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Insiders Secrets of Criminal Background Checks – Webinar

September 8, 2009 by  
Filed under Blog, Webinars

I’m going to speak for a few minutes on criminal background checks and then I’m going to open it up to a “Q and A” so we will save any questions you have in mind for the end.  Let me start by giving a little background on myself and on my company.  I am Kevin Connell and my company is AccuScreen.  I started AccuScreen back in 1994 – exactly fifteen years ago – almost to the day.  We incorporated in the state of Florida in May of 1994.  Prior to that I worked at Proctor and Gamble for about seven or eight years.  One tip that I give to people as I’m speaking is make sure that whoever you are speaking to has some sort of background on the topic you are looking to learn more about.  I see plenty of people out there that give advice and they really have no reason to be giving advice because they don’t know anything about the topics. 

 In terms of specifically background checks, since I started the company in ’94 many things have changed in terms of the medium that we use to get information back, but not a whole lot has changed in terms of the actual searches.   The internet has been around since the 1960′s and the 1970′s, but the internet back in ’94 was not in the user-friendly format that it is today.  Information has always been out there, we are just able to get the information quicker to you and in a more user-friendly format. 

 But in terms of the criminal records themselves, that really hasn’t changed a whole lot.  The business that I am in is basically fraud prevention and making sure that in terms of – if you are hiring somebody – that you are hiring an asset – somebody that is going to benefit your company, benefit your organization – to do the job at hand.  With the internet not only can you get information quickly, but there’s the good side of the internet, and then the negative side of the internet.  And anybody who has followed me, what I have talked about a lot lately are some of these scams that have taken place.  And some of these are quite amusing stories.  One on the social media front was on Fox a few weeks back talking about what employers and what employees need to know about social media – such as Facebook, MySpace, Twitter – very, very powerful technologies, but with that technology there is a negative side to it. 

 Anybody that has a cell phone, for instance – and this happened a few months ago in Ohio – we had an individual who – it was his birthday – and he thought it would be a good idea to film himself taking a bath in the bathtub of this restaurant.  And before you know it, it was loaded up on YouTube.  And this is what I’m talking about when I talk about preventing hiring the employee from hell.   This certainly fit the description well.  He not only had another person in the restaurant filming him while he was in his birthday suit – instantly when it was uploaded to YouTube, the Health Department of Ohio was called in, the restaurant was closed down – just because somebody thought it was going to be a pretty funny thing to do.  The sad thing is he lost his job as well as the managers and the other people that were there.  Plus whoever was working that shift or that day, they were not going to be making any money because the restaurant was closed down.  The business was affected, and personally this particular restaurant I would never go into again.  I don’t care how efficient you are at cleaning and sanitizing the place, that’s just not the publicity that an organization needs.   

 In the fifteen years of doing background checks and helping companies prevent fraud, prevent embezzlement; prevent hiring the employee from hell, usually when the economy faces tough times fraud increases.  You’ve seen that in the papers and you’ve seen that in the news for the past several months.  What was Madoff doing for the past twenty years?  A lot of people thought that they were investing their money well, but in terms of what Madoff was selling, he was selling basically statements.  He had a convoluted, very organized ponzi scheme going on.  And he was selling statements.  He was selling people what they thought they were going to be retiring on.  And that’s just one example and you see many of these “Madoff’s” coming out of the woodwork.  That’s usually what happens when the economy is challenged.  Usually people are pulling out money.  They hear about a Madoff, a ponzi scheme, and then they question whether their own money is safe.   Then you see all of these other folks in terms of being convicted of fraud.  

