Tuesday, February 26, 2008

Tyra Hearns explains why background Investigations needed for service industry



The decision to hire an employee is one of the most difficult, yet integral parts of running a successful business. Whether it is a Fortune 500 company, or the mom-and-pop store on the corner, no one can put a price tag on the value of a good employee. In addition to a well-planned interview process, many states permit employers to conduct pre-employment background investigations and drug screens, as a way to ensure that it hires the most qualified candidates. Generally, an offer of employment is made contingent upon the applicant passing both of these requirements, and for good reason.

Check, Please

An employer can find itself in legal hot water for failing to conduct background investigations and/or drug testing before hiring employees. “Negligent hiring” is the legal doctrine that holds an employer liable where the employer failed to conduct a thorough investigation of a new employee, resulting in damage or injury to a third party. The primary issue in such a case is whether the employer knew or should have known of the employee’s criminal propensities. The key is whether facts existed that the employer should have known about, which would have led to the denial of employment had the employer known them.

Most states require pre-employment background checks for teachers, childcare providers, elder care providers and law enforcement. New York requires fingerprinting for certain jobs, including school district employees, employees assisting in the installation, servicing or maintenance of fire alarms, employees of any national securities association, private investigators and security guards and employees of detective agencies; and applicants to childcare centers or school-age child-care providers.

Most states have enacted statutes that authorize pre-employment post-offer drug screening in conjunction with drug-free workplace programs. Many of these programs are required in order to receive significant workers’ compensation discounts. Generally, employers may decline to hire an applicant for a positive test or a refusal to provide a testing sample. Most states require that the applicant be given notice of the testing requirement at the time of making application, and results are to be kept confidential.

Connecticut, like many other states, has mandatory testing requirements for certain types of jobs, such as school bus drivers and commercial drivers as required by federal law. Maine only permits pre-hire drug testing for employers with 20 or more employees who have a state-certified Employee Assistance Program in place and a detailed written testing policy. Only Kentucky, Michigan, Nevada, New York, Pennsylvania, Washington and Wisconsin have no pre-employment drug testing laws in place for private employers.

Case by Case

One Ohio case outlines the importance of a thorough pre-employment investigation. The case concerns a furniture rental company that hired a truck driver without any background investigation. The driver was hired to deliver furniture. While making a delivery with another employee to a customer’s home, the driver went back inside the home purportedly to use the customer’s phone to get directions for their next delivery while his co-worker waited outside. The driver went into customer’s home and assaulted her. He later admitted to smoking crack cocaine the day before and the morning of the violent attack.

Had the employer conducted a proper background investigation, it would have discovered that the driver was fired from his prior employment after he refused a drug test and admitted to using drugs. The company also failed to interview his reference, the driver’s roommate, with whom he smoked crack the morning of the attack. Because the company did not have a procedure for investigating applicants, it also failed to note a job discrepancy in which the driver claimed he worked in Cleveland and Tulsa, Okla., during the same three-year period. Finally, the company did not drug test its drivers. The customer won $3.5 million dollars as a result of the company’s negligence.

Employers can prevail on negligent hiring claims if the victim is unable to prove that the employer failed to perform an adequate background check which would have put the employer on notice that the offending employee was predisposed to commit a violent act. In another case the employer provided documentation that the offending employee, a cable installer, had passed a pre-employment drug screen and had been honorably discharged from the military. His background check revealed experience in the industry, and reference checks with two prior employers showed no indication of potential risk to customers. Since the victim, who was allegedly raped and nearly killed by the cable installer, could not demonstrate that there was something in the installer’s background that would have alerted his employer to the possibility that he was predisposed to commit sexual assault, her claim for negligent hiring failed.

Taking Action

Getting back to basics, in addition to pre-employment background checks and drug screens, much can be revealed by a thorough review of an employment application followed up by pointed interview questions. Alabama, Arkansas, Arizona, Indiana, Mississippi, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia and Wyoming have no restrictions regarding inquiry of employees or applicants about arrests or convictions. Many states permit inquiry into arrests and convictions with the exception of sealed records.

