. who was a training manag- from employers, speed be- Abso’s second report iner at Sterling for several came more important. The cluded an added search of years in Mumbai. Someproprietary technology that the Department of Justice’s times, he said, workers it had recently launched sex offender registry, which would simply use “control made it 50% faster than the revealed McShane was a + F” to search court docu- rest of the industry, Sterling registered sex offender in ments for keywords instead said. Today the company’s the state of Hawaii. He had of reading through them to website states that the tech- a prior conviction for atdetermine if there was a nology allows it to autotempted third-degree rape. conviction. matically pull digitized records from more than 2,300 Andrew Daisuke Stewart, Other times, employees counties around the coun- a lawyer for the victim, said didn’t take the time to con- try. it illustrated one of the firm whether state laws alshortcomings with backlowed them to report a case “We’ve taken the most ground checks — that not — in California, for exam- important component of the all records databases are ple, it’s illegal to report a background check, the complete. felony conviction more criminal check, and made it than seven years old. “They faster, more accessible and I n a court filing, Sterling want to do it fast. They more accurate than at any — which had acquired AbContinued from previous page

so by that point — denied it Unable to work, Mintz was responsible for McShane’s alleged assault. sued Sterling. It’s one of nearly 200 suits that the Yet Sterling gained more company has faced in the last decade over failures of prominence as it grew on the backs of these smaller the Fair Credit Reporting companies. In 2011, Green- Act, which governs what blatt, his spiked hair whit- third-party companies like ened since his college days, Sterling can report to clients. The consumer protecspoke to Fox Business tion measure limits compaabout his company. In a nies from reporting arrests dark pinstripe suit, he more than seven years old, warned that the services and outlines that companies Sterling offered were eshave to take reasonable presential because “most of what businesses see is not cautions to make sure they are reporting accurate intrue.” formation. “People lie about everySterling settled with Mintz thing,” continued Greenwithin a few months — the blatt. “It’s the American terms of which included a way.” nondisparagement agreement. People lie, but Sterling gets it wrong sometimes too. Unsuspecting job ap- But the frequency of mistakes is likely far higher plicants who were never than the number of lawsuits dishonest about anything on their application or had reveals. In the last five years, the Federal Trade no criminal history could be caught up in a web that Commission has received ultimately led them to lose another 190 complaints about Sterling, according to out on employment and a Freedom of Information wages. Act request. Complaints range from incorrect inforLast March, Matthew Mintz opened the Lyft app mation or outdated charges on his phone to start a shift being reported to the comwhen he discovered he had pany not responding at all been locked out of his ac- to requests to correct those count. He had already been mistakes. driving part time for about a year, but this time, a no- “There’s not a lot of finantice popped up that directed cial incentive to ensure accuracy,” said Michelle him to an email saying a Drake, a consumer rights background check had turned up criminal charges attorney in Minnesota who against him. Sterling’s re- has litigated cases against Sterling. From a revenue port mentioned sextrafficking convictions. standpoint, “you can make (Some companies rerun up for inaccuracy with a background checks to en- higher volume” of clients, sure they are aware of any she added. crimes that an employee might commit while work- Sterling itself admits there ing for them.) are limits to its services. In contracts reviewed by Lyft suspended his acBuzzFeed News, Sterling count. lays out pricing terms and assures that client data will be kept confidential. But in But Sterling seemed to signing, the client acknowlhave in fact confused Mintz edges that “Sterling cannot — a 53-year-old man living act as an insurer or guaranin Shakopee, Minnesota — tor of the accuracy, reliabilwith a 26-year-old in Chi- ity or completeness of the cago who shared his name data” or confirm “the serand had recently been con- vices will be uninterrupted victed for his role in an in- or error-free.” ternational scheme traffickContinues next page ing hundreds of women from Thailand who were forced into prostitution across the US to pay off bondage debts.

Buzz Feed Questions Background Check Practices Continued from previous page

Sergei Lemberg, a consumer rights attorney who represented Mintz, described errors within the industry as a “pervasive problem” and said that those cases made up a significant portion of his practice.

Charlene Allen was outside her home on a hot September day in a suburb of Dallas to meet a delivery driver from Home Depot. When the delivery arrived, she noticed the part she had ordered for her washing machine was the wrong one. Allen asked the driver — Nigel Graves — to wait so she could call Home Depot. When Graves refused, Allen took the delivery paperwork from him so she could jot down the reason for declining the order.

“Some of the errors are just egregious,” he said, adding that the most preva- But Graves’ demeanor lent mistakes he sees are suddenly changed, she said because of confusion over in a lawsuit. With one hand common surnames. he grabbed her by the neck, and with his other he Sterling tells clients that it gripped her left arm right can do a criminal records above her elbow. In pain, search in under 24 hours in she dropped the paperwork most cases. But the chaland Graves grabbed it and lenge is matching drove off. someone’s name to criminal records that don’t have Just a few years prior, a unique identifier of a per- Graves had been indicted in son. Social Security num- a nearby county for charges bers, for example, aren’t of burglary and aggravated always a part of court rec- assault. But the background ords. check company, First Advantage, had not discovered “Sometimes there wasn’t Graves’ previous criminal always a birthdate or a way history, a suit later alleged. to verify that the name was The parties resolved the the same,” said Amol case and it was then disKhengre, who worked in missed. First Advantage criminal records in Mum- declined to comment furbai. In those cases, he said, ther. A lawyer for Allen if criminal records came up declined to discuss the on a person, his team “still case. attached it to the file.” If Sterling does make a These types of errors hap- mistake on a background pen across the industry. In check, it’s not always easy 2012 the Department of to correct, according to fedJustice (DOJ) sued eral agency complaints, HireRight for violations of lawsuits, and interviews. A the Fair Credit Reporting small team responsible for Act, including failing to resolving disputes is based take reasonable measures in Ohio. But Sterling’s clithat ensured it was report- ent services team is often ing correct information. the first line of defense for The company paid a $2.6 customers to correct any million penalty. The DOJ errors — and like the crimideclined to comment about nal records verification whether it was currently team, it’s based offshore as investigating Sterling or its well. competitors. John Garfin started in this Those competitors, like department around 2014 First Advantage and when the team was first HireRight, have also been formed in the Philippines sued a number of times, — where a cluster of them and there are hundreds of worked overnight in one of FTC complaints against its Manila offices to keep those companies, records up with US hours. show. Some are alleged to have ended in harm, too. In the beginning, the cli-

ent services team took on all of the calls from US clients, Garfin said, and there was rarely a break. He estimated about 80% of the calls that he handled were about mistakes or disputes over background checks. Robert Duncan found himself trying to get through to Sterling a few years ago. After he was hired as a security guard in 2015, Sterling reported to his potential employer, US Security Associates, that Duncan had been charged with 29 child pornography– related felonies in Chester County, Pennsylvania, and had been convicted of five of them. Sterling had the wrong person, though. The Duncan convicted of child pornography charges was Robert Everett Duncan Jr., who lived in Pennsylvania, while the Duncan who had applied for the security job was Robert Eustace Duncan and lived in Texas. Duncan later alleged that he contacted the court directly, disputed the error with his employer, and tried to reach Sterling several times — but could never get through on the phone to even speak to someone. What Duncan didn’t know is that lots of people were trying to get through too, so employees just had to keep working — sometimes through their lunch break, and sometimes past the end of their shift. Workers weren’t allowed to leave or take breaks when the queue of calls remained high, multiple employees confirmed. “The number of calls was more important than the people servicing them,” Garfin explained. The team often heard from repeat callers, frustrated that they hadn’t gotten an answer yet — not knowing their inquiries could be bouncing between offices in different countries.

