Employment Investigations

Employment Investigations

Bearden Investigative Agency discusses employment investigation cases

Disclaimer: The questions and answers deal with general investigative questions and how they may apply to mock situations. Although these answers discuss common issues, they may or may not be applicable to your case’s particular set of facts. The answers should not be taken as, nor are they offered as legal advice. Careful consultation with an attorney and/or an investigator is highly recommended prior to acting on any of the below. The questions and answers are protected by copyright and reproduction is strictly prohibited without permission from Bearden Investigative Agency, Inc.

Q:What is an employment investigation?

Employment investigations are those investigations which center around the activities in an employer / employee relationship. They can include a number of inquiries but are generally separated by those investigations which occur prior to employment (“pre-employment investigations”) and those that occur after employment (“workplace investigations”). We’ll discuss pre-employment investigations in the first several questions and workplace investigations in the remaining questions.

Q:What is a pre-employment investigation?

A pre-employment investigation is any investigation where the results of that investigation will be used in making an employment or promotion decision. The preceding distinction is critical because of the impact of various federal and state laws which regulate conducting these types of employment investigations.

Q:Why are pre-employment investigations treated, investigated and managed differently?

For the most part, pre-employment investigations are more heavily regulated than post-employment investigations. Both the Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) require employers to comply and, if not, enforce violations of federal law in the hiring of employees when relying on a background check report. Conducting investigations, regardless of their depth, when hiring, retaining, or promoting a potential employee are highly regulated. If haphazardly done, they can create liability to the employer.

Generally, pre-employment investigations cannot take a free-for-all methodology. They must bear some rational basis, follow federal procedural law and be applied evenly to all applicants.  Therefore, these investigations tend to be very tailored to a specific cause, employment decisions.

Q:Do I have to obtain a release by that employee? If so, why?

Employers who conduct these investigations are required to follow the procedures of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681. These procedures include providing a written notice to the applicant that you might use the information in a background check to make a decision on employment, get the applicant’s written permission to conduct the check and you must also advise the applicant of their right to a description of the nature and scope of the investigation. These requirements must be met. We can assist you in drafting and using acceptable forms for these documents and creating a process which ensures your compliance with federal law.

Q:How does Title VII of the Civil Rights Act impact consideration of arrest and conviction records in employment decisions?

In 2007, the EEOC issued enforcement guidelines on consideration of arrest and conviction guidelines. In essence, the EEOC indicated that Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin. In addition, it suggested that the application of certain criminal record exclusions for arrests and convictions might operate disproportionately against a particular race or national origin. It is critical that discussion of what exclusions should be considered and why they should be considered occur at the beginning of conducting investigations. Additionally, it is critical to treat a job applicant in the same manner as other applicants.

Q:Can I consider an arrest in a job decision?

Not normally. The EEOC in 1990 issued a policy statement for arrests which stated that an arrest does not establish that criminal conduct has occurred. It is simply an arrest. The commission went further to point out that convictions are generally considered reliable evidence that the underlying conduct actually occurred. Therefore, convictions should be the guideline.

It is also important to establish a level of criminal offense that would exclude an individual from employment. A single conviction for speeding may not justify excluding an individual from employment. However, a higher level of criminal offense for drugs, assault or sex crimes may. A policy should be created in making employment decisions of who will be accepted and who will not. A broad policy or practice that excludes anyone with a criminal record may not be sufficient and may violate Title VII of the Civil Rights Act. Both our investigators and in-house attorneys can assist you by drafting and implementing this policy and decision process.

However, you should be aware that if an arrest disqualifies someone from employment in a particular regulated position, then an employer may not hire. Generally, those instances are in positions that are regulated by a state licensing agency that forbid the person to have a pending arrest to work in a certain profession. In short, relying on an arrest in an employment decision may be possible. But, that decision should be carefully made.  

Q:I just want to know criminal information. Can’t we just run a national database? Shouldn’t that be easy?