 Another case I’ve talked about lately – and anybody who has stayed in a hotel can appreciate this, especially if you’ve been a business traveler, or even if you’ve gone with family and friends to hotels.   There is a scam going around the entire United States, and basically the scam is that somebody will be calling the front desk of a hotel (in one case they actually bypassed the hotel and went to an individuals’ guest room)  and they are posing as a security company.  And when I tell you this story you’re going to say “No way, Kevin.  There is no way that this possibly could happen.”  But you do your own search on this and I’d be happy to send you some of the stories.  But this actually happened out in Nebraska.  Somebody had called the front desk, and the front desk person answered the phone and a person in a deep voice identified themselves as belonging to the security corporation and needed them to pull the fire alarm in the hotel.  And this is a well known chain.  This isn’t just some hotel that you’ve never heard about off the side of the road.  But it could happen to any hotel.  But in this case they asked them to pull the fire alarm -which this person without any verification of who they were speaking to immediately pulled the fire alarm.  So the fire alarm goes off in the hotel and naturally causes an uproar with all of the guests.  And then the front desk person asks the person who was scamming the hotel “How do I get the alarm off?”  The scammer then said the only way to stop the fire alarm was to take the fire extinguisher like a hammer and brake off one of the sprinkler heads in the front lobby, which was what this person went to do.  He hit the sprinkler head and then the problem you have now is that the front lobby is raining water from the sprinkler system.   The third and final thing – there was a truck driver who was operating a rig and apparently he had just checked in.  He solicited any assistance that he could provide.  And the person who was on the phone said that if the sprinkler head could not do the trick to shut the fire alarm off, the only last resort was to break the front glass windows of the front lobby.  This person who was driving his rig – if you can picture this happening – drove his rig in through the front door of this hotel and smashed the entire lobby doors.  So you can just picture the enormous problem and the enormous amount of damage that was done to this hotel because the person who was hired by somebody obviously was not the best person to be operating in such a position of responsibility as the front desk.  That is just one scam and it’s going out from Nebraska.  It happened in Orlando – I’ll save that story for another time.  But what actually happened in Orlando was that the caller actually reached somebody’s guest room.  Again, I’ll save that for another time, but they were being told to do the same sort of scam, same sort of prevention except for it was a gas leak in the person’s room. 

 Let’s dive into the thing that we want to cover today and that’s criminal record checks.  First and foremost, before I tell anybody who is either currently doing criminal checks or who has not done criminal checks, the first and foremost thing that you must do before you even search any jurisdiction, is you must confirm the identity of the person that you are looking to do a search on.  I see many people make a mistake, they run criminal searches, but they’re doing an incomplete search and it’s simply “Garbage in, garbage out”.  If you have the person’s wrong name or their identifiers – and by identifiers I mean date of birth, social security number, a person’s drivers’ license number – those would be identifiers.  Because most of the people that are doing criminal checks are not doing a fingerprint search.  A fingerprint search is done and it’s submitted through – and unless you are in an industry that has a law mandating your permission to access the FBI database, you are doing a name search on the individual.  So that is why I am saying that it is so important that when you do a search that you do a search under the person’s name or former names.   And one of the tricks there is to make sure that you have an excellent applicant release.  And the applicant release shouldn’t be one of these forms that you pick up at the local office supply store, like an Office Depot.  You want to make sure that you have your own customized application.  Because the application to you, the person that is hiring, is your tool to screen out the individuals that you do not want working for your organization. 

 We’re not looking to screen people in.  I see many people make the mistakes of taking an application, interviewing the person, going by their gut instinct – if they say or do something within the first 30 to 40 seconds of the interview, I see many people that are interviewing people actually come to their own conclusion, and then they are just looking for ways to screen that person in, ways to justify their hiring decision.  My argument is flip it around.  What you should be doing is looking for reasons to disqualify the person that you are hiring.  Don’t fall to the common hiring mistake of as soon as you see the person and you start to get a good feel is that you just start giving easy questions and not penetrating into areas that you are uncomfortable with.  As human beings we naturally want to think of the good in people.  We want to think that everything that they say is true when in fact – and this is just through our own statistics – over 40% of the applicants that we screen have some form of discrepancy.  Now that could be dates of employment off, that could be somebody who is claiming to have a license to operate medicine or law when they do not in fact have a license or the license is suspended.  If you’ve got somebody that is driving on company time you obviously want to make sure that you are verifying that they do have the legal license to drive – whether that’s an outside salesperson, a delivery person, or the person that’s going down the street to pick up lunch for the office. 

 So in terms of identity, you need a good release.  One of the best tools you can use is a social security number verification to verify whether that social security number matches the person that you are looking to hire.  There is also a social security number validation and the difference between that is a validation is just validating that that number has been issued, it’s a legal number, and it doesn’t belong to a dead person.  So the social security number validation is different from the verification.  The verification will verify whether there’s a name match and in many cases it will show where that person has lived prior.  Most people move around in their lives.  They don’t usually stay in the same state and the same jurisdiction.  So if you’re only searching in the particular state, county, or local jurisdiction, you may be missing something.  And I see many companies that are looking to do a quick screen and get the information back.  But they don’t take the time to actually verify the individual’s identity.