employees had to scramble to fill in notes on the call or forward inquiries or complaints to a different department to find out what had gone wrong. Sometimes they didn’t even get the full two minutes — employees described managers forcing calls through to their phones before the timer had expired.

others for the technology it had developed. “We were all kind of shocked,” said an employee who was in the meeting. “We always looked at [Sterling] as this terrible, old company that no one wanted to work for.” Another former TalentWise employee who stayed on with Sterling after the merger called them “the 400-pound gorilla in the industry.”

In cases like Duncan’s, the client services department could be messaging workers in India, the Philippines, and the US to find Six months before that, out how an error may have Goldman Sachs and a partner had acquired a majority happened. stake in Sterling for nearly Email inquiries were com- $700 million. Jack Daly, a ing in at the same time that managing director of Goldemployees answer as well. man Sachs, described it as “It was kind of traumatic, an exciting investment beto be honest,” said a worker cause of the company’s who left the department last “clarity of vision and leadership position within an year. attractive industry.” One night, the worker deGoldman Sachs’s investscribed, she got so overment only encouraged the whelmed that she started feeling dizzy and her head company to make more acbegan pounding. She went quisitions. TalentWise was to the medical office to lie the company’s ninth acquidown, she recalled. But as sition in recent years. the hours dragged on, things got worse. Eventually, she said, the night guard “Goldman had a very deliberate strategy to invest,” escorted her to the emersaid a former Sterling execgency room to treat her utive. “We went on a spree. panic attack. Most of it was buying busiShe didn’t decide to quit nesses — EmployeeScreen, until she saw an error that RiskIQ — that was all buying logos. The acquisition Sterling had made in a background report for a cli- of TalentWise was a technology play.” ent who continued to call about it. “I just lost faith in TalentWise had developed the company,” she said. its own technology that In Duncan’s case, his at- made it easier for human tempts to fix his report resource departments to failed. He said US Security initiate background checks Associates later contacted from its own platforms — him to say that Sterling which Sterling had noticed. wasn’t correcting his reBut in this rush to grow port. He lost his job offer. faster, Sterling also assumed it could purchase a After months of unemcompany to shortcut its ployment, he took a job at needs. McDonald’s instead. “It had a really slick, modern user interface,” said the In January 2016, the head Sterling executive involved of a background check in the transaction. Sterling company called TalentWise was looking to improve the called its employees into a capabilities of its own platconference room in its of- forms. “They said they had fice outside of Seattle to things we needed and if announce the company had they had that, we could cut been bought by Sterling. our time to market.

And after each call, a twominute timer began countTalentWise was a smaller ing down on the worker's player in the industry, but screen. The timer paused the next incoming call, but had caught the attention of

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Buzz Feed Questions Background Check Practices

Clients grew vexed. “There was an incredible amount of complaints,” said a former TalentWise manager who transitioned Continued from previous page to Sterling. “I don’t think it was their fault,” he added, referring to the offshore Under pressure from exec- teams, “they just weren’t utives to make the transac- trained on what to do.” tion happen, the department in charge of the transaction Before Sterling took over, scrambled to find money in TalentWise often used to the budget to acquire Tal- win new business from clientWise and only spent ents after other third-party about a month looking into companies had made misthe investment, said the takes, said Cody Sprecken, employee. a former sales manager who stayed on during the Sterling’s CEO at the transition. “You’re certaintime, Clare Hart, came into ly going to get mistakes” in TalentWise’s office in background checks, he Washington state and said said. Sterling management wanted to keep things the same. But after the merger, The tight-knit startup did Sprecken said, making all of its sales and screen- sales for Sterling became ing in-house. about offering cheaper services in exchange for lockBut TalentWise staffers ing down many clients into soon started to get fired by 24- or 36-month terms that their new management. automatically renewed. “Each week three or four Contracts reviewed by people would drop. It beBuzzFeed News stipulated came obvious quickly they that Sterling be their excluwere forcing people out and sive screening vendor. from a cultural point it wasn’t a fit,” said a former Tal- And Sterling was strict in entWise employee who enforcing these terms. stayed through the merger. Since 2012, it has sued more than a half a dozen Salespeople were largely clients in New York state kept on, but all the opera- for failing to give proper tions staff — including notice of terminating the those in verifications and contract, records show. customer service — were let go. New employees in Meanwhile, integrating Mumbai and Manila took the Sterling and TalentWise up those positions. The platforms was more diffitransition was rocky. Tal- cult to realize than first entWise’s clients weren’t thought. While trying to keen on suddenly trouble- scale up TalentWise’s platshooting any issues through form with a much greater an office so many time number of clients than Talzones away, said former entWise ever had, things TalentWise managers. And weren’t working properly. offshore employees had a Costs started ballooning. whole new company’s procedures to learn. “We were sold a piece of junk,” said a senior Sterling Lee Galgo had been employee. working for Sterling as a verification specialist in As an incentive for emManila in 2017, but after ployees to work the the merger she was promot- nighttime shifts in Stered and became a team lead- ling’s Manila offices, a er on TalentWise accounts. commuter van picks up staff in the evenings and The changes left many they get paid a small, addiemployees bewildered, said tional bonus. But turnover Galgo. “Everyone was al- remains high — hiring noways in limbo,” she said. tices pepper groups on Fa“People would get concebook advertising for call fused about which process- center jobs. And there’s es to follow.” open hiring Monday

through Friday in the afternoons at their main office hub in the south of the city, ads show.