Past criminal convictions are many times the most important decision in employment context. As we have discussed, determining the level of criminal convictions is a critical part of the employment decision process. However, criminal records are not all kept in a centralized location. For the most part, the most accurate location for criminal filings are the court clerks located for each court. Given that Texas has 254 counties and Louisiana has 64 parishes, that is a lot of courts and clerks to talk to and check. Even in the DFW metro area, we operate in a very parochial manner with most people living amongst 4 – 8 urban counties, a couple hundred independent cities and several hundred law enforcement agencies. Many of these agencies do not talk to each other at all.

In some states, including Texas, the state police agency will provide a state criminal records check. In other states, like Louisiana, a release is required to access this information or a general repository does not exist at all. In Texas, the Department of Public Safety maintains such a database to subscribers. However, the Criminal Justice Policy Council has estimated that only 60% of the criminal dispositions are actually in the DPS system. Many times, the court or arresting agency has failed to report criminal information to the state. Even if they were to start, a number of past felons and other criminal convictions will never see entry into the database.

Commercial providers have attempted to purchase records on an ad hoc basis from a variety of court and other repositories. Although these are great databases to consult, they many times don’t differentiate between filings, arrests, and convictions. They many times are not updated to include expunged criminal matters. Both commercial databases and DPS are great starting places. But, when looking for criminal convictions with which to make an employment decision a check of clerk of each court is no substitute.

Q:Why check the DPS system and other state criminal repositories at all?

In many states, a check of the DPS system provides for a limitation of liability in certain professions. Additionally, they may be a place to see where potential records are located and allow follow up investigation at the clerk’s office in that particular county. So, while it may not necessarily be the final determination, it is a great starting place and may help you limit liability if you are in a specified line of business.

Q:Do you have to check every court? I don’t want to check minor courts or civil courts.

In many urban counties, the District and County Clerks share criminal information systems. This makes the process substantially easier.  In other counties, they may not. It is critical to have some knowledge of local courts, police agencies and administrative procedures. At Bearden Investigative Agency, Inc., we possess that local knowledge and can assist you in being cost effective but through.

Determining the level of courts is part of determining the scope of your investigation. However, minor courts, such as municipal courts in large urban areas, can house information on a number of past “moral” type crimes. These courts either currently or in the past were places are where drug possession, prostitution and minor assault crimes were filed. These courts are smaller and many times are passed over by other researchers.

As for civil courts, civil cases are great repositories for information. They can range from divorces and collection suits to more serious matters such as protective orders, sexual accusations, and employment litigation. In terms of information, civil suits dwarf criminal matters. These may be very valuable under the right circumstances.

Q:What about civil, bankruptcy and credit information?

For the most part, this information can be considered as an indication of a candidate’s reliability and responsibility. Searching this material out can be of great informational importance. Many times, civil litigation files contain a plethora of information compared to even hotly contested criminal cases. Generally, criminal matters are dwarfed in filings, pleadings, motions and discovery that their civil matter counterparts contain. If your applicant is a party in a civil matter can be of great use in various types of employment decisions. For instance, if an applicant driver has multiple auto accident lawsuits, that information may prohibit employment.

Q:What about Credit Checks?

As for credit checks, the employer needs to articulate a clear rational basis for a credit checks. In addition, credit checks should be only part of the employment investigation. Meaning, that an employer should do more than a solo credit check. Employers should also realize that credit checks are riddled with error. Many times, the amounts owed, collections accounts and header information can be stale or inaccurate. Using a reliable investigative agency to review and interpret these findings is critical. In 2010, the Society for Human Resource Management (“SHRM”) conducted a survey on the use of credit reports for employment screening. Overall, the survey found that almost 60% of employers were accessing a credit check on at least some of their applicants. We find that many of our clients that are hiring applicants that will deal in accounting, finance, fiduciary or other money handling areas are those clients that usually access such information.

Q:What about medical and genetic Information?