The 'Right to Be Forgotten'

“Right to be Forgotten” is a movement gaining ground in Europe, where many public records are already less accessible than they are in the U.S. But now in the U.S. too, it seems that every week or two a new county, city or state is making it harder to ask about criminal backgrounds of prospective employees (or even current ones) by passing what are known as “Ban the Box” laws.

Some groups such as the National Employment Law Project argue that an old conviction for arson or embezzlement should not keep applicants from being considered for most kinds of jobs. Even where looking at criminal records is allowed, the Federal Trade Commission (FTC) and Equal Employment Opportunity Commission (EEOC) have been increasingly aggressive in going after real or suspected abuses of the law by employers who conduct their own background checks or who contract the searches out.

While prospective employers need to exercise caution about illegally asking for or using information that is freely available, they face a separate hazard just as large: the chance of being fed unreliable data by research or investigative companies that fail to check the accuracy of what they report.

Arrest vs. Conviction: You Mean There's a Difference?

According to the EEOC, “there is no Federal law that clearly prohibits an employer from asking about arrest and conviction records.” The key is to know when you can ask, how far back in someone's criminal history you can ask about, and how you use the results of your inquiry.

The part of a criminal check that can cause the most problems is the failure to distinguish between arrests and convictions. The EEOC advises:

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the arrest resulted in a conviction, that doesn't necessarily mean the applicant ought to be disqualified from the job. The EEOC has said that improper use of criminal history may sometimes violate Title VII of the Civil Rights Act of 1964. This can happen, the EEOC says, when employers treat criminal history differently for different applicants or employees.

Mug Shots on the Web

In talks with clients and while teaching CLE classes we argue as frequently as we can that it is highly irresponsible not to distinguish between an arrest and a conviction. Yet many investigators and websites make this mistake every day. Take websites including Mugshots.com, BustedMugshots.com and JustMugshots, from which mug shots appear in Google web or image searches. As The New York Times reported recently, the sites make money by charging between $30 and $400 to remove the image of people who may have been arrested and then released immediately or acquitted at trial.

Some states are trying to get rid of the mug shot sites, which are otherwise legal to operate. Oregon and Georgia both have laws requiring sites to take down the images free of charge within 30 days for anyone who can prove they were exonerated or their record was expunged. Utah has a law prohibiting sheriffs from giving mug shots to any website that charges to delete them.'

It's not just mug shot sites that give a person's history the once-over-lightly treatment: In the first ever Fair Credit Reporting Act case involving mobile apps, the FTC settled in May 2013 with companies that created and sold smartphone applications purporting to allow potential employers to conduct criminal background checks on their employees.' Among the accusations in the complaint was that the companies failed to take reasonable steps to verify the accuracy of the information in the reports they provided.'

As we have often pointed out, there is no cheap and quick way to conduct a thorough, nationwide criminal background check. Other than law enforcement databases, a complete criminal check would cost over $1,000 in fees to state records authorities alone. The best you can usually do is to check with the state police or state court system in the states where someone most likely would have committed an offense.

FCRA Crackdown

Relying on unverified databases instead of admissible public records can cost you: The FTC sent warning letters this year to 10 background check companies that provide quick, cheap background reports stating that they may be violating the Fair Credit Reporting Act. The FTC said that, among other potential violations, the background check services had not taken reasonable steps to verify the accuracy of the information contained in their reports.'

What makes a background checker reasonable in verifying information? At the very least:

• Your investigator needs to find the actual public record on which a database is basing its assertion. To report that Robert L. Doe was arrested for arson without being able to say how his case was disposed (Convicted? Acquitted? Pled to a lesser offence?) is simply unacceptable. The FTC thinks so too.
• You need to make sure that the Robert L. Doe in the report is the same Robert L. Doe you are investigating. You take reasonable steps to check by using date of birth, an address, a photograph, a signature, or some other reasonably compelling piece of evidence. Just taking at face value the word of a database or website is not enough.
• If you run out of time, money or both and you are not sure whether the public record of a bad act pertains to the person you are investigating, say so. Tell your client you are not able to confirm whether the Robert Doe who was arrested is the same person being considered for a job.

