By Marisa Schultz, The Detroit News.
More than 1,100 Michigan ex-cons had their criminal records erased in the first six months of this year, an almost 60 percent increase that coincided with heightened scrutiny of school and health employees statewide.
With their records expunged by judges, former criminals escape detection of background checks that might have banned them from sensitive jobs or made it harder for them to find work. They also can legally tell potential employers that they have no convictions.
In the first six months of 2006, 1,124 records were erased from the 1,258 ex-cons who applied — about a 60 percent increase from the 708 ex-cons who had their records erased in the first six months of 2005 out of 939 who applied.
The growing practice amplifies the divide between those who believe that former convicts deserve a chance at redemption and those who want access to the criminal histories of educators, coaches, maids, nannies, neighbors, health care workers, other employees — or virtually anyone else.
“It’s a fine line. Should an applicant have the right to a clean start? But shouldn’t an employer have the right to protect its business, its assets and the general public?” said Kevin Klimas, president and founder of Clarifacts, a Phoenix-based employment screening firm. “There is an argument on both sides of the fence.”
Melodee Bush has seen both sides of the argument, but falls on the side of public access.
“People have a right to know who you are dealing with,” said Bush, 33, a Detroit mom who relied on day care for her two children. She has a family member seeking an expungement. “It gives you a false sense of security. That doesn’t sit well with me.”
Yet as lawmakers have required background checks for more employees, more lawbreakers have gone to judges to have their felonies or misdemeanors erased.
The increase was especially apparent in March, April and May, after the Michigan State Police released to districts the results of background checks of all public school employees.
“These were our highest three months ever,” said Shanon Akans, spokeswoman for the State Police, which removes records from public view.
First offenders get a break
Michigan is one of a dozen states that permit expungement of adult felony offenses. It’s one of four, along with New Jersey, Rhode Island and Ohio, that limit this privilege to first offenders, said Margaret Colgate Love, former U.S. Justice Department pardon attorney whose book, “Relief From the Collateral Consequences of a Criminal Conviction” will be released later this year.
“Ever since 9/11, there has been almost an obsession with knowing people’s backgrounds,” said Love, whose book offers a state-by-state guide to expungement policies. “As long as you have the invasive record checks, you can’t get jobs and you can’t get housing. There has to be a way to get out from under this. There has to be a time when you’ve paid your debt to society.”
To be eligible in Michigan, a person can have only one conviction and has to stay out of trouble for five years after sentencing or incarceration, whichever is later. The person cannot have been convicted of a serious sex crime, a traffic offense or a crime that carries a maximum sentence of life in prison.
There has been an effort in Lansing to liberalize the requirement, making the wait two years for misdemeanor convictions. The bill, sponsored by state Rep. Mary Waters, D-Detroit, has passed the House and is expected to be taken up soon in the Senate Judiciary Committee, Waters said.
Around Metro Detroit, requests to set aside convictions are steady.
“For the most part, these are people who have come to the point in their lives where they need this to be a nonpublic record,” said Anica Letica, assistant Oakland County prosecuting attorney in the appellate division. “They really have turned their lives around.”
Such was the case for Titiana Tillbrooke, who was arrested at age 19 for writing checks worth $1,200 to herself from her employer. Convicted of uttering and publishing, she served time in prison. Upon her release, she couldn’t find work.
“On the inside I was dying,” said Tillbrooke, now 35. “But I had to live for my husband and kids. I wished I could die. I wished I could get out of this. Why am I being held back?”
Once her conviction was expunged, Tillbrooke received many job offers. She used the same resume as before. But this time, employers called her back after the background check phase of an interview, she said.
“It was a change from night to day,” said Tillbrooke, now an accounting assistant. “It was awesome. People actually wanted me.”
Easy process rankles some
While there’s no guarantee a judge will set aside a conviction, the odds are very good and the process remarkably simple.
Using a little-publicized 1965 state law, ex-convicts can fill out a one-page application, pay $50 and get fingerprinted to verify they haven’t had further criminal convictions. They then go before a judge for a hearing.
Judges around the state granted nearly 90 percent of the set-aside applications this year, a fact that doesn’t sit well with everyone.
“It’s harder for a law-abiding citizen to get their name changed in this state,” said Allison Muhammed, who faced many roadblocks when she changed her name from Dennis.
People convicted of any crime should not be allowed to care for children or the elderly, said Muhammed, whose children are in day care in Detroit. But it’s upsetting that parents would never know with certainty whether a caretaker is felony-free, she said.
Timothy Romisch, a former teacher at Southfield Christian School, was one of 134 whose request was denied between January and June. He petitioned to have his 1986 conviction for attempting to accost a 14-year-old female Holland student for immoral purposes removed.
Now his teaching certificate is being revoked.
On the flip side, one Armada Schools cafeteria worker easily had her shoplifting conviction set aside, as it’s formally called.
“I paid $50 in court fees and I went into the courtroom,” said Diane Stringer, 47. “The judge said, ‘My, this has been on (your record) for a long, long time.’ And before I could say anything, she said, ‘We will expunge it from “ the record and you can leave now.’