sleep through the days after a night shift, they put up cardboard in the windows. Others said the hours made them sick — their bodies never adjusted to sleeping Maryfred Domingo joined through the day. Sterling in Manila as a data clerk in 2017, and she After close to a year on would regularly create be- the job, Domingo develtween 80 and 90 files each oped an inflammation in night for Canadian clients, her left hand. The pain got for which she would earn increasingly worse as she around $320 US a month. continued the work — her Manual entry work brought fingers often flying across its own issues: Sometimes the keyboard. At first the clients submitted handwrit- pain seemed normal, she ten employment applicasaid, but then it grew tions that Domingo and worse. other data clerks had to interpret. Other times the IDs “I started to feel really bad were hard to read because a — I could not even lift a photocopy was fuzzy. cellphone,” she said. Domingo flexed her hand “Sometimes one file slightly to show her motion would give us a headache” was still limited. because it was hard to read all the documents, she said. A doctor diagnosed her “We worked fast, always with an inflammation in the copy and paste, copy and tendons in her hand — and paste,” she said, adding recommended she quit the there was a lot of time pres- job or the pain wouldn’t sure. stop. Most in the Manila and Mumbai offices weren’t allowed to bring in paper, pens, or phones as a security measure. Much of the information workers were reviewing, like Social Security numbers, was sensitive. But the company experienced a data breach in June 2015, it acknowledged in a court filing. That month, in Mumbai, a worker had taken an unsecured laptop home, and their car was later broken into, according to an employee familiar with the incident. The laptop was stolen. It was unclear how much client information was exposed, but Sterling disciplined employees over it. Overnight hours were typical, as staff tried to keep up with the time zone of North American clients. Domingo said she didn’t mind it — the commute was faster. But for others it was hard to adjust. One former Sterling employee said she ended up renting a studio apartment with three others near the office to escape the brutal Manila traffic that added hours to her commute. To

der to buy materials for an improvised explosive device. “They should check my background before they give me the job. That's their problem, not my problem,” the driver told WGN. Lyft, meanwhile, pointed to Sterling. “Our independent background check provider should not have approved this driver, which it did.” News of a former alQaeda operative driving for Lyft attracted the attention of Chicago officials, who pressured Lyft to drop Sterling. By April 2018, Lyft had stopped using the company to screen its US drivers.

BuzzFeed News found other instances of Lyft drivers with criminal records who had been screened by Sterling and gone on to allegedly harm its passenAnd as the late hours wore gers. In Boston, a driver with a previous drug conon, people got tired and hurried to make their daily viction was arrested for targets. “You saw incom- stabbing a passenger. Lyft policies say it doesn’t hire plete information, people rushing,” said Christopher drivers with disqualifying Iresare, a former supervisor drug convictions. who trained employees. “It And in San Diego, another happened all the time.” young woman accused a Still, Sterling continued to driver of raping her so brugrow — acquiring a com- tally he left lacerations and pany called Verified Person tissue damage. He had a in the fall of 2016 and then criminal history with multiple charges as well — intwo other companies in 2017. The offices in Mum- cluding a guilty plea that bai expanded, and Sterling was only a few years old opened up a second office for resisting an officer. in Manila. Today, the company says it has over Lyft declined to confirm 50,000 clients. whether Sterling reported the past convictions to them Thousands of criminal in these cases as well. checks were coming into the Mumbai office a day, In response to questions recalled one employee, and about its relationship with Lyft was one of its big con- Sterling, a Lyft representatracts. tive told BuzzFeed News: “The safety of the Lyft But Sterling mostly escommunity is our top priorcaped scrutiny for its role ity, and since the beginin Lyft’s background ning, we have built prodchecks until October 2017, ucts and policies with that when a Chicago news out- in mind.” let reported that one of Lyft’s drivers had been sen- Lyft continues to contract tenced to federal prison for with Sterling to screen its 90 months on charges of drivers in Canada. aiding terrorism. Prosecutors alleged Raja Khan had Continues next page wired funds to an al-Qaeda operative in Pakistan in or-

Buzz Feed Questions Background Check Practices

had cleared someone with terrorist charges. And the CEO left the company in May last year.

There was a new attention on any sort of error, employees said, that could Lyft said that since Cana- suddenly mean a terminadian criminal checks are tion. “People were in fear. done differently than US They were thinking, If I criminal checks, the same make any small mistake, I concerns did not apply. will get terminated,” said a former worker in criminal But several Sterling em- verification. “Everyone was ployees who had worked on afraid.” Canadian accounts in the Philippines told BuzzFeed Sterling finally abandoned News that they saw misthe TalentWise technology. takes resulting from the manual entry work and the But six months ago, Sterhigh volume of files. ling acquired another background check company in Zahara Fernandes, a for- Australia. mer vice president of Sterling in Mumbai, told Sterling keeps getting bigBuzzFeed News the misger. ? take in not catching Khan’s criminal record was a result of human error. “With a OSBI human-involved process there is definitely a possi- (Oklahoma) bility of failure,” Fernandes Criminal acknowledged. Continued from previous page

Reports

But she added that overall, Available Online, the quality of the company’s screening process was For $15 Each strong. “Sterling has a lot of controls and a lot of Criminal history backchecks to limit that failure,” ground checks from the Fernandes said. state's top investigative agency are available online In response to questions for the first time, for a about its relationship with price. Sterling, a Lyft representative told BuzzFeed News: The service costs $15 per “The safety of the Lyft search. Additional searches community is our top prior- of the sex offender and vioity, and since the beginlent offender registries cost ning, we have built prod$2 each, and each online ucts and policies with that transaction includes an adin mind.” ditional one-dollar fee. They added that Lyft had recently expanded its safety policies by adding continuous monitoring for criminal records of its drivers. “Any driver who does not pass both the annual and continuous screenings is not able to use our platform,” they said. “We are committed to constantly improving the experience for all users, and keeping our community safe.”

Results on the Criminal History Information Request Portal come back within minutes. The site can be reached at chirp.osbi.ok.gov.

an Brook Arbeitman. "It's definitely a lot faster than if you live out in rural Oklahoma and have to drive or mail it."

your parents, you can just check into who's hanging out with the people you love the most.

Why I Do Manila Searches By Myself

From The "Say It Ain't So Department"

I've been going to Manila and doing court checks for decades and as of now I still haven't seen a Researcher (that sells to preSomeone told me this scene employment screening took place in a major companies) that does real CRA's backroom meeting. background searches in the Philippines Present are the President/ The public can search CEO, the COO, the CFO, For example, the last 2 names and case numbers on Chief Counsel, VP of Mar- companies I tested failed the state's somewhatketing, VP of Criminal miserably. One sent me a clunky court records site, Records Dept, and the fraudulent clearance certifiOSCN, to retrieve both civ- Chief Compliance Ofcate and the other just il and criminal filings from ficer......... failed to get the simplest Oklahoma district courtsearch done at two courts in houses. CEO: We (have) brought the Metro area. modern software and techA similar court records nology to background These were PBSA APAC service, ODCR, offers a checks. This is why we members! But it is not free basic search. have been able to grow so PBSA's fault. PBSA is not fast. the police. Where OSBI's Criminal History Information ReCFO: And don't forget it Other companies, includquest Portal (CHIRP) ser- chalks up clients and funding USA based researchers vice stands out from the ing and resellers that say they rest is that a search will inhave a footprint in Manila clude arrest records, regard- LEGAL: But as it chalks up have been unable to get me less of whether the individ- clients and funding, (we) the easiest type of docuual was convicted of a have also been collecting ment after bragging to me crime. something else: lawsuits. how great they are! Much of that information can be found elsewhere on the internet for free, however. The Department of Corrections makes its violent offender and sex offender registry database available at no cost.