However, the Equal Employment Opportunity Commission (EEOC) has set forth a Policy Statement with the requisite considerations for “business necessity” as a justification for use of a conviction record to deny employment. An employer must show that it considered three factors to determine whether its decision was justified by business necessity: (a) the nature and gravity of the offense or offenses, (b) the time that lapsed since the conviction/completion of sentence; and (c) the nature of the job held or sought. These factors can all be learned through the pre-hire screening process of the application, background check and interview.

Most employers use job applications that have language that provides for the disqualification of a candidate or termination of an employee if it is discovered at any time that he/she provided false information on the job application. For example, a fast-food chain hired a manager in a safety-sensitive position without conducting a background check. It was not until a subsequent harassment investigation that it was discovered that the manager had a felony burglary conviction that he failed to disclose on his employment application. While the employee was cleared of the harassment charge, he was later terminated for falsification of his employment application due to nondisclosure of the felony burglary conviction.

Conducting reference checks and contacting previous employers are also important tools for employers in the hiring process. While most employers provide minimal information for fear of defamation suits, such as dates of employment and salary, others are willing to provide a telling response to the question “Would you re-hire this applicant if given the chance?”

Employers can conduct their own background checks, but should be wary of Web sites and public records searches where information can be missing or inaccurately reported. More often, employers hire a third-party screening company to assist with background checks. These types of investigations are subject to the Fair Credit Reporting Act as an investigative consumer reports. An employee can dispute inaccuracies if turned down for employment due to something in the report from the third-party company.

Concerns such as workplace violence, drug use, dishonest applicants and theft are good reasons for conducting background checks. In order to avoid many of the pitfalls discussed regarding pre-hire investigations, employers should:

* Know their state and local laws regarding the use of criminal background checks and pre-employment drug screening;
* Consider using a third-party background investigation company for completion of background checks;
* Establish pre-employment post-offer drug screening if it suits the organization, to be administered in a consistent, confidential manner;
* Review their employment application forms, and make sure they provide for disqualification of candidates and termination of current employees for providing false information discovered at any time;
* Review all applications from candidates carefully, noting gaps in
* Conduct reference checks; and
* Conduct a structured interview process that includes inquiry into any red flags from the employment application.

These steps are critical in hiring quality employees, maintaining a safe work environment, and bringing qualified employees into your organization. In order to develop a pre-hire checklist for your company, check with your state laws regarding the types of background investigations, including criminal records checks and pre-employment drug screens that are permitted in your state.

Friday, February 22, 2008

Background Investigation delays stall green card holding individuals


By Emily Bazar, USA TODAY
Mohammad Barikbin came to the USA in 1988 and says he has spent every day since then fulfilling the American dream. The Iranian immigrant started a catering business in Philadelphia, then a taxi company and a taxi call center, all while investing in real estate. His 26-year-old son, Mehrdad, is a Marine. His 16-year-old son, Bijan, plays high school football. But there's a critical piece missing from Barikbin's American dream: He's not an American yet. Barikbin, 57, is a legal permanent resident, known as a "green card" holder. He is among nearly 68,000 legal immigrants whose citizenship applications have been stalled for six months or more by an FBI background investigation of their names. Some have been waiting for years with little or no information about the status of their applications or the reasons for the delay.
"I'm like a man with no country," he says. "I feel American, but the government is not identifying me that way." He says he has no idea what is delaying his name check but suspects it's because he's from Iran, which is accused of sponsoring terrorism. Barikbin, whose application has been pending for 3½ years, has joined a surge of immigrants turning to the courts to force U.S. Citizenship and Immigration Services (USCIS) to complete their background investigations and act on their applications. The background investigation involves running an applicant's name through terrorism and criminal watch lists. Tyra Hearns the President of background investigation firm Pebi Services made note of this particular dillema in her blog when she noted in her article "FBI skimps on background investigations on aliens" the continuing saga of long delays. "It really is a dual edged sword as the complete background investigation helps to insure safety and documentation but yet it delays the process." said Hearns
In 2005, about 270 lawsuits filed against USCIS were over delayed name checks, says USCIS spokesman Chris Bentley. Last year, there were more than 4,400 such suits. "People realized the only way they were going to get their names cleared was to file litigation," says Crystal Williams of the American Immigration Lawyers Association. "We've never seen the volume we're seeing now." Most of the suits are still pending, she says.