 Another good way to verify somebody’s identity is through the driver’s record, or some places call it the MVR – the motor vehicle record check on an individual.   There are two reasons why you would want to run a driving record on somebody.  One is if they are driving on company time you want to make sure that you are hiring somebody that obeys the traffic rules and regulations that are out there.  You should have a good policy on what will preclude somebody.  You might have a one up signature off on somebody that you get certain information back on.  With the driving record and identity, usually the person has to have (unless the live right down the street from you or they are taking public transportation) a reliable form of transportation and they’re going to have to be driving to and fro to work.  So another reason why, even though they might not have in their job description driving duties, when you look at a driving record it will confirm their identity.  When you’re running a criminal check one of the identifiers that we’re looking for is their name.  And by name I mean their full name, their middle initial or middle name, any names that they went by before.  You can’t ask them what their maiden name was, but you can ask any other names that you have gone by.  

 Another myth in terms of  doing background checks is a lot of people get uneasy about asking somebody’s date of birth.  When the EEOC has for years permitted the use of  the date of birth for background screening purposes.   There is also flow analysis depending on where the individual is in the hiring process.  By flow information I mean information that you need for I-9, the person’s race and gender.  These are all identifiers when you get a criminal record back to confirm that this individual belongs to you or not.  Now take a name like Smith, Jones, Gonzalez – all of those are very, very common names, and if I had you go into any court house, large or small, you are going to have multiple people with that same name.  I mean, John Smith – if you don’t have a date of birth, if you don’t have a middle initial, all you are going to get back are positive, possible records.  Now these positive, possible records are not what you want.  You want to know whether this belongs to the person that you are looking to hire or not.  You want a yes or no answer.  You want as much as possible that it definitely belongs to my person or it definitely does not. 

 There are protections for the applicant, and again that gets back to having a good release.  And by a good release, I’m talking about you letting them know exactly what the applicant is permitting you to do in terms of the background check.  So I’ll go over just some highlights of different releases.  But on our release that we give to our clients it clearly shows applicant authorization and consent for release of information.  If you’re using one of these generic employment applications there is a spot that says at the end that the information that you give on the application is accurate and true.  But with the Fair Credit Reporting Act you want to have a distinct, separate release.  And this is what I am talking about.  And I’ll be sending this release form out to everybody who has registered for the call.

 Here are just some highlights.  In connection with my application for employment or continued employment, I understand that a consumer report will be ordered that may include information as to my character, general reputation, personal characteristics, etc., etc.  I understand that in compliance with applicable law and as directed by company policy – again that’s why you want to have some sort of company policy.  I have worked with Fortune 100 companies that you would think that they had some sort of policy when they got criminal record in background reports back.  In one particular example they were doing background checks for years and they had multiple offices not only throughout the United States, but they were multi-national.  They had offices abroad.  So having a consistent policy is extremely important.  And one key thing on an applicant release is – not only do you want to do a check – and in some industries it’s mandated that you do this – not only doing a pre-employment check, but continued employment or post-employment checks.  In some cases we have clients that do this annually or they do it once every six months.  We call it infinity screening.  Infinity screening means that when we do checks for you, not only do we do pre-employment but we continually monitor that individual and that release does include that in there.  So you want to make sure that it says not only for pre-employment but for continued employment. 

 And there are some specific states – particularly Massachusetts, Minnesota, Oklahoma, New York, Maine, Washington, New Jersey, and California – you do need to have some language on your release that basically says that you’re an applicant that resides in those states if you want a free copy of the background report that you give them an “opt in” so they can check off that yes, please send me a copy of the report.  My experience is that most people do not check off that box, but again it’s an “opt in”.  They will not automatically get it.  California actually started that procedure.  It caused a lot of headaches and red tape in California and they have since amended it.  And then other states like Oklahoma and Minnesota and then shortly after that New York, Massachusetts, and the other couple of states instituted it as well.   But again it’s an “opt in”.  They must opt in if they want to get a copy of the report. 

 And then there’s some other language that you want to have in there – the person’s name, former name and their other names.  You want them to sign off on this form obviously.  And actually that signature can prove helpful if there is a criminal record and we go to the point of actually retrieving criminal records where the person may have signed off on a diversion program, or signed off on a probation, or if they entered prison.  Their signature should be there.  Date of birth is on our form, and not only current address but also former addresses, and please listing all other cities and states that they have resided in for the past seven years. 