CHIRP only includes records from Oklahoma, including state and local law enforcement that take fingerprints and submit records to OSBI. The agency's IT team built the program in house, from the ground up using the state's software development resources. OSBI purchased two new high-end blade servers to scale up its existing Computerized Criminal History System, Arbeitman said.

CEO: Anything else?

Forget about NBI clearance verifications. You can COO: “There is a concern do them for free yourself that without proper checks online, but they only return and balances in our system, verifications that are curtechnology could be getting rent. it wrong. The NBI does not sell COMPLIANCE (meekly): clearance certificates to 3rd That is a possibility. But we parties. have to think about the proportionate volume of This is not a matter of searches that we running "vendor selection," a term and the resulting number of use loosely by NAPBS mistakes. members. It is a matter of knowing what they're doCFO: Think of it as a cost ing. of doing business. For every case we have to settle , the amount of money we’re making with these reports far outweighs it.

Using a background search like CHIRP brings comfort in knowing more about people in sensitive positions, she said. For exOklahoma's State Bureau ample, parents can check CEO: of Investigation has long whether their babysitter has Then offered background checks a rap sheet. it's to the public, but they were setonly available by filing a "Or you have small busi- tled. written form by fax, snail nesses that are wanting to Busimail or in person. background check potential ness employees to make sure Within Sterling, the pub"It is the exact same ser- they're a good fit for their as usual. licity of the error resonated. vice we've offered since business. The biggest thing Fernandes said employees 1985, as far as criminal is it provides peace of were briefed on it. Layoffs background checks. It's just mind," said Arbeitman. hit that spring. In Manila, the convenience of being "Whether you've got a kid employees whispered about able to do it from a comput- who's got a new boyfriend, the news that the company er," said OSBI spokeswom- or you need to hire help for

Many Ways Things Can Go Wrong With Background Checks

ment, but they weren’t available. Was this over a credit check? And didn’t the circumstances count for anything? She started to worry, wondering whether the number was somehow fraudulent and she’d handMikhail Arroyo had made ed over all of her personal information. it out of the coma, but he was still frail when his The process dragged on mother, Carmen, tried to for months. “They just kept move him in with her. giving me the runaround,” The months had been tax- Carmen says. Meanwhile, ing: Mikhail was severely she looked for another injured in a devastating fall place to live, and found one spot, even if it was in a in 2015. worse neighborhood. But it He had spent time in the had stairs, and Mikhail hospital, and by 2016 was couldn’t walk at the time — so he wouldn’t be able in a nursing home where his mother visited him dai- to live there. He wasn’t ly, waiting until they could able to fully speak yet, either, but when it was time live together again. to bring him back to the Carmen planned to move nursing home, he’d point to tell her he wanted to go him to a new apartment with her in the Connecticut back to the apartment. residential complex where Some days, he’d cry. “It was heartbreaking for him,” she was staying. she says, “because he wantThe only task left was the ed to go home.” paperwork. As landlords decide who to rent to, CoreLogic offers At a meeting, she says, the an array of screening tools. management company They might use a product broke the news. Mikhail wouldn’t be allowed in to called ScorePLUS, which the apartment. Carmen was the company describes as a “statistical lease screening shocked. model” that calculates “a single score” to determine “On what basis?” she the potential risk of someasked. one signing a lease. A landThe woman she spoke to lord might also turn to a couldn’t tell her. Although product called CrimCHECK, which conducts a Carmen couldn’t have database search for crimiknown all of the details, Mikhail had been flagged nal records. The breadth of by a criminal screening tool records the company advertises is impressive. The run by a company called company says it uses an CoreLogic. She says she arrest records database of was only shown a single more than 80 million booksheet of paper — one she couldn’t take with her, and ing and incarceration recthat scarcely helped — and ords from approximately 2,000 facilities, updated given a CoreLogic phone every 15 minutes. Crimnumber to call. SAFE, the system that flagged Mikhail, is deShe got nowhere. She waited on hold, was trans- scribed by the company as ferred back and forth. Car- an “automated tool [that] men was Mikhail’s desig- processes and interprets criminal records and notinated conservator, giving her legal decision-making fies leasing staff when criminal records are found power, but the company needed documentation for that do not meet the criteria her and Mikhail — a pass- you establish for your community.” port, a driver’s license — and she wasn’t getting The ability to outsource through. Carmen was decisions is a key pitch to “livid.” At one point, she prospective screeners. says, she was told to get in “Whatever decision or intouch with the legal departformation service you use,

you’ll find the same simple data entry process, rapid turnaround and clear concise results that eliminate the need for judgment calls by your leasing professionals,” the company tells visitors to its website. Should there be a problem, and a landlord must send an “adverse action” letter, the company advertises an automated system for that as well. But for some housing advocates, the rise of automation and elimination of human “judgment calls” is increasingly the problem, not the solution. When screening tools bypass more human forms of decision-making, they say, those decisions are more likely to collapse complex matters into simple, algorithmically generated passfail mechanisms — leaving behind people looking for a home.

form of screening. The companies that offer these tools frame them as recommendations for landlords, which they can override. But Dunn questions that line of thinking. If the machine calculates a failing decision, he argues, there’s little other basis for a landlord to come to a different conclusion, especially if the landlord isn’t provided the complete history.

