CUSTOMER RESOURCES

The North Carolina Administrative Office of the Courts (AOC) has proceeded with their plans announced last December to change the manner in which data is returned to third-party providers such as backgroundchecks.com.

While a court case is pending to return the results to their previous standard, an injunction has been denied, allowing North Carolina to provide the significantly limited data pending the lawsuit’s final judgment.

In 2006, Tammara Erica Reed was murdered while visiting one of the residents of a complex on Acovy Road. The murderer was Willie R. Gunn, who held four prior convictions that were marked on a criminal background check: two convictions for DUIs, one for shoplifting and one for sexual battery with solicitation for criminal sodomy with a minor. He had also committed murder previously, which was marked on file in the county clerk’s office.

Late last year, the jury voted in favor of Reed’s family, granting $1.35 million due to the fact that the housing complex authorities were aware of Gunn’s criminal history, and contrary to their own housing agreement, leased the property to Gunn while failing to give adequate security to residents.

During his housing interview and on his application, Gunn lied about his criminal past, though the housing directors found the truth with a background check. The former housing authority director, Faith Johnson, admitted she was aware of the convictions, including the murder, but granted Gunn housing regardless, though it was contrary to their own housing agreements.

Seeking damages for the physical and mental pain of the surviving family members, suffering, funeral expenses and the full value of her life, the family was originally awarded $1.5 million. After a five day trial and six hour deliberation, this price was reduced by 10 percent, as Gunn was held responsible for 10 percent of the fault. The resulting money will be paid to Reed’s surviving two sons, who are now six and seven years old.

Gunn was sentenced to life in prison without the possibility of parole. He was also sentenced for possession of a firearm, though he was a convicted felon. Whether the seller of the firearm utilized a background check or not is not clear. According to witnesses, Gunn and Reed had an argument the previous night of the shooting about a set of car keys. Utilizing background checks is an important step for housing providers, and it is important to think of ways tragedies like this can be avoided in the future.

Everyone is familiar with the basic format of a Social Security Number—3 digits, 2 digits, 4 digits.  Each of these sets of numbers have historically had significance more than simple randomization, though.  Since the inception of SSNs in 1936, the first three digits have indicated area, the second two have indicated group, and the final four have been random and are known as a serial number.  Beginning in 1972, when SSNs started to be issued by a central location (instead of the traditional field offices in each state), the three-digit area number indicated state as determined by the zip code provided on the application.

This means that, for as long as SSNs have been in existence, you could determine someone’s origin based on the first three numbers.  It’s as simple as 261 is a Floridian, 303 a Hoosier, 134 a native New Yorker, and 387 a Cheesehead.

This will not necessitate a direct reaction from you, however this will cause some issues when it comes to SSN validation.  Currently, the SSA issues a monthly table called the High Group List that shows the assigned states and issuance range for the first five digits of an SSN.  This table is used to determine the validity of an SSN but, once the patterns are gone, this table can no longer be updated.

So what does this mean to you?  For the most part, our process will not change—let’s face it, the majority of the people receiving these new format SSNs won’t be entering the workforce for another 15 years at best.  The real difference is in those who are being issued new SSNs for any reason other than birth, from recovering from a stolen identity to immigration. 

A few years ago, had you asked the average businessman his personal philosophy on background screening, his response would’ve likely been something to the effect of “better safe than sorry.”  Better to screen every applicant, to eliminate any applicant with a blemish on their record, than to face a due diligence lawsuit.

Now that opinion is changing.  By taking “better safe than sorry” truly to heart, businesses have started to run afoul of the Equal Employment Opportunity Commission (EEOC).  According to the EEOC, making employment decisions (specifically hiring or retention decisions) based on arrest and convictions or on credit reports has a disparate impact on minorities.

The EEOC has also determined that they would generally analyze the following items to determine if a hiring/retention decision was a business necessity or if it was discriminatory:

These two differing opinions have put many businesses between a rock and a hard place. Businesses can’t stop doing background checks completely without opening themselves to due diligence lawsuits but to continue in the vein of running all checks on everyone opens the business to discrimination lawsuits.

Ideally, in order to avoid the potential lawsuits, each company would do the following:

What it comes down to is that each job class has a different risk profile and because of that, not each job class can be treated the same. The possible risks need to be carefully weighed for each class and policies need to be updated to reflect these risks.

Across the board, the media focus on background screening is on pre-employment checks: whether and why you should do them, which types of checks you should do, and so on.  While these questions are undeniably important, they miss another whole aspect of screenings that can be equally important: post-employment background checks, most commonly seen in the form of ongoing criminal monitoring.

Ongoing criminal monitoring is exactly what it sounds like: a process by which you screen your current employees on an ongoing basis to confirm the employee’s continued eligibility for employment under your criminal background policy.  So, if you require an employee to have had no violent felony convictions in the previous seven years in order to begin work, you then check on a periodic or ongoing basis after the employee has begun work to verify that he still has no violent felony convictions.

While important in every company, those organizations that have a good retention rate particularly need ongoing criminal monitoring.  If your company only screens on a pre-employment basis and has a good retention rate, some of your employees may not have been screened for 10 years.

The possibilities of what could have happened in those 10 years are endless.  Maybe an employee in your accounting department has been convicted of credit fraud since he started there.  Maybe an employee who works with kids has been convicted of child molestation.  These types of employees can get out on bail before you find out they were arrested; if it is their first offense, they can receive probation, even for serious convictions, that allow them to continue working for you. Your best protection is to check your employees periodically to make sure that they measure up to the same standards they used to.

The catch is that this can’t just be done willy-nilly.  There are some additional considerations, among the most important of which is an item known as an evergreen authorization.  This is an authorization similar to one that the applicant would sign in order for any background check to occur however it is considered valid for more than one round of checks.  Another option would be to run annual background checks on your employees and have them sign a separate authorization each year.  In either case, you should check with your lawyer to make sure that your authorization is valid.