Delays 'unacceptable'

U.S. District Judge Michael Baylson consolidated Barikbin's lawsuit with those of five other citizenship applicants. On Feb. 8, he called the delays "unacceptable," ordered USCIS to draft regulations for its name-check process or stop using it, and gave the agency 30 days to tell the immigrants why their cases have been delayed. "Plaintiffs have experienced delays of many months to several years, incurred substantial expenses and lived with the resulting uncertainty in their personal and professional lives, and immeasurable impact on their families," Baylson wrote.

He said the name check delays pose "an increased risk to national security" because applicants remain in the country for months or years while awaiting the results. USCIS contracts with the FBI to do the name checks. There is a separate fingerprint search through criminal files. Bentley says 99% of the checks are done in less than six months. Eventually "a very high percentage" of the remaining 1% are cleared, he says. FBI spokesman Bill Carter says the backlog stems from late 2002, when USCIS sent the names of more than 2.7 million immigrants to the FBI for a second, more thorough check. "That was from an abundance of caution after 9/11," he says.

The first step is to run an applicant's name through computerized FBI databases, Carter says. If the name matches one in an FBI case file, an employee must investigate, which may involve searches of paper files "in any number of places," he says. "There are more than 265 FBI facilities that could house information. … We have to remember the national security of this country is at stake." Applicants with common names or names with various spellings, such as Mohammad or Sean, are more likely to generate hits. Rep. Zoe Lofgren, D-Calif., says she plans to question FBI officials about the delays at a hearing next month. She wants USCIS to use some of the money from a recent increase in application fees to hire more name checkers.

Some policy changes

USCIS officials say they're taking steps to speed the process, such as nearly quadrupling last year's $7.9 million budget. Carter says the FBI will use the money to automate paper files and add 111 workers to the 150 already checking names. For people seeking green cards, not citizenship, the agency has changed its policy. Those whose name checks have been pending for more than six months will be accepted as long as they meet all other requirements. If a name then came back linked to crime or terrorism, the Department of Homeland Security would revoke the green card and begin deportation proceedings. That doesn't help Barikbin. He fled Iran in 1982 to escape political turmoil and spent five years in Germany before entering the USA with his wife, Fery, and son Mehrdad.

They became legal permanent residents in 1999 and applied for citizenship in 2004. Mehrdad became a citizen a year later; Fery won her citizenship last year after the couple filed suit. Because he's not a citizen, Barikbin doesn't have a passport. He could request permission to travel overseas and try to get a visa from another country, but he hasn't done that because friends with green cards have tried and failed, he says. He hasn't seen most of his relatives in 26 years, including his mother, who died in December.

Although he says he's been treated "unfairly," Barikbin eagerly awaits the benefits of citizenship, such as voting.

"Whatever I can do for this country," he says, "I am ready to do it."