Federal law prohibits landlords from selecting their tenants based on protected characteristics — an applicant’s race, sex, or religion, can’t be used to determine whether they’re offered a place to live. But criminal records are more complex. If a record involves property damage, for example, a landlord might be within their legal right to decline an application, on the basis that it indicates a potential problem Eric Dunn, the director of in the future. litigation at the National Housing Law Project, has In the past few years, seen how the tools used by some of the boundaries of landlords have evolved in those protections have been recent years. Over time, extended. The Supreme he’s watched more people Court, in a major 5–4 decimove away from what he sion in 2015, ruled that the calls “old guard screening,” law extended to decisions where research was done that disproportionately afby humans and landlords fected certain groups, even were provided extensive if it was indirectly. If a poldocumentation. Instead, icy affects a black neighborhood more than a nearsystems are more likely by white one, for example, now to map “identifiers,” selecting options like cer- the policy could be unlawtain types of crime, against ful. The legal theory is known as the “disparate massive databases of obimpact” standard. scure origin. Fair housing proponents like Dunn say nuance is lost when landlords rely on automated screening tools that turn a personal history — one person’s story, which a landlord might have to grapple with, weighing actual risk — into a list of variables to be machine-verified. If there are extenuating circumstances around a record, they can’t always be captured in the rigid framework of the system, advocates argue. No matter how expedient it might be for landlords and background check companies to use those tools, they say, it will lead to blocking people who otherwise would have been accepted by a more personalized

Noting the disproportionate effect of criminal records on minority groups, the Department of Housing and Urban Development issued new guidance for real estate transactions in 2016. Under the guidelines, a landlord, or someone else determining whether to offer someone a home, might be able to use a criminal record to make a decision about a tenant. But that decision, according to the guidance, requires a close look at individual cases. If the screening policy fails to consider the severity or relevance of the record, or how long ago the incident happened, it likely wouldn’t pass HUD’s test. The Arroyos are currently in-

volved in a suit with CoreLogic over these protections. Monica Welby, deputy director of litigation at the Legal Action Center, says commercial checks are also “notoriously” inaccurate. Dunn sees similar issues. “I’ve looked at more criminal records reports than I could count, and I would say that well over half the ones I’ve looked at had some kind of inaccuracy,” he says. A record might, for example, include information from someone with a similar name, leading to a denial. “This happens all the time,” Dunn says. A similarly named relative — or maybe someone completely unrelated, who happens to share a name with a rental applicant — can derail a tenant’s application. The problems, Dunn says, often might have been caught by a more individualized screening system. CoreLogic has faced lawsuits over such errors. Under the Fair Credit Reporting Act, companies are required to make an effort to ensure accuracy as well as they reasonably can, but some have questioned the depth of that commitment. In 2015, a South Carolina man said in a lawsuit that he and his wife were seeking a new place to stay after flooding damaged their home. When he applied for a new apartment, though, he was flagged by a CoreLogic tool as a registered sex offender — apparently due to someone with a similar name. In court documents, the man said he was eventually able to reach someone to correct the discrepancy, but the process for removing the information would take two weeks, as the apartment slipped away. A dispute can be hard to fight, as Carmen discovered. She eventually found legal representation from a local nonprofit, the Connecticut Fair Housing Center. The group filed an administrative complaint with the management company. Continues

Background Checks Do Go Wrong,

Continued from preceding page

The CoreLogic system that flagged Mikhail, according to court documents, allows landlords to select certain options about criminal history to screen against. This means the decision largely remains in the landlord’s hands, the company argues, since the landlord chooses the parameters. CoreLogic has said its system only makes a check based on what it’s told to do, and is compliant with housing law. (CoreLogic declined to answer questions about its screening process, citing pending legal disputes, several of which it has faced in federal court. The company would not provide more information on precisely what landlords can screen for, or how it ensures accuracy in its results.) If the company flags your application, and you believe it’s relying on inaccurate information, CoreLogic offers a helpline to call. The company says it will conduct a reinvestigation that will be completed within 30 days, and if any errors are found, will fix the issues. Still, some argue that even if the errors are corrected, whatever home an applicant has applied for will likely be gone after a month. The Connecticut Fair Housing Center tried to get the management company to overlook the background check. Whatever caused Mikhail to be flagged, they argued, it was clearly moot. If a criminal screening is predicated on the theory that it could predict future behavior, Mikhail was hardly likely to commit a crime in the future — he was disabled now, reliant on others for help. There was no basis to think he was somehow a danger to people or property. The argument, according to Salmun Kazerounian, a staff attorney at the center, didn’t sway the management. “They responded, essentially, ‘how can we

agree to overlook a crimi- was rejected anyway. The nal record if we don’t know problem: a CoreLogic syswhat it is?’” he says. tem flagged the record from the New York correctional CoreLogic’s documenta- record. Wilson was barred tion was a sparse source of from the apartment. clues. The company provided a “result” that said there “In this age of technology was a “disqualifying recand widespread use of ord,” but not enough to de- criminal background duce what the problem was. checks, it is more important The report generated a than ever that background “jurisdiction” entry that check companies get it was seemingly nonsensical: right,” Wilson, who “000000033501.PA.” reached a settlement in a lawsuit, said in a statement At first, they had no idea to The Verge provided by how to find out what the the Legal Action Center. record could mean. It took “They must take the proper more digging to determine steps to ensure that the the circumstances, but criminal record information eventually the story could they report is accurate. The be pieced together. Before stakes are high for people his accident, Mikhail faced — it can be the difference a retail theft charge in between having a place to Pennsylvania. The charge, call home or not.” according to the center, was for a “summary offense” — Mikhail was finally ala charge below misdemean- lowed to move in with Caror that’s also called a “non- men in June 2017, after the traffic citation.” The level charge was withdrawn. Had of the charge suggested the the screening been done incident involved less than effectively, the Connecticut $150 and was Mikhail’s Fair Housing Center alleges first offense. He was 20 in a lawsuit against Coreyears old at the time. “It Logic, they could have was as minor as they been reunited a year earlier, come,” Kazerounian says. saving the Arroyos time, Last year, the charge was money, and emotional enerwithdrawn. (Mikhail was gy. “I’m bringing it bealso arrested following a cause I think it was wrong, burglary in 2013, according what they’ve done,” Carto statements from local men says. authorities; Kazerounian stressed that, regardless, the Mexico State Pennsylvania charge was Civil Court the only item on his record.) Going Online While it’s hard to determine the exact rate of disputes like the Arroyos’, experts say there are broader issues around accuracy in background screening. “Disputing information with consumer reporting agencies can be extremely challenging for individuals,” Welby says.

The governor Alfredo Del Mazo Maza headed in Ixtapan de la Sal the presentation of the Online Civil Court of the Judicial Power of the State of Mexico , as well as the inauguration at a distance and in a virtual way, of the Mediation Center of Huixquilucan.

In one CoreLogic case recently settled, a man named Abdullah James George Wilson was sent to prison after a 1992 robbery, but years later, after his counsel was found to be ineffective, Wilson was granted a favorable ruling on appeal. His record was sealed.

He explained that the mobile application is a tool open to the general public, facilitates access to justice in an agile way, relevant legal information and judicial records can be consulted , which reduces time and costs for courts, lawyers and users.

In the case of the MediaBut in 2014, Wilson, look- tion, Conciliation and Reing for a place to live, storative Justice Center of found that his application

Huixquilucan , he said that it offers tools for alternative solutions to community conflicts and will have powers and powers to intervene in civil, family, commercial and criminal dispute resolution, among others.