Investigators should never even start work on a pre-employment check until a prospective employee has signed a Fair Credit Reporting Act release. The FCRA instructs employers to advise a job applicant in writing that a background check will be conducted (whether it's a credit check, a criminal background check, or even a check just for civil litigation). The employer must obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Fines

The price of violating this law can be steep. Ask HireRight Solutions, which was hit with $2.6 million in fines last year for violating the FCRA. Background screeners are supposed to provide their reports to job applicants if asked, and must reinvestigate disputed findings and then report on those to the applicant. (15 U.S.C. ' 1681(g)(a); 15 U.S.C.” 1681(i)(a)(1)(A) and 15 U.S.C. ' 1681(i)(a)(6). HireRight failed to do at least some of these things, according to the complaint.

For jobs that will pay $75,000 a year or less, arrest records going back more than seven years may not be reported in a pre-employment check, but convictions from any date may be reported. There is a seven-year limit on civil judgments and tax liens that may be reported, and a 10-year limit on bankruptcies. One kink in the law that helps employers is that if background researchers mistakenly report information they are not supposed to (for instance, a 12-year-old DWI conviction), employers may still consider that conviction in deciding whether or not to hire, according to the FTC.

If the background check gets to the point of doing interviews, Under the Fair Credit Reporting Act, a report based on interviews needs to:

• Verify public record information during the 30-day period before the report is issued;
• Confirm the accuracy of information obtained through interviews, unless the person interviewed is the best source; and
• Avoid any inquiry that would violate federal or state equal employment laws.

The EEOC Gets Active, Then Slapped Back

Last year, the EEOC issued guidance to employers when a PepsiCo bottling subsidiary settled with the agency for $3.1 million after being caught screening applicants who had been arrested, but never convicted. The agency went after the company because the policy disproportionately affected some 300 African-American applicants.

Even if an applicant turns out to have been convicted of a crime, the EEOC's guidelines urge employers to consider the crime, its relation to an applicant's potential job, and how much time that has passed since the conviction. The guidelines also recommend that employers review each case individually, and allow applicants to show why they should be hired despite a conviction.

This year, however, the EEOC was slammed in a memorandum opinion in federal court, when a judge firmly rejected the idea that the mere conduct of criminal background checks had an improper disparate impact on job applicants (EEOC v. Freeman, 09-cv-02573, United States District Court for the District of Maryland, Memorandum Opinion 8/9/2013).

“Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable,” the opinion said. “Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. ' (E)ven the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions.”

The court reasoned that by bringing actions that appeared to ban the use of criminal checks at all, the EEOC placed companies in the position of having to choose between possibly hiring convicted felons and exposing them to potential liability, or else run the risk of an EEOC action by using the public information of a criminal or fraudulent act.

'Ban the Box' Sweeping the Country

Beyond the FCRA and the EEOC, there are new state laws to worry about that may add extra restrictions on what investigators and employers can look at. In California, arrest records are completely off limits for pre-employment checks unless a conviction resulted. Even then, some convictions remain off-limits too.

California's “Ban the Box” law is just one example of state, city or county laws in more than 20 states and 51 cities around the country that limit to various degrees the kind of information about a person's criminal past that can be reported to or used by prospective (or current) employers.

A Wall Street Journal article this past summer featured the firing of a person in Richmond, CA, when his employer found out he had recently served 16 months in prison for selling heroin. Another person in the article who served six months in prison for arson in 2009 was quoted as supporting Richmond's new ordinance that forbids city government from asking about any job applicant's criminal history.

In all, 10 states restrict criminal background checks for job applicants. Some allow the reporting of convictions but not arrests going back seven years; some such as Massachusetts and Washington make an exception for jobs that will pay $20,000 or above. In California, no criminal activity older than seven years may be reported on job applicants. The same restriction in California goes for unsatisfied judgments, paid tax liens, and accounts placed for collection.