 Most of the background checks that are done are a seven year window.  And the seven years came from the Fair Credit Reporting Act.  The FTC basically used that as a guideline.  The Fair Credit Reporting Act was initially a law that regulated banks and institutions in lending.  And they just took their umbrella powers that the FTC, the Federal Trade Commission, and made it broadly affecting people that are looking for credit for employment purposes.  Because that’s basically what you are doing, you are verifying information for employment purposes.  You’re not looking to grant a loan, although the loan that you are involved in is human capital and in many cases much more involved in its financial commitment.  Let me just look at the average starting pay of the person that works hourly for you.  You’re easily committing $20,000 in salary not including, benefits, your training time, and your interviewing time.  When it comes down to it it’s easily a $25,000 investment on any employee that you bring aboard. 

 In terms of criminal records there are searches that you can do and there are searches that you cannot do.  So for most of us on this call you can’t do a national or nation-wide search.  And even if you could – say that there was a law mandated for your industry that you could now do FBI checks.  There is a big myth out there – and I was up in the Cleveland, Ohio area last week talking to a few people about this – the common myth is that there is an FBI record on everybody since we were born to present day.  And that is just not the case.  The FBI is mainly an arrest database.  It is mainly felony information.  And there’s an important take away on felony information.  The only difference in many cases between a felony and a misdemeanor is the amount of drugs or goods that were involved or merchandise involved in a theft or a drug bust, whether a fire arm was used or not and plus we have different states that have different classifications.  So the other big take away that I want you to look at is on your employment application.  If you still have the question that asks, “Have you ever been convicted of a felony?” or “Have you ever been convicted of a felony within the last seven years?”   I’m sorry to report that that record is extremely outdated.  The better way to ask that question is “Have you ever been convicted of a crime?” versus getting into felonies and misdemeanors.  Because I can give you a dozen different serious misdemeanors depending on the policy and depending on the position that you are hiring for that it would cause you great hesitation to hire somebody with a serious misdemeanor.  And I do realize that there are different states and different laws but we’re not going to get into the legal aspects of this.  But the thing that I want you to take away is if you are using that question you need to know that it is an outdated question.  It was an outdated question fifteen years ago.  Any time that I saw somebody that had said “Have you ever been conviction of a felony?” – and I know it’s out there because I meet with clients, I meet with people that I’m speaking before and they come up to me and they show me their application.   And the very first thing that I do when I see that is give them some alternatives.  So an alternative would be “Have you ever been convicted of a crime, pleaded guilty or no contest to a criminal charge, or entered into an agreement setting forth the conditions for the eventual dismissal of a criminal case?”  And then you give them an opportunity to answer “yes” or “no”, and if yes, please specify what the offence was, where and when it occurred, and please use a separate sheet if necessary.  And then having this verbiage also in there – Criminal convictions are not an absolute bar to an employment and will only be considered in relation to job requirements.  And I’ll be sending this along with two other ways to ask that question. 

 The first one I just gave you pretty much covers and addresses any type of gray area.  When an applicant is lying they are rationalizing to you why they are lying.  A person is usually lying for one of two reasons.   They are lying because they want you to believe something that is false about them.  They may want you to believe that they are more qualified for the position than they actually are.  That is one form of lying.  The other form of lying is that they are looking to cover up something that they don’t want you to know about them, that they don’t want to reveal to you in the job interview or during employment.  So those are basically the two categories of lying.  Because I’ve seen many, many cases where somebody puts down on their form – they answer the question and say “well, this was pleaded out”.   The FDIC says if you’ve plead out a case, that is classified as a “yes”.  You’ve plead out to a case.  By the FDIC I mean the Federal Depositors Insurance Corporation.  The FTC – Federal Trade Commission does not (and you can look through all of their verbiage in the Fair Credit Reporting Act) specifically define what a criminal conviction is.  So having it in your policy is of the utmost importance.  Another simpler way to ask that question: “Have you ever been convicted of a crime or been placed on probation?”   There’s a big difference between probation and parole.  Probation could be a felony; it’s normally a misdemeanor.  Probation is usually an extended period of time.  There may be no jail time and they’re on probation for three years.  They have to stay out of trouble for that period of time.  If they violate their rules of probation, and one of the rules could be that they didn’t check in with their PO – their probation officer.  That could be a violation of probation.  Another violation of probation could be that they cause a crime, it might not be the same crime but if they’ve violated a crime they could be convicted of violating their probation.  Parole in most cases is on a felony.  Somebody who has been convicted of a very serious crime usually has been sent to the big house, the state prison and they’re on parole.  So if they’re on parole there is a difference.  So you should understand the difference between what probation is and what parole is.  Big, big difference and again, one has to do more or less with misdemeanors and the other has to do with felonies.  