Wednesday, February 20, 2008

Portable security clearances may be on the way


Every year, thousands of employees move from one federal agency to another. But when that move involves the transfer of a security clearance, the system breaks down.
Hiring agencies often do not recognize the security clearances of other agencies. And that causes long delays — and sometimes considerable expense — in getting new employees into their new jobs. Agencies often request new background investigations on employees even though they’ve been cleared in previous investigations.
Now the Bush administration is trying to fix that. The president directed the heads of the Office of Personnel Management, the Office of Management and Budget, the intelligence community, and the White House’s national security adviser to come up with a plan by April 30.
OMB requires that agencies accept each other’s security clearances, but that doesn’t happen. Last year, agencies asked OPM to conduct 25,000 new background investigations on people who already had security clearances. OPM denied those.
When hiring a new employee who comes with a clearance from another agency, the hiring agency typically reviews that employee’s background file and other materials to decide what level clearance to give. That process is called adjudication.
And because agencies are readjudicating new employees who already have clearances from other agencies, there’s a big backlog. The problem is especially big at the Defense, Energy and Justice departments, which have accumulated a combined adjudication backlog of more than 80,000 cases.
The problem is particularly bad at the still-fractured Homeland Security Department, said Ben Romero, chairman of the Information Technology Association of America’s intelligence subcommittee.
“They have too many different departments that don’t even recognize their own reciprocity, much less reciprocity from those in industry who are coming in,” Romero said. “Whether we [contractor employees] hold Justice [Department] clearances, or DoD clearances, they still have to vet, yet again, that we are trustworthy enough.”
Kathy Dillaman, associate director for OPM’s Federal Investigative Services Division, says there is some progress in fixing the problem. OPM in 2005 took over Defense’s security clearance investigations, and that has produced more uniformity and willingness among agencies to accept existing clearances.
“What fed into that [lack of trust] was years of different standards, where DoD would do an investigation one way and may or may not include some types of coverage, and OPM would do it another way,” Dillaman said at a hearing last week. “It’s something that’s being fixed with time.”
OPM has taken steps to increase the transparency of the process and build trust among agencies, Dillaman said. For example, its Clearance Verification System database is tied to Defense records and can be accessed by security clearance officials governmentwide. So officials from other agencies can use the database to review what steps were taken by an agency when it gave an employee a security clearance.
Romero of the ITAA said he is seeing signs of improving reciprocity in the intelligence community. The 16 different agencies that make up the community are increasingly accepting one another’s badges and clearances, he said.
A sluggish clearance process has hampered the government for years. Increased staff and improved automation have helped eliminate the backlog of initial security clearance investigations, and shortened the time it takes to do an initial investigation, Dillaman said. Initial investigations now take an average of 67 days to complete, down from 121 days in fiscal 2006, she said.

Tuesday, February 12, 2008

FBI skimps on background investigations on aliens


Approximately 47,000 visa applicants will be given green cards before the FBI completes their background investigation, the federal government said on Monday. The perspective of tens of thousands of immigrants being given permanent residence without FBI’s green light raised a series of remarks on how this could compromise the national security. U.S. Citizenship and Immigration Office officials gave assurances however that they wouldn’t have forwarded the proposal in the first place if the national security was to be compromised.

The government’s plan aims at reducing the number of green card applications, currently 320,000, by prioritizing the cases that have been pending for more than six months, despite the fact that the FBI’s background investigation has not been completed. The Bush administration has often been questioned about the enormous amount of time people need to wait before being given permanent residence, all because the FBI delays in completing its background investigation.

According to Chris Bentley, spokesman for the U.S. Citizenship and Immigration Service, the 47,000 applicants have already passed the fingerprint check, and it is not normal for the them to wait up to two years for the background investigations to end. “This maintains national security,” Bentley said. “Only after we received assurances that this would not compromise national security or the integrity of the immigration system did we go forward. It doesn’t compromise the system, but at the same time it allows us to get benefits to people who deserve them in a much quicker time frame.”

The people who will be given green cards have no criminal records, but from various reasons appear in the FBI’s database, often after being mentioned in criminal investigations, but with no involvement in any crime. This is why the FBI can’t go faster when checking somebody’s background, but at the same time, immigration advocates say there is no reason for people to wait for several years before their case is solved. Tyra Hearns of background investigation firm Pebi Services.com, considers this to be flawed logic. "Regardless of how bad the back log is, a complete background investigation is needed. Would you tip a food server prior to your meal? Prepay for a Taxi ride? It just stands to reason that it would be better to delay benefits than seek restitution trying to get them back or stop them. The FBI can't skimp on these things."

Sunday, February 3, 2008

Background Investigation never done on DCF executive arrested on child pornography charges


A Department of Children and Families spokesman was arrested on child pornography charges Friday for allegedly offering at least two teenagers money in exchange for photographing them in sexual acts.

Al Zimmerman, 40, was charged with eight felony counts of using a child in a sexual performance, but Tampa police said Saturday more charges could be filed in the next week. He was released from the Hillsborough County jail on Saturday afternoon after posting $120,000 bond.

At least one of the teenagers involved had ties to the child protection agency, DCF Secretary Bob Butterworth said. Officials said they could not release any information on the link, citing an ongoing investigation.