Stringer shoplifted at Universal Mall in Warren when she was 17. It was a stupid mistake, she said, but she hasn’t been in trouble since.
Are checks undermined?
When deciding whether to set aside convictions, judges want to know if the individuals have bettered themselves, said Macomb Chief Circuit Judge Antonio Viviano. If they have, is it useful for an employer to know a person’s criminal history if, in a judge’s opinion, he is no longer a threat? Viviano asked.
The answer is yes, said Craig Lawrence of United Risk Partners, a Chicago area firm that does background checks for employers. “Just because a judge says yes, it’s OK to expunge records, that doesn’t mean that person won’t engage in the behavior in the future,” he said.
Expunged records undermine the purpose of background checks, Lawrence said.
“The whole point is that past conduct and behavior are predictable tools to determine what future behavior will be,” he said. “Human beings are creatures of habit.”
You can reach Marisa Schultz at (313) 222-2310 or firstname.lastname@example.org.
By Yvette Armendariz, The Arizona Republic.
The growing spotlight on the role of employers in illegal immigration has some businesses, from restaurants to construction companies and others, scrambling to protect themselves from federal penalties.
They are hiring employment-screening companies to audit employees’ Social Security numbers and doing background checks on new hires. In some cases, employers are turning over all hiring functions to outside firms and seeking help in complying with legal paperwork in hopes that they don’t find themselves at risk of fines or prosecution.
“We’ve found the focus is shifting from wage-and-hour compliance to immigration compliance,” said John Rico, director of human resources for Scottsdale-based National PEO, which provides services including employment screening, payroll and human-resource consulting.
Some background screeners and human-resource consultants report that business has jumped as much as 60 percent in the past three months. They don’t expect a slowdown anytime soon, given U.S. Immigration and Customs Enforcement’s recent announcement to crack down on employers who knowingly hire illegal immigrants. The agency seeks to fine and prosecute businesses that blatantly ignore hiring laws.
In Arizona, as many as 40 agents may be added to help with work-site enforcement, which has been scant in recent years. Just 30 employers statewide have been fined for hiring undocumented workers over the past 12 years.
Nationally, work-site-enforcement arrests declined from 2,849 in 1999 to 445 in 2003, according to an August report by the U.S. Government Accountability Office. Notices of intent to fine employers declined from 417 in 1999 to just three in 2004.
Several employment screeners said they expect to step up marketing of their services or add services to help business make a good-faith effort to avoid hiring undocumented workers.
“What is a good-faith effort is becoming more stringent and time-consuming for employers,” said Anne Caldwell, president of Phoenix-based Outsourcing Solutions, a human-resource strategy firm.
The general attitude had been that if an employer looked at a document and felt that it was legitimate, then that was good enough. But today, human-resource specialists are cautioning that more documentation will be required to show a good-faith effort.
Kevin Klimas, president of Clarifacts Inc., an employment-screening company in Phoenix, is closely watching the U.S. Department of Homeland Security and the Social Security Administration in anticipation of new guidelines for employment verification.
“Employers are starting to prepare for a change,” he said.
Just what that will entail is difficult to say, but he does note that he’s getting more questions about I-9 forms used to determine employment eligibility.
Business groups say most employers make a good-faith effort to comply. The problem is that few have the document experts and systems to check the validity of Social Security numbers.
“You can legally hire an illegal alien because you’ve done everything you are legally required to do because if you take it a step farther, then it’s racial” discrimination, said Mark Minter, executive director of the Arizona Builders’ Alliance, which represents contractors.
“Technology makes it easy to fool even law enforcement agents on what is a real document and a fake one,” he said.
Human-resource experts hope to help improve employers’ good-faith efforts. In many cases, employers simply don’t know or understand their legal obligations for verification and they are often sloppy about record keeping.
Reverse-osmosis company Aqua Chill hired National PEO a few years ago to oversee payroll and keep an eye on employment verification. It’s a good thing, said office manager Crystal Goodwin, because the company’s expertise isn’t in employment documentation. National PEO regularly audits the I-9 forms, which gives Goodwin confidence that the company’s employment-screening efforts would pass muster if they were to face a federal or state check.
State legislators are pushing for increased checks, too. They are working on legislation to penalize employers who knowingly hire undocumented workers.
The increased federal enforcement is unlikely to scare non-compliant companies, said Tom Fraker, executive director of the Arizona Small Business Association.
“The odds of getting caught are (still) remote,” he said. Many employers are desperate to fill labor-intensive jobs paying between $8 and $12 an hour, he said, and they won’t hesitate to hire with minimal checks so that work isn’t interrupted.
But he thinks that last week’s announcement may marginally help improve compliance.
“Even though the number of enforcers are few and far between, they’ll scare enough people to do what’s right,” he said.
By Kevin Klimas, bizAZ Magazine.