 In terms of the criminal records out there, you can’t access the National Criminal Information Center.  You can’t access the FBI database.  There is, and we do offer, a national criminal file.  I see many people play up the national criminal file making it synonymous with like an FBI check which it is not.  It is a private database that has been compiled in terms of our national criminal database.  There are different sources of information that we compile from states that will provide the information on all of their criminal records.  It’s entered into a large database plus any previous records that we have come across – they’re called “priors” – previous records that we have known hits on go into the information in this database.  If you are in such states as Florida or Texas, the national criminal file is extremely good.  In Ohio the national criminal database is extremely good for a portion of the state.  But when you’re talking about a state like Massachusetts, the information that’s in the national criminal file is mainly Department of Corrections information.  The national criminal file does have all sexual predator information in it from all 50 states.  But if you’re looking for county criminal checks, or in Massachusetts they call it CORI (Criminal Offender Record Information), which is their state database.  The information is not in there.  You should be aware of that when you are running a criminal check.  So there is a national criminal database out there.  It is a good tool to use to create a wider net to improve the current criminal background check process that is in place for you.  Some of you may be just doing county checks.  Some of you may be doing state checks.  There are pluses and minuses of both of those.  If you were able to do both that would be great.  Particularly in Massachusetts I would say that between doing a county check and a CORI check you would be better off with a county check.  Just because Massachusetts only retains certain information in CORI only for a certain amount of time.   It’s usually for five years, so if a person’s been convicted of a felony for the past five years, not seven years or longer, it would be in CORI, but if somebody had a misdemeanor the information could be out of there as soon as in two years.  So certain states have better databases and also certain states are quicker at getting information back to you.  In Florida and Texas you can get the information back in some cases instantly, or same day or next day.  In Pennsylvania or in Massachusetts your talking anywhere from three to five days to Massachusetts where the average (and their average really hasn’t changed in the past fifteen years) it’s usually up to a month before you get information back. 

 So you’ve got a county check, you’ve got a state check, and then the final area would be federal searches, a federal district court search, and there’s ninety-four of them throughout the U.S.   The website that you could go to to visit for federal criminal databases is Pacer.  I’m not sure if it’s pacer.com, or pacer.org, or pacer.gov, but if you use your favorite search engine you can find Pacer.  The pluses of Pacer are that you can easily get set up with them and easily search information.  The problem with Pacer is identifiers.  Pacer does not as a general rule give you identifiers so you’re going to be getting name matches on an individual.   When we’re doing federal searches, Pacer is one source that we use.  Other sources are the actual researcher going in and out of a federal district court, and, in many cases, if there’s a possible record on somebody who has a common name we’re actually having to call up and speak to either the district attorney who is involved in the case, or the attorney general’s office.  In different parts of the country that information can be more challenging than others. 

 Again, you are making a decision on an applicant and if you don’t have certainty involved with your decisions, then somebody’s going to have to do the leg work to make sure that that crime either belongs to that individual or does not belong to them.  It is not a perfect science, especially when you’re dealing with over 3,200 jurisdictions, county court houses or in Louisiana parishes that you are searching.  Federal searches and state searches – they all have different nuances involved, but the main information that you want to take away is – number one the case number and whether it was a felony or a misdemeanor.  In some cases you’ll come across traffic infractions or municipal ordinances.  Most municipal ordinances you are not concerned with.  Some traffic infractions you may, depending on if this was a speeding ticket that somebody had once three years ago, or is it somebody who has multiple DWI or DUI infractions against them.  You want to verify all of that information before moving ahead. 

 And last, but not least is if you’re ever doing a criminal check and the information that you get back just doesn’t check up, you can always get the applicant involved in by saying this is the information that you’ve come across.  With the Fair Credit Reporting Act if you’re making a decision based on the background report, you do by law have to let the applicant know that you’re making a decision, or are about to make a decision.  Before you actually make the decision you’re supposed to give them an opportunity to verify whether this information belongs to them or not.  Putting the onus on the applicant is always good advice.  Also, if you are denying them employment, always make sure that you follow the guidelines of either your corporate attorney or you become as educated as you can because you can face some liability by not abiding by the Fair Credit Reporting Act.   