The incidences occurred as recently as Friday and date to December 2005, according to an arrest report.

The teens were 16 and 17 at the time of at least one of the incidences, and at least one is from Orange County, the report said.

Zimmerman, who worked at the department's Tallahassee headquarters, was put on paid administrative leave Thursday afternoon when Butterworth learned of the law enforcement investigation. He was immediately fired Friday after his arrest.

"Here is an agency that is really trying hard to regain a very good image. Unfortunately, this particular activity hurts the image,'' Butterworth said. ''All of us feel like he absolutely betrayed us." Tyra Hearns the President of background investigation firm Pebi Services added "My views are completely in line with Mr. Butterworth's it is a betrayal to everyone."

Zimmerman, who lives in Tallahassee, could not be reached for comment.

He was arrested Friday afternoon in Lakeland, where his parents live. A call to their residence was not returned.

Zimmerman was hired by DCF in March 2005 to be a public information officer for the department's field office in Wildwood. He was transferred in August 2006 to Tallahassee, where he was responsible for answering questions from the media, drafting press releases and putting together a newsletter, said Erin Geraghty, DCF communications director and Zimmerman's former boss. He had no direct access to children, Geraghty said.

As spokesman, Zimmerman earned $75,686 a year.

DCF chief Butterworth said the agency did not conduct an extensive background investigation on Zimmerman at the time he was hired, and he was not fingerprinted. "That is a galring and obviously huge mistake on DCF's part,"said Hearns

Although it was not the department's policy to do criminal background investigations for Zimmerman's job classification, it was customary at the time, Butterworth said.

Had they done the background investigation, DCF officials would have found three items that may have put up red flags, Butterworth said.

State records show that Zimmerman was arrested in 2003 on misdemeanor charges for writing a worthless check. The charges were eventually dropped. "As this saga unfolds it is appalling that DCf allowed this to happen," said Tyra Hearns

He was arrested for driving under the influence about 15 years ago in Georgia, and he may have an outstanding warrant for grand theft in Texas, Butterworth said. The theft was for less than $500.

"If we would have had these three, he may or may not have been hired," Butterworth said. But Butterworth said there was "no indicator that he would have been involved in what he is involved in now."

DCF officials plan to review the agency's background investigation policy. The department began enforcing a more extensive policy in August 2006, Butterworth said.

"I want to make sure that it's being done and it's being done systemwide," he said. "I want to go back and make sure that all of our employees have undergone the appropriate background investigation and screening."

Before being hired by the agency, Zimmerman worked for Bay News 9, a 24-hour local cable news station in the Tampa Bay area. He also has worked for television stations in Georgia and Texas and is a graduate of Syracuse University.

Gov. Charlie Crist was among five references listed on Zimmerman's résumé when he applied for the DCF job. Crist, who was the state's attorney general at the time, was not one of the references DCF officials called.

A spokeswoman for the governor said Crist knew Zimmerman through his reporting job in Tampa Bay but does not remember being asked to be one of his references.

If convicted, Zimmerman faces up to 120 years in prison.

Agents with the Florida Department of Law Enforcement (FDLE) and the attorney general's office continue to look for other possible victims. DCF is cooperating with the investigation.

"Every photograph, every image, every lasting impression of a child's sexual abuse perpetuates this horrible crime over and over again," Attorney General Bill McCollum said in a statement. "CyberCrime knows no boundaries, targets all demographics, and should never fail to galvanize us into action to protect our children from these predators."

Zimmerman's arrest is another black eye for DCF, which has faced criticism since 2002, when it was discovered that a Miami investigator had lied about visiting the foster parents of 4-year-old Rilya Wilson. The girl had been missing for a year and has never been found.

More recently, former Secretary Lucy Hadi resigned after being found in contempt of court for not moving inmates to state hospitals if they were incompetent to stand trial. Before that, Jerry Regier left the position after an investigation showed he accepted favors from contractors. Regier had replaced Kathleen Kearney, who resigned after Wilson disappeared.

Last year, a child protection task force criticized DCF officials because a 2-year-old foster girl was missing for four months before DCF notified police to begin searching for her.