In some cities such as New York, criminal history may not be the subject of an inquiry to certain city job applicants during the initial application or interview. In Buffalo, most private- sector employers with 15 or more employees may not inquire about criminal history of applicants. Exceptions are for licensed trades or professions; and jobs that include supervising the young, the elderly, or any physically or mentally disabled. This is not unusual: In most such laws around the country, certain “sensitive” jobs such as police officers and teachers may still be subject to criminal checks, which are mandatory under federal law or state laws.

Ohio and Texas come at the issue from the other direction. They have laws protecting employers from tort liability when they hire ex-offenders.

But would not asking about criminal history guarantee that the issue would never come up? Certainly not. Suppose a reference mentioned it? We often like to call people who are not listed as references by applicants, because we think you get a more balanced idea of someone's character that way. What if one of them mentioned the criminal history of the applicant?

Like all “Right to be Forgotten” rules, the best we can usually do with something already written down is to enforce a Right to Suppress. Short of sealing or expunging a judicial record, it will always be accessible. If it's been written about in the newspapers or on the Internet, it can probably never be completely eradicated.

But some states are trying. Effective this year, Georgia has had a law that shifts the burden to agencies responsible for restricting criminal data eligible for expungement and restriction, and also expands the types of criminal history eligible for expungement or restriction from availability to the public. The information now subject to restriction includes certain arrests that are not referred for formal charge and dismissals by prosecutors without seeking formal charges.

Philip Segal is a New York attorney and the founder of Charles Griffin Intelligence, a New York firm specializing in fact investigation for lawyers. He spent 19 years as a journalist with The International Herald Tribune, The Wall Street Journal, The Economist Group, and NBC News, among others. He can be reached at [email protected].

How do the fast-spreading “Right to be Forgotten” and “Ban the Box” initiatives affect employers looking to screen for criminal activity among their job applicants? Not only do they dictate if and when you are allowed to do a criminal background check on a potential worker, but they have also prompted a new federal government push to punish investigators who take shortcuts and come up with the wrong information.

Are you concerned that an applicant was convicted of arson ten years ago? In some places, it may be illegal to deny her a job because of that. Even if you can deny her the job, you could still get into trouble for refusing to interview her on the basis of that conviction.

The 'Right to Be Forgotten'

“Right to be Forgotten” is a movement gaining ground in Europe, where many public records are already less accessible than they are in the U.S. But now in the U.S. too, it seems that every week or two a new county, city or state is making it harder to ask about criminal backgrounds of prospective employees (or even current ones) by passing what are known as “Ban the Box” laws.

Some groups such as the National Employment Law Project argue that an old conviction for arson or embezzlement should not keep applicants from being considered for most kinds of jobs. Even where looking at criminal records is allowed, the Federal Trade Commission (FTC) and Equal Employment Opportunity Commission (EEOC) have been increasingly aggressive in going after real or suspected abuses of the law by employers who conduct their own background checks or who contract the searches out.

While prospective employers need to exercise caution about illegally asking for or using information that is freely available, they face a separate hazard just as large: the chance of being fed unreliable data by research or investigative companies that fail to check the accuracy of what they report.

Arrest vs. Conviction: You Mean There's a Difference?

According to the EEOC, “there is no Federal law that clearly prohibits an employer from asking about arrest and conviction records.” The key is to know when you can ask, how far back in someone's criminal history you can ask about, and how you use the results of your inquiry.

The part of a criminal check that can cause the most problems is the failure to distinguish between arrests and convictions. The EEOC advises:

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the arrest resulted in a conviction, that doesn't necessarily mean the applicant ought to be disqualified from the job. The EEOC has said that improper use of criminal history may sometimes violate Title VII of the Civil Rights Act of 1964. This can happen, the EEOC says, when employers treat criminal history differently for different applicants or employees.