 At this time I’m going to open it up to any questions that anybody would like to cover.  I wanted to hit some of the broad stroke descriptions of criminal records.  I did want to get into some specific things that you need to know about before you even get into criminal records, such as verifying the person’s identity, and then trying to dispel some of the myths that are out there.  An educated consumer is normally our best client.  We want to make sure that you have the appropriate information on what is out there.  It’s always a changing landscape, but for the most part criminal records have not changed a whole lot.  The medium that you use to access it – back in ’94 it was mainly by fax, then e-mail, and then different programs where we would give you like a user name and password to access a secure part of our website that you would be able to access.  Any questions that I could answer, just fire away.  I’d love to help you out. Is there something that I didn’t cover, any clarification, any resource that I could provide to you?  This is your opportunity to ask.

 Q:   What is the best way to do a background check?  Would it be best to do it in house, or hire somebody to do it for you?

 A:   It would depend on your resources.  If you have a network – when we established a network of researchers. The network was already established.   Now we’ve refined and we’ve added researchers and we’ve taken researchers away, but we’re constantly looking to make sure that the information that we get back is accurate.  I would have to know more about the skills of your organization – whether you have several people that are doing this; how many employees that you are hiring.  I have seen some companies that do try to do it on their own and they find that it’s a pretty tedious process and if a criminal record comes back, they don’t know how to read the actual record.  Some states are better than others of having clear information with clear dispositions in there.  That might be a question that you can call me afterwards and I can walk you through more just so that I can understand your question and more importantly what your current situation is.  If you’re able to do it on your own and you’re comfortable with the information that you’re getting that’s great.  I do know that there are some complexities to criminal records, many complexities to driving records, and then there’s a whole host of other searches that we didn’t get into which are like terrorist watch lists.   If you’re in health care whether you’re doing OIG different levels – whether you’re doing a level one, level two, level three type of credentialing that you’re doing – whether you’re verifying licenses.  I’ve had some people that thought that they were getting the information back and they were actually missing some courthouses.  But, again I’d be happy to talk more specifics to that.  My experience is usually a larger organization will outsource it as a role, because even if you’re doing it – it’s just simple economics – it’s an opportunity cost.  So whether you’re doing it or your staff is doing it – let’s just say hypothetically you’ve got somebody on your staff that you’re paying $12 an hour – their time involved in that endeavor you’re paying somebody to do that.  The average background check that we do – verifying somebody’s social security number, doing a national criminal file – that’s like under $20.  A basic background check is around $50 – $60.   A full-fledged background check with drug testing is around $100.  So you can take those figures and just do the internal math whether it justifies it from an outsourcing standpoint.  The other thing is if you’re using an outside service make sure that they do have Ariston Emissions Insurance.  That’s real, real important because if you ever talk to a background screening provider here’s a question that I ask them:  “Have you ever missed a criminal record?”   If they say, “no” then I would just immediately hang up the phone because you’re dealing with human beings and human beings do make errors.  In some cases we’ve got researchers going into a courthouse, paying the clerk a fee, and then the clerk actually does the search.  I was into a courthouse recently just because I was having a meeting in downtown Tampa.  One of our clients had one of their current employees who was involved in a Medicare fraud ring and we had to actually go down.  Now you would think that a city like Tampa – it’s a major city and everything is computerized and automated and when I was in there, in the felony records department everything is in a green manila folder with paper clips.  So I took the particular file that I was interested in – I could have reviewed it and obviously there was some time and expense.  If I wasn’t in the same block I would have simply had one of my researchers do this.  But I sometimes want to get on hands and actually see what my researchers are looking at.  And in this particular file there was a case – now you could have easily missed it – but there was another case in the file that was simply misfiled.   There was another very serious felony crime having to do with sexual abuse and drugs.  Not to say that Medicare fraud isn’t serious, but this was like pouring gasoline on a fire – what I was looking at.  And as I looked further it was misfiled.  This thing belonged to an individual – the case number was off by a digit.  And that’s what I was talking about earlier – “garbage in, garbage out”.   You need to make sure that you have the correct spelling of the person’s name and that when you’re doing searches that you’re actually modifying – it’s called a Soundex – if it sounds like the name it might be spelled just a little differently.  Again, if you’re doing a computer search and you’re just searching by a specific parameter such as the way that you think the person spells their name – or two other common ways that people that are trying to throw a criminal search off is they will give a false social security number – they’ll just transpose a number, or they’ll take their date of birth and they’ll change something on it.  Say somebody’s date of birth was August 6th, 1960.  They’ll put it as August 5th or August 6th, 1958.  So they’ll change it around a little bit and many researchers when they get that information will report it back as a “no record”.  Our instructions to all of our researchers, the in house researchers that we have, is when they’re doing a search, is to look at all different ways of the person spelling their name, other ways that they spell their name and if it’s a close match on the date of birth.  It doesn’t have to be an exact match.  And my experience is nine times out of ten conservatively that the date of birth that is off by a couple of years or it’s just off by a digit really belongs to that individual.  So either the individual intentionally lied or it could have been a data entry error, a keystroke error on the clerk of the court’s duties.