The crime of identity theft has reached epidemic proportions. According to the FBI, identity theft is the fastest growing white-collar crime in the United States and Arizona has the dubious honor of ranking first in the nation for the number of incidences per capita.
Identity theft occurs when personal information is obtained and then used for illegal purposes. While many of us think of identity theft as simply credit card fraud, it has in fact evolved beyond stealing credit card offers from the mailbox as criminals are becoming increasingly sophisticated in their methods for obtaining private information.
The Greatest Resource for Criminals
Companies, by the mere nature of being in business, have a virtual goldmine of personal data (i.e. address, social security number, date of birth, etc.) on their employees and identity theft perpetrators are now finding it easier than ever to tap into this resource. One of the more common sources of this personal data is an applicant’s background check report (legally known as a consumer report).
While there are industry best practices for how to properly handle personnel files, including acquiring, storing and destroying consumer reports and other sensitive information, it is important to first understand ways in which criminals get their hands on employee records.
Obtaining Information is Easier Than Ever
Today’s criminals have numerous ways of obtaining information from businesses or other institutions, including:
- Employees stealing records or information while they are on the job
- Bribing employees who have access to these records
- Conning information out of employees
- Hacking into electronic records
- Rummaging through a company’s garbage (a practice known as “dumpster diving.”)
- Theft by non-personnel while on your premises
With so many opportunities to steal this information, and so much at risk, businesses have an obligation to protect personal data from falling into the wrong hands.
What can employers do to protect their employees from becoming victims of identity theft?
Given the fact that other employees are often the source of an information breach, the first line of defense is to conduct background checks on all job applicants. Pre-employment screening including, but not limited to, criminal record searches and employment/reference verifications, can provide a clearer picture of your candidates and help protect against potential information leaks.
In addition to hiring candidates with integrity, employers also must put processes in place to control the flow of information. From the employment application to an employee’s departure, HR records, including consumer reports, must be closely guarded.
Following are important tips for Acquiring, Storing and Destroying this information.
When acquiring information on applicants from a third-party vendor, such as Clarifacts, the most important consideration is to protect your passwords. Keep in mind these simple guidelines:
- If using a secure Internet site or some type of software system, make sure your user names and passwords are embedded or “hidden.”
- Restrict access to user names and passwords to only a few key personnel and assign a unique password to each user.
- Have a designated fax machine where personal information will be sent back and forth with the information vendor and place the machine in a secure location rather than in a generally populated area of the office.
- Do not discuss user names or passwords by telephone with any unknown caller, even if he or she claims to be from a familiar company or vendor.
Restricting access is the most important consideration when storing employee information. Following are three simple steps employers can take to securely store data:
- Place any computers or servers that contain employee records in a secure location within the office. Physical access to these devices should be difficult for unauthorized personnel.
- Electronic files should be password protected and restricted to key staff members only.
- All hard copy information should be stored in a secure area within locked file cabinets. These cabinets should always be locked when not in use and after normal business hours.
Destruction of Information
The Federal Trade Commission (FTC) recently issued new regulations governing the proper disposal of consumer report information (which includes background check reports). The “Disposal Rule” under the Fair and Accurate Credit Transaction Act of 2003 (FACTA) went into effect June 1, 2005, and amends the Fair Credit Reporting Act (FCRA), which regulates the employment screening industry and the employers who use consumer report information.
The Disposal Rule requires businesses to adopt disposal practices that are reasonable and appropriate to prevent the unauthorized access to, or use of, information in a consumer report. The FTC standard for the proper disposal of information is flexible and allows organizations to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.
These “reasonable measures” could include, but are not limited to:
- Burning, pulverizing or shredding documents and destroying or erasing electronic files or media containing consumer report information so that the information cannot be read or reconstructed.
- Conducting due diligence when hiring a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule.
The Disposal Rule applies to every business, regardless of size or number of employees. When companies violate the Disposal Rule and compromise the personal information of employees, they are legally exposed. Depending on the type of action and whether the violation was willful or negligent, the FCRA provides for a range of civil liabilities and penalties, including actual damages, statutory damages up to $1,000 per violation, punitive damages and civil penalties up to $2,500 per violation – not to mention attorney’s fees and other costs.
If personal employee information has been compromised, the FTC recommends that you immediately notify law enforcement and the individuals that may be affected.
Help Stop Identity Theft in the Workplace
Being number one in the nation for identity theft is not a distinction any of us want for Arizona, and we certainly do not wish to see this crime proliferated in our own companies. As human resource professionals, business owners and managers, we must be diligent in recognizing identity theft opportunities within our own organizations, and in taking immediate steps to help secure employee information. By properly acquiring, storing and destroying sensitive data, businesses can make significant strides in preventing identity theft in the workplace.
Kevin Klimas is the founder and president of Clarifacts Inc, a privately held corporation focused exclusively on background screening services. Clarifacts provides nationwide service across a variety of industries including legal, healthcare, technology, manufacturing and non-profit just to name a few, with clients ranging from Fortune 500 companies to sole proprietorships. For more information visit www.clarifacts.com.