He also explained that the Civil Court Online is a mechanism that will have the power to attend in a transparent, prompt and expedited manner throughout the state territory, will have 12 remote courtrooms and through the use of During the event and ac- telepresence will expedite companied by the President the process of formalities. of the Judiciary, Sergio Medina Peñaloza, the head He pointed out that of the State Executive, through this Civil Court highlighted the moderniza- Online in a maximum of 20 tion of the institution days resolutions will be isthrough various technolo- sued and the corresponding gies and platforms, which hearings will be held. Meaccelerate and improve its dina Peñaloza, head of the services to the population. PJEM , indicated that the new tool will allow 50 to For his part Medina Pe60% reduction in the resoñaloza, head of the PJEM , lution and handling of proindicated the new APP of cedures and procedures, for the court, makes available example court notifications to the general public infor- from 30 to 5 days, the conmation that strengthens ac- summation of usucapion countability, such as the from two months to five board of directors, perfor- days; the ratification of a mance statistics by court or contract or agreement of 20 by room. to 10 days, among other deadlines you cited. " For the courts, the chaining of files through the Original: electronic signature reduces https:// the issuance of copies and www.elfinanciero.com.mx/ certificates, as well as the nacional/presentan-entime invested in the consul- edomex-juzgado-civil-entation of files or agreelinea ments, " he said.

An Example Of One Of The Most Common Summary Offenses In England Two local businesses fined for not having TV licences The proprietors of a pub and a restaurant in North Warwickshire which were caught without a TV licence have both been ordered to pay £445 by magistrates. Mr Nicholas Bray, the proprietor of The Fox and Dogs Inn, Orton Road, Warton, was fined £220 for the offence of using a TV without a licence on the business premises. He was also ordered to pay £195 costs and a £30 victim surcharge following a Magistrate’s review of the case on 2 September 2019 at Nuneaton Magistrates Court. Also, Mr Yourgus Christopher Kafetzis, proprietor of the Funky Bear Tamworth, Tamworth Road, Cliff, was fined £220 for the offence of using a TV without a licence on the business premises. He was also ordered to pay £195 costs and a £30 victim surcharge following a Magistrate’s review of the case on 2 September 2019 at Nuneaton Magistrates Court.

Rachel Roberts, TV Licensing spokesperson for the Midlands, said: “We appreciate these are tough times for businesses, but to be fair to the majority who do pay the licence fee, we have to take action against those who watch TV illegally. “We’d rather businesses think ahead and check if they need a licence than risk being prosecuted. A licence costs £154.50 and can be bought in minutes online at www.tvlicensing.co.uk/ businessinfo.” TV Licensing is also reminding other businesses to make sure they are aware of their licensing requirements, to avoid the risk of prosecution and a large fine. In the last three years, TV Licensing enquiry officers visited more than 44,000 businesses across the UK, ranging from takeaway restaurants and holiday parks to garages, hair salons and sports clubs, to confirm if they were correctly licensed.

Who needs a Licence? If anyone at your business watches or records TV programmes as they are being shown on TV, irrespective of the channel they’re watching, the device they’re using (TV, computer, laptop, mobile phone or any other), and how they receive them (terrestrial, satellite, cable, via the InAny business showing ternet or any other), you television programmes as will need to be covered by they are broadcast on TV, a valid TV Licence. A liwhether for customers’ use cence is also needed if staff or in staff areas, must be or customers watch BBC covered by a valid TV liprogrammes on iPlayer on cence. If there is living ac- equipment supplied by the commodation on the prem- business. In general, one ises where a TV is also in licence will cover all the use, this must be covered TV equipment your busiby a separate licence. ness uses for business purposes on a single site. The Those without a valid li- only exception to this is cence are breaking the law hotels, which have separate and run the risk of a court licensing requirements. prosecution and fine of up to £1,000.00 per offence, However, if you sub-let plus costs. Businesses any part of your premises found guilty are also reto another business or have quired to buy a TV licence an on-site social or welfare at £154.50, or they could club, then it will require its face a potential second own separate licence. prosecution. Please note that the licence does not cover any residen-

tial accommodation on-site 18s. or within the premises. Campaigners said ministers were "misleading the When is a licence not need- public" after the Home Office said all applicants for ed? You do not need a licence the EU settlement scheme for your business premises aged 10 and over were beif the TV equipment is nev- ing checked to see whether er used to receive or record they had a criminal record, television programme ser- and would be refused if vices, but is only used for they met the "deportation closed circuit monitoring or threshold". to watch pre-recorded videThis is despite the fact os. that the government webPenalties for Licence eva- site states criminal checks would apply only to applision Using television receiving cants who were 18 or over, equipment to watch or rec- prompting concerns that the ord television programme government was services without the correct "misleading the public". licence is a criminal offence. Your business could EU nationals living in face prosecution and a fine Britain need to apply for settled status by the end of of up to £1,000. June 2021 – or by the end Paying for your business’s of 2020 if Britain crashes out of the bloc – to remain TV licence A colour TV licence costs in the country legally. £154.50. A black and white Without settled status, TV licence costs £52. The licence fee is set by govern- children will risk becoming undocumented, which ment. would leave them unable to access state support and TV Licensing aims to make it as easy as possible could make them liable to for people to buy a TV Li- detention and deportation cence, which is why there in the coming years. are many different ways to Dozens of vulnerable EU pay including online. children serving jail sentences in Britain could be of their immigraPrimary School stripped tion rights after Brexit beChildren Of EU cause the Home Office is refusing to let them apply Citizens To Be for settled status.

Checked For Criminal Records

The Home Office (UK) has prompted outrage after confirming primary schoolage children of EU citizens will be checked for criminal records, despite previously suggesting that this would only apply to over-

When approached for a comment on that article, a

Home Office spokesperson said: “An application to the EU settlement scheme will be refused if it meets the deportation threshold. All applications from those aged 10 and over are checked to see whether the applicant has a criminal record.” Guidance for EU settlement applicants the government's own website appears to contradict this statement, saying: "If you’re 18 or over, the Home Office will check you have not committed serious or repeated crimes, and that you do not pose a security threat." Labour’s shadow home secretary Diane Abbott said: “This is wrong on every level. Children should not be subject to criminal checks and they shouldn’t have their residency status put at risk in this way. And ministers should not mislead the public by saying one thing and doing another. “It’s clear that this government simply cannot be trusted and the only way to end their ‘hostile environment’ policy being applied to growing numbers of people is to get rid of this government altogether.”