 Any other questions that I can answer? 

 Q:  Yes.  This is Norma.  I did a criminal check on a person who had claimed that he had a DWI about two years ago.  Well, I found the ones that were from back in the ’70′s, but I didn’t find the one that he mentioned from two years ago.  Where can I go and double check that?  Are you going to send that information on the package that you send us?

 A:  It wouldn’t be that detailed information.  You’ve got a unique situation.  If I heard you correctly, Norma, let me just repeat the question.  You have a current applicant or a current employee that you did a recent background check on – it sounds like you pulled a driving record?  And you found one from the 1970′s, but the one that you’re looking for was just two years ago. 

Is that correct?

 Norma:  Yes.

 Kevin:  And did you pull a driving record or was this a criminal search?

 Norma:  It was a criminal record – a criminal search.

 Kevin:  Okay.  What state was this in?

 Norma:  Texas.

 Kevin:  Okay.  I think the easy solution to your situation, Norma, is – again, you did a criminal search and                         you didn’t do a driving record search – is that correct?

 Norma:  Right.

 Kevin:  Your solution is to pull his driving record.   And that’s a very good question that you bring out. 

In some states – and even if it’s supposed to be this way it sometimes is not – a DUI in some cases  is a misdemeanor, and in some cases it’s a felony, and in some cases it’s a traffic offense if it was  like a first time offense.  So, you may or may not find when a criminal record search is being done, whether it be in Texas, or Florida, or New York – you aren’t necessarily going to get the DUI or DWI.  The easy solution is pulling a Texas Department of Motor Vehicle record search. And if you have access to that you should be able to get that information back today.  I mean Texas is pretty quick about that.  And if you need any further direction on that feel free to call me or anybody on my staff.  I think you have my number, but I’ll put it out there. It’s 800-689-2228.  Or you can just go to accuscreen.com and there’s ways to contact us there.But I think that’s the easy solution.  I think when you pull the Texas driving record it should be there, and if it’s not, let me and my staff know and we’d be able to help you out.  But I think that’s the easiest solution.

Any other questions that I can answer?

Q:  Under some circumstances do you have to let an applicant know the results of a background check?  And what circumstance might that be?

 A:  Okay.  Excellent question.  Let me just repeat the question.  There are some circumstances that if you run a report, if you run a background check on somebody, the cases where you would have to let the individual know is if you do a background check on them – I’m not talking an employment verification that you do.  If you do an employment verification, if you do an education verification on your own you’re actually exempt from this.  But say you pull a criminal record check.  You use us.  You use a third party to do that – somebody that specializes in the information.  If we report back information that shows that your applicant has three felony convictions and your policy is that you cannot hire somebody based on the position that you are looking to fill, the Fair Credit Reporting Act says that number one you have to give them an opportunity.  As crazy as this sounds, but this is the way it is worded: that you have to give them “pre-adverse action notice”.  What that means is that you got information back on the background report.  We’ll just say hypothetically it’s a criminal record and we’ll also hypothetically say that these criminal records would preclude you from hiring them.  Then you have to give them pre-adverse action.  And usually pre-adverse actions says, “hey, there’s a criminal record that we have”, and you can actually just give them a copy of the report, or many of our clients just delegate it to us.  They say contact AccuScreen at this number and there’s a process that we get from the applicant or the employee.  We give them a copy of the report, so at some point the report is going to be given to them.  You might get information back from the report that is neutral, that there wasn’t a criminal record, that you pulled a background report or there was something in the background report, but it wasn’t a key influencer of your decision.  Then in that case you can simply say that whatever the situation was is that you’re moving in another direction and that you’re not hiring the person for the job.  There are cases where somebody has numerous arrests, but no convictions. And I have people ask me, “well, I don’t feel comfortable with this applicant on all of these arrests.  Can I use arrests in my hiring decision?  Can I just tell them ‘I’m not going to hire you based on the arrests’?”  That would be exposing you to some potential liability.  From attorneys that I work with the answer to that question is to find another reason if you’re not comfortable with somebody.    What I said earlier about instinct – if you have a gut instinct on somebody – the report might have come back clear, the person that you interviewed may have interviewed extremely well but something is telling your instincts that you should not hire this person or that you should not continue to hire that person, then I am saying yes, pay attention to that.  Just don’t dismiss it.  Just make sure that it is real instinct on you, because I’ve seen instinct work in the opposite direction.  That somebody thinks as soon as you meet the person that you’ve found the right person.  There are a lot of professionals at interviewing.  They can interview flawlessly.  They can tell you everything that you want to hear – especially con men, especially psychopaths or sociopaths.  I’m in an excellent book written by a colleague – study up on Robert D. Hare – Psychopaths in Suits.  What you’re trying to do is you want to unmask the person that you’re looking to hire.  You want to see who is truly the person that you’re hiring, because most of the questions that you ask an applicant, they’ve heard these questions before.  Go into any book store go on to Amazon.com and just look up “the ten toughest interview questions” or “how to answer different interview questions”.  What my secret is is to do the exact opposite of what everybody else is doing.  Whatever practices that are out there – think outside the box and think of a different way.  Just to conclude the answer to the specific question – the Fair Credit Reporting Act is “pre-adverse”, you’re supposed to tell them “some of the research that we’ve done on you has come back – we possibly are going to be moving in another direction”.    You just don’t have to definitively say that.  The Fair Credit Reporting Act doesn’t say how many days have to go by.  Some of our clients tell them that during one day and then the following day they send out either the denial of employment or the resend letter.  On average I would say three days is what I see people do.  Again, pre-adverse to the definitive “we are denying you” or “we’re resending the offer”. 