Mug Shots on the Web

In talks with clients and while teaching CLE classes we argue as frequently as we can that it is highly irresponsible not to distinguish between an arrest and a conviction. Yet many investigators and websites make this mistake every day. Take websites including Mugshots.com, BustedMugshots.com and JustMugshots, from which mug shots appear in Google web or image searches. As The New York Times reported recently, the sites make money by charging between $30 and $400 to remove the image of people who may have been arrested and then released immediately or acquitted at trial.

Some states are trying to get rid of the mug shot sites, which are otherwise legal to operate. Oregon and Georgia both have laws requiring sites to take down the images free of charge within 30 days for anyone who can prove they were exonerated or their record was expunged. Utah has a law prohibiting sheriffs from giving mug shots to any website that charges to delete them.'

It's not just mug shot sites that give a person's history the once-over-lightly treatment: In the first ever Fair Credit Reporting Act case involving mobile apps, the FTC settled in May 2013 with companies that created and sold smartphone applications purporting to allow potential employers to conduct criminal background checks on their employees.' Among the accusations in the complaint was that the companies failed to take reasonable steps to verify the accuracy of the information in the reports they provided.'

As we have often pointed out, there is no cheap and quick way to conduct a thorough, nationwide criminal background check. Other than law enforcement databases, a complete criminal check would cost over $1,000 in fees to state records authorities alone. The best you can usually do is to check with the state police or state court system in the states where someone most likely would have committed an offense.

FCRA Crackdown

Relying on unverified databases instead of admissible public records can cost you: The FTC sent warning letters this year to 10 background check companies that provide quick, cheap background reports stating that they may be violating the Fair Credit Reporting Act. The FTC said that, among other potential violations, the background check services had not taken reasonable steps to verify the accuracy of the information contained in their reports.'

What makes a background checker reasonable in verifying information? At the very least:

• Your investigator needs to find the actual public record on which a database is basing its assertion. To report that Robert L. Doe was arrested for arson without being able to say how his case was disposed (Convicted? Acquitted? Pled to a lesser offence?) is simply unacceptable. The FTC thinks so too.
• You need to make sure that the Robert L. Doe in the report is the same Robert L. Doe you are investigating. You take reasonable steps to check by using date of birth, an address, a photograph, a signature, or some other reasonably compelling piece of evidence. Just taking at face value the word of a database or website is not enough.
• If you run out of time, money or both and you are not sure whether the public record of a bad act pertains to the person you are investigating, say so. Tell your client you are not able to confirm whether the Robert Doe who was arrested is the same person being considered for a job.

Investigators should never even start work on a pre-employment check until a prospective employee has signed a Fair Credit Reporting Act release. The FCRA instructs employers to advise a job applicant in writing that a background check will be conducted (whether it's a credit check, a criminal background check, or even a check just for civil litigation). The employer must obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Fines

The price of violating this law can be steep. Ask HireRight Solutions, which was hit with $2.6 million in fines last year for violating the FCRA. Background screeners are supposed to provide their reports to job applicants if asked, and must reinvestigate disputed findings and then report on those to the applicant. (15 U.S.C. ' 1681(g)(a); 15 U.S.C.” 1681(i)(a)(1)(A) and 15 U.S.C. ' 1681(i)(a)(6). HireRight failed to do at least some of these things, according to the complaint.

For jobs that will pay $75,000 a year or less, arrest records going back more than seven years may not be reported in a pre-employment check, but convictions from any date may be reported. There is a seven-year limit on civil judgments and tax liens that may be reported, and a 10-year limit on bankruptcies. One kink in the law that helps employers is that if background researchers mistakenly report information they are not supposed to (for instance, a 12-year-old DWI conviction), employers may still consider that conviction in deciding whether or not to hire, according to the FTC.

If the background check gets to the point of doing interviews, Under the Fair Credit Reporting Act, a report based on interviews needs to:

• Verify public record information during the 30-day period before the report is issued;
• Confirm the accuracy of information obtained through interviews, unless the person interviewed is the best source; and
• Avoid any inquiry that would violate federal or state equal employment laws.