Lyft, Uber, Checkr Show Why Continuous Monitoring Does Not Work

their driving history. The city flagged 17 Uber drivers who had a suspended license within a the previous three years. Forty-three Uber drivers had two or more traffic violations within the past year. Five A review of Portland Bu- drivers got past Uber backreau of Transportation rec- ground checks despite not ords found 168 cases dur- having a valid driver’s license. ing the past five years in which city inspectors suspended or revoked an Uber Lyft had 90 drivers in or Lyft drivers’ permit be- Portland who should have cause of criminal or driving been disqualified, according to city records. Fiftyhistory. three Lyft drivers had two These drivers should have or more traffic violations been rejected by Uber and within the past year and 24 drivers had their license Lyft during routine background screenings; instead, suspended within three years of applying to drive they slipped through the cracks. The drivers weren’t for Lyft. Two Lyft drivers got past a background flagged until several months later when the city check despite having felony convictions in the mid to of Portland conducted a late 1990s. secondary background screening or spot check. Under an agreement with “We are catching people the ride-sharing companies, who shouldn’t be driving,” the city can’t say exactly how many drivers are perexplained John Brady, spokesman for the Portland mitted to drive for Uber or Bureau of Transportation. Lyft in Portland. But the city can say there are roughly 10,000 ride-share Nationwide, both Uber and taxi drivers operating and Lyft are facing increased scrutiny over safety in Portland. concerns and the effectiveHow Lyft Tries ness of their background checks. A CNN investiga- To Explain Away tion in April 2018 found 103 Uber drivers had been Their Missed accused of sexual assault or Records abuse in the last four years. Lyft is now facing a flurry A Lyft spokesperson conof lawsuits related to rides firmed both drivers with that allegedly ended with felony records should not rape or sexual assault. have been approved to drive for Lyft. The drivers “We do not think they are were removed from the doing enough,” explained platform in March 2018 Meghan McCormick, an after the missed convictions attorney at Levin Simes were brought to Lyft’s atAbrams. The San Francisco tention by PBOT. law firm is litigating more than 100 cases against Uber Lyft explained that Sterand Lyft, many of which ling, a third-party company involve alleged sexual asthat conducted driversault. applicant background checks for Lyft, missed the “Just about every one of convictions. Lyft has since our clients has said their ended its contract with biggest concern is making Sterling. sure this doesn’t happen to somebody else,” said In April 2018, Lyft started McCormick. using Checkr to conduct criminal background The records, obtained checks based on federal and from the city of Portland county court records. Addithrough a public records tionally, Lyft explained, request, indicate 78 Uber Checkr reviews a nationdrivers should have been wide criminal search and disqualified because of sex offender registry

search. “Any driver who does not pass the initial, annual, and continuous screenings is not able to use our platform. We are constantly working to improve the safety of our platform and are committed to delivering the best experience for all users,” a Lyft spokesperson said in a statement to KGW. I n April, Lyft expanded its background check process to include continuous criminal monitoring. A second company, First Advantage, provides Lyft with daily monitoring and notification of disqualifying criminal convictions. Additionally, Lyft announced it will soon launch continuous driving record checks in partnership with SambaSafety.

tionally, an effective back- John he has been a motivatground check should look ed learner, once a beginner, at every place a person has but today a "professor." lived, where they’ve worked and studied. I know his history, how he began at Records Search, This level of detail to came to Chicago as my screen an applicant can be study, ending up Director at time consuming and is ex- Crimesearch, before curpensive. And background rently with his position at checks must be repeated on GIS. His knowledge of a continual basis to catch criminal records and how to new convictions or recent obtain them; finding vendors and getting quality reUber also uses Checkr to driving problems. sults - he just might be the conduct criminal back“There’s really only one best. ground checks. It instituted solution for background continual background checks and it is to do it the And Stephen Ginsberg, checks in July 2018. right way,” said Ward. “If who one day in 1996 came With all this in place they your business relies on peo- into my office for an interple feeling safe, it is imview answering to a clerical still come up on the short portant to make sure you help wanted position. Inend. are doing the best type of stead. I saw something in search possible.” Steve; maybe something From The Same others didn't see, but it looked to me like a "never Article Criminal Hats Off To take no" attitude so instead Records Are These Two Real of the clerking position, I hired him, as the first perTried To Be Assets To Preson I ever thought could do Explained Employment a job getting court records as well as me. How did these Uber and Screening Lyft drivers slip through Two people who are a real Steve proved me right. He the cracks? applied what I taught, plus asset to pre-employment added a touch of his own screening: Background checks are bonafide "go get em" attinot perfect. A basic online tude, and became what I They are John Hanks search may fail to pick up would call the most sucsomeone’s criminal activity (now of GIS) and Stephen cessful criminal record reor driving history because a Ginsberg (retired, fomerly searcher ever that I could name is misspelled or local with Crimesearch and trust. USIS/HireRight). court records don’t show up. Both John and Ginsberg's As long as I've known hard work has “A lot of people watch made a lot of what CSI or those types of TV we do today much shows and think there’s one easier. database. You put in somebody’s name or social security number and it tells you everything about them. Unfortunately, it doesn’t really work that way,” said Alex Ward of CICS Employment Services, a nationwide background check firm. Ward explained that screeners should utilize multiple databases. Addi-

John Hanks –LinkedIn

South Dakotans Will Soon Be Able To Access Court Records From Any Computer If a South Dakotan wants to see public court records, they can only do that by looking them up on computer at a state courthouse during work hours between Monday and Friday.

website will allow people to search by name if a date of birth or county and date range of the alleged offense are also entered. Requiring the extra information with the name is meant "to ensure the correct person and case is returned and to safeguard against data mining," Sattizahn said.

To search for someone's complete criminal background, he said, people will still need to pay $20 at a state court or at ujspars.sd.gov. The online That means a Pine Ridge court calendar resident would have to (ujscourttv.sd.gov), which drive an hour to the court in lists hearings the day they Hot Springs or 50 minutes happen, is not going to exto Martin. Many people in pand to listing hearings that Meade, Butte and other are scheduled further out. large western counties also Federal courts in South Daface long drives. kota have a website that lists hearings scheduled in So to help improve access the next five days. to court records, the UJS is currently piloting a proThe new website will imgram that will eventually prove access to public recallow the public to see records and should help cut ords from any computer, down on paper and printing said Greg Sattizahn, admin- costs. But in the meantime, istrator of the South Dakota before the website goes Unified Judicial System. live, expect to pay more The website will be similar when printing court docuto the PACER website, ments in Rapid City or at which lets people view and any other court that previdownload federal court rec- ously allowed for doubleords for a fee. sided printing. "We recognize that the (computer) terminals are kind of limited in their functionality," he said.