 Good question.  Any other questions that I can answer?

 Q:  If you’re getting ready to offer an applicant a position, what about asking them to bring in a driving record and a criminal report?

 A:  Sure.  In some cases that is a good practice.  The only “watch-out” would be if there’s no record on the individual, or – and I’ve seen people bring in everything from social security number cards to diplomas that are extremely authentic looking.  This gets back to computers and technology.  It gets back to what’s out on the internet.  There are places out there that specialize in diploma mills.  Diploma mills will give you a piece of paper and in some cases it’s a falsified school that they are giving you a diploma on, but there are actually diploma mills that are out there that are giving out real names of schools.  I mean the piece of paper is worthless that it’s on, but they’re giving out real information.  So diploma mills are just another “watch-out”.   If you wanted to do that, it’s fine but I would make sure that I would verify the information that you’re getting from them.   I’ll give you a couple of examples.  If you go onto the internet, and I hate to give them free publicity, but I want you – the people that are hiring and managing people – to what’s out there.  If you go to fakeresume.com, or if you just do a search for Alibi Network, you could create all of these false resumes, these false diplomas.  Most of these diploma mills get shut down and they start back up the next day.   Just be aware that if you have the applicant bring in the information – and I understand the logic.  The logic is to have them do their due diligence; have them simplify the process.  I would just make sure that you inspect the information that you get and just don’t take it at face value.  Other companies I’ve seen will do the background check and they’ll use it as an applicant fee.  They’ll actually pass the cost on of the background check to the applicant.  If everything checks out and is verified, then the company picks up the cost, but if there’s a discrepancy the applicant does not get his or her applicant fee back there.  I hope that answered that question. 

 Any other questions?  Again, there’s no such thing as a stupid question – just the question that you didn’t ask.  We’ve got some excellent questions here.  Any other questions?  It doesn’t have to be on criminal records.  It can be on anything – pre-employment, infinity screening, fraud, scams, schemes.

 Okay, it was a pleasure to be with you and I realize some people are shy about wanting to ask questions, although I think we’ve got a good cross-section of questions.  If you have any questions that you were a little shy or something popped into your head, either this afternoon or tonight or tomorrow, or even over the weekend, feel free to e-mail.  You can e-mail me directly or you can e-mail info@accuscreen.com, but I will give you my e-mail.  It’s kevinconnell@accuscreen.com.   And one last time I’ll give out our phone number – 800-689-2228.  My specific extension is 1101, and anybody on my staff can help you but I would be happy to help you out.  There will be some follow-up materials that we’ll send out that we promised to send to you.  There will be a sample release form, a sample of three different ways to ask the criminal questions, and after you get the information if there’s other information, resources, or questions just feel free – whatever the easiest way for you to contact us is.  To some people it’s through the web, other people it’s through e-mail, others they just want to pick up the phone and call.  That’s why I’m giving you a variety of ways to reach us. 

 I thank you for joining me and I wish you nothing but the best.  Take care.  This is Kevin Connell.