The EEOC Gets Active, Then Slapped Back

Last year, the EEOC issued guidance to employers when a PepsiCo bottling subsidiary settled with the agency for $3.1 million after being caught screening applicants who had been arrested, but never convicted. The agency went after the company because the policy disproportionately affected some 300 African-American applicants.

Even if an applicant turns out to have been convicted of a crime, the EEOC's guidelines urge employers to consider the crime, its relation to an applicant's potential job, and how much time that has passed since the conviction. The guidelines also recommend that employers review each case individually, and allow applicants to show why they should be hired despite a conviction.

This year, however, the EEOC was slammed in a memorandum opinion in federal court, when a judge firmly rejected the idea that the mere conduct of criminal background checks had an improper disparate impact on job applicants (EEOC v. Freeman, 09-cv-02573, United States District Court for the District of Maryland, Memorandum Opinion 8/9/2013).

“Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable,” the opinion said. “Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. ' (E)ven the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions.”

The court reasoned that by bringing actions that appeared to ban the use of criminal checks at all, the EEOC placed companies in the position of having to choose between possibly hiring convicted felons and exposing them to potential liability, or else run the risk of an EEOC action by using the public information of a criminal or fraudulent act.

'Ban the Box' Sweeping the Country

Beyond the FCRA and the EEOC, there are new state laws to worry about that may add extra restrictions on what investigators and employers can look at. In California, arrest records are completely off limits for pre-employment checks unless a conviction resulted. Even then, some convictions remain off-limits too.

California's “Ban the Box” law is just one example of state, city or county laws in more than 20 states and 51 cities around the country that limit to various degrees the kind of information about a person's criminal past that can be reported to or used by prospective (or current) employers.

A Wall Street Journal article this past summer featured the firing of a person in Richmond, CA, when his employer found out he had recently served 16 months in prison for selling heroin. Another person in the article who served six months in prison for arson in 2009 was quoted as supporting Richmond's new ordinance that forbids city government from asking about any job applicant's criminal history.

In all, 10 states restrict criminal background checks for job applicants. Some allow the reporting of convictions but not arrests going back seven years; some such as Massachusetts and Washington make an exception for jobs that will pay $20,000 or above. In California, no criminal activity older than seven years may be reported on job applicants. The same restriction in California goes for unsatisfied judgments, paid tax liens, and accounts placed for collection.

In some cities such as New York, criminal history may not be the subject of an inquiry to certain city job applicants during the initial application or interview. In Buffalo, most private- sector employers with 15 or more employees may not inquire about criminal history of applicants. Exceptions are for licensed trades or professions; and jobs that include supervising the young, the elderly, or any physically or mentally disabled. This is not unusual: In most such laws around the country, certain “sensitive” jobs such as police officers and teachers may still be subject to criminal checks, which are mandatory under federal law or state laws.

Ohio and Texas come at the issue from the other direction. They have laws protecting employers from tort liability when they hire ex-offenders.

But would not asking about criminal history guarantee that the issue would never come up? Certainly not. Suppose a reference mentioned it? We often like to call people who are not listed as references by applicants, because we think you get a more balanced idea of someone's character that way. What if one of them mentioned the criminal history of the applicant?

Like all “Right to be Forgotten” rules, the best we can usually do with something already written down is to enforce a Right to Suppress. Short of sealing or expunging a judicial record, it will always be accessible. If it's been written about in the newspapers or on the Internet, it can probably never be completely eradicated.

But some states are trying. Effective this year, Georgia has had a law that shifts the burden to agencies responsible for restricting criminal data eligible for expungement and restriction, and also expands the types of criminal history eligible for expungement or restriction from availability to the public. The information now subject to restriction includes certain arrests that are not referred for formal charge and dismissals by prosecutors without seeking formal charges.

Philip Segal is a New York attorney and the founder of Charles Griffin Intelligence, a New York firm specializing in fact investigation for lawyers. He spent 19 years as a journalist with The International Herald Tribune, The Wall Street Journal, The Economist Group, and NBC News, among others. He can be reached at [email protected].