The public computers at the state courts were recently upgraded from Windows 7 to Windows 10, which requires new security Lawyers can currently whose software prevents view documents related to the computers from allowtheir cases on any computer ing double-sided printing for free and on the new even if printers are capable website, Sattizahn said. The of it, said Kent Grode, IT new website, which is be- director for the UJS. ing used by a small group of lawyers before expandMost documents are free ing this month, will allow to view on computers made them to see documents re- available to the public, but lated to other cases for 10 it costs 20 cents to print cents per page. The website each page. Before the upwill then be open to the grade, people visiting general public, who will courts with double-sided also have to pay 10 cents printers could print two per page they view, in late online pages onto one piece 2019 or early 2020. of paper. Now, with only single-sided printing, they The fees will help cover will pay twice as much. enhanced technology within the UJS, Sattizahn said. UJS considered both cost and security needs when The public computers at upgrading the computers, the courthouses only let Sattizahn said. people search by case number, which can be retrieved "Certainly cost was a facby telling a clerk the name tor that was taken into conof the defendant and their sideration. However, the alleged crime. The new need to meet system securi-

ty standards for the information held by the UJS was an overriding concern," he said. "The UJS database includes highly confidential information, sealed court records and personally identifiable information in addition to publicly accessible records, and we must be vigilant in safeguarding those records."

informed us they do not have the capability to redact the reports in the short time between generation of the report and court," Erdman said.

Instead of law enforcement or prosecutors redacting the documents before submitting them, the clerks redact information â&#x20AC;&#x201D; such as Social Security numbers Printing costs can add up, and names of minors and victims â&#x20AC;&#x201D; after someone especially because police reports can be many pages asks for them to be printed. long and while listed on the public computer at the Pen- If a prosecutor doesn't attach police reports to a nington County court in Rapid City can't be opened case, the public has to reon the computer. In order to quest the documents through the records departsee those documents, the ment, which oversees the public must pay to have them printed and redacted Rapid City Police Department and Pennington by a clerk. County Sheriff's Office, said police spokesman That's still how people will have to access police Brendyn Medina. He said reports filed in Pennington records are usually only County cases with the new provided to those directly website, according to Kristi involved in a case or their family. Erdman, administrator of the 7th Judicial Circuit, which includes Pennington, Other law enforcement Custer, Oglala Lakota and agencies, state's attorneys and courts handle police Fall River counties. reports and probable cause "The court clerk receives for arrest affidavits in different ways. the documents from law enforcement and the state's attorney's office, who have Police reports aren't at-

tached to cases in the 4th Judicial Circuit, said Administrator Shawn Sorenson, who oversees courts for Butte, Lawrence, Meade, Corson, Dewey, Harding, Perkins and Ziebach counties. She said clerks first redact any private information before filing probable cause for arrest affidavits, and the documents are able to be viewed on the public computer screens. These affidavits, which aren't commonly filed in Pennington County, can also be viewed on the public computer, Erdman said. Police reports and probable cause affidavits for arrests are rarely attached to cases in the 2nd Juridical Circuit said Karl Thoennes, who oversees the Minnehaha and Lawrence county courts. If an affidavit is attached, the documents can be viewed on the public computer screens. But when police reports are attached to a case, they can't be printed for the public. Instead, someone would need to ask a judge or the relevant law enforcement agency to release the reports.

BRUCE’S SNAPSHOT 2019 Professional Background Screening Association Annual Conference San Antonio, TX September 8-10, 2019

Bruce's Conference Report Well, the BIG NEWS at this year’s professional background screening conference was the association name and branding change from NAPBS to PBSA: Professional Background Screening Association. The change was made with great fanfare, to respond to the borderless nature of the industry. Changes to the bylaws and membership structure were voted on and approved during the opening ceremony. Everyone celebrated with a balloon drop and champagne toast! Full details of this transforming change may be viewed on the new website: www.thepbsa.org. Please take note of the October 1 deadline for switching out the old NAPBS logo for the new PBSA logo on all websites and materials.

Exhibit Hall set up – fun time with everyone arriving and working to get booths set up for a 6PM opening. Many old and new faces were seen at the 4PM networking reception. Professional background screening attendees were chatting up colleagues and first time attendees. The borderless nature of our industry was visible in this setting as colleagues from across the globe were present. Next it was on to the (extended) opening ceremony with Angela Preston of Sterling, completing her term as chair of the association.

Bon Idziak of Accurate Background assumed his role as the new Chairperson of the PBSA. He thanked the past board members and committee leaders for their selfless service. Bon asked attendees about their “firsts” experienced as a professional background screener with the associaAttendance was hearty with 635 attendees and 269 tion. He asked for example, exhibitor personnel. Pretty who presented in front of a large audience for the first sure this is a new record. time at an NAPBS conferThe conference is three ence? Who met with a condays but the time goes so fast. It all started with the gressman in their office through NAPBS? etc.… It board meeting, the advanced FCRA course and was a very cool way to show shared mission and exam, and then Anna Brooks holding her ambassador training for those members who volunteered to help out during the conference. Serving as an ambassador helps the conference planners to direct people to sessions, food and services. The volunteers also support the presenters during their sessions. It’s a great way to help out and meet other members. Registration was bustling as most attendees appeared to arrive within the same time frame. Great opportunity to connect and reconnect with colleagues while in line.

appreciation for the association that bonds us! Of course my ‘first’ was that I was the first employer of Mr. Idziak in our industry when I hired him as a sales rep 20 years ago!!— Congrats Bon.

ful and comical comments were made by Mike’s wife Lynn Sankey, Dawn Standerwick (ESR), Jason Morris (Morris Consulting Group) and Bob Capwell (EBI). Dawn noted that the industry at its inception needed a collective voice Michelle Leblond of Plu- and established standards. sOne Solutions is the chair- She shared that Les was the elect. Dustin Dahl of SJV catalyst who led the charge. won closest to the pin in the BTW, when the association Sue Weaver Cause golf asked me who should be tournament. Heidi Patti of the second recipient of this Innovative won the wom- Award, all I could say was en’s longest ball. “there is no other choice but Les”. Congrats my The annual Lifetime friend, well-earned. Achievement Award was renamed the Mike Sankey Five Takeaways from Lifetime Achievement the Conference Award. This year’s winner was industry guru, NAPBS Our background screening founding member and our industry is global. Global first Chair, Mr. Les Rosen CRAs, global clients, globof Employment Screening al providers. Resources (ESR). Thought-

Governments will continue to create laws that complicate and lawyers will continue to find fertile ground relating in our industry. The industry is still healthy due to our strong economy, but how long will that strong economy continue as it is currently in its longest expansion on record? Read here for a thought on the economy. Better sourcing of data at lower costs is a neverending requirement. You just don’t know what you don’t know. Get educated via PBSA, your competitors and from consultants serving our industry.

Whether It's Local or District Australia Courts Straightline's Got You Covered For Background Screeners - no need for expensive, long waits, hard to get police clearances. They are not required for most employment purposes in Australia and absolutely not needed for employment purposes outside of Australia. Court records are public, easy to get, some are even online! http://www.straightlineinternational.com/contact-us/