When old convictions won't die: A more clear picture on background checks

When Marie, a computer programmer in the Los Angeles area, pleaded "no contest" to a misdemeanor shoplifting charge more than a year ago, she did so only because a judge assured her the case would be dismissed after 12 months' probation.

But now that the year has passed, Marie said she was surprised to find out that while the case has been dismissed, everything else about it remains in the public record. Using the court's website, she said, anyone can find out about her arrest and the no-contest plea preceding the dismissal -- including employers.

"If a case is dismissed, an employer is not supposed to ask you, but they can find it out," said Marie, who declined to use her real name out of concern it might hurt her job prospects. Currently unemployed, she has unsuccessfully applied for several positions in recent months. She blames her difficulties largely on the negative impression employers get when they see the shoplifting arrest record.

As more employers institute mandatory background checks, job seekers are finding that minor transgressions from years past are coming back to haunt them. In many cases, arrests and convictions that job seekers thought had been expunged from their criminal records are showing up on pre-employment screenings.

Increasingly, prospective employees are also seeing charges for minor but embarrassing crimes, like public urination or drunk and disorderly conduct, crop up on records searches culled from databases of courts and law enforcement agencies across the nation.

Such revelations come as employers lean more heavily on background screenings in an effort to avoid lawsuits for negligent hiring, which arise when a company fails to detect black marks in a prospective employee's background.

"Years ago, you could lie on a job application and nobody would really do their due diligence and check it out. Those days are long gone," said Michael Bialys, a case manager for Criminal Defense Associates , which sells services to help people get prior convictions expunged from their criminal records. Business, Bialys said, is growing briskly, thanks largely to clients' concerns that they won't pass a background screening.

According to privacy advocates and law firms representing job seekers denied positions due to negative information found in background checks, the growing reliance on screenings is making it even harder for people with blemishes on their criminal records to find employment.

"In previous years, identity theft was the No. 1 topic people called us about. Now employee background checks probably equal identify theft in the number of calls it generates," said Beth Givens, executive director of the Privacy Rights Clearinghouse . "They're concerned that, say, a 15-year-old DUI will turn up."

Wirta claims the database has improved his firm's ability to detect criminal information in background checks -- by up to 70 percent for some employers -- largely because it tracks records from previous addresses.

" Criminals tend to be a fairly mobile group," he said. "If someone is convicted of a felony in a particular state or county, often they want to get away from that." But now that more employers are willing to spring for $20 or so for a background check, escaping one's past is considerably more difficult.

According to a study published in January by the Society for Human Resource Management , 80 percent of employers surveyed last year said they carry out criminal background checks for prospective employees. In 1996, just 51 percent of employers said they performed such screenings.

Employers' fears of faulty hires are fueled by a handful of high-profile cases in which companies paid dearly for poor hiring decisions.

One case settled earlier this year was brought by the family of a Florida woman who was raped and murdered in 2001 by an air-conditioning repairman under contract with the Burdines department store chain. The family settled a lawsuit with the department store and its former subcontractor for $9 million. Neither Burdines nor the former subcontractor had run a background check on the repairman, a twice-convicted rapist.

A similar case centered on a carpet cleaner who stabbed and killed a woman in her Oakland, California, home in 1998. The woman's husband successfully sued the carpet-cleaning company, claiming that a background check would have revealed that its employee was on parole after serving a prison sentence for bank robbery.

According to Wirta, national criminal records searches have enabled employers more recently to avoid some potentially dangerous hires, including one search his firm conducted not long ago revealing that a prospective employee at a Fortune 500 company had previously been convicted of murder.

Prospective employees, however, often believe the screenings don't provide an accurate picture. Privacy Rights Clearinghouse's Givens said she's seeing a rise in calls from job seekers who can't figure out why charges they thought had been expunged from their records are still showing up on background checks.

The organization also warns prospective employees that screening companies often record felony convictions when the job seeker truly believes the crime was reduced to a misdemeanor. In many cases, the job seekers weren't aware that courts needed additional documents to reduce the charge. Other times, the conviction actually was reduced, but a privately run database hasn't been updated to include the change.

In the case of expunging -- a practice adopted in many states that allows a conviction to be dropped from an individual's record after a sentence is served -- there may be less recourse, according to Criminal Defense Associates' Bialys. He said although states that permit expunging will erase a person's conviction or term it a "case dismissed," the record of the actual arrest will still show up. Thus, employers might not know that a prospective hire was convicted for breaking and entering, but they will know that the person was arrested for it.

For those who do lose out on a job due to negative data found in a background check, there is limited legal recourse. Under the U.S. Fair Credit Reporting Act, if a company hires an outside screening company, it must also give job applicants notice that a check will be performed and inform them if a decision not to hire has been made based on the outcome. Under the law, the prospective applicant has the right to dispute the accuracy or completeness of any of the information in the report with the screening company.

According to Joseph Kinney, a security consultant who has appeared as an expert witness in negligent hiring cases, the likelihood that a background check contains errors is quite high. There is also much that screening services miss, since many counties don't contribute data.

The other problem with background checks, Kinney said, is that criminals tend to lie. While ordinary citizens might expect to pass a background test even with a minor black mark on their records, hardened criminals are likely to provide false names, birth dates and social-security numbers.

" The system we have basically gives employers the impression that: 'Gosh, I pay $20 or so to some company, get access to their database, and then, voila? the person I've hired is an angel with no problems,'" he said. "What happened to the days when people used to call references?"

For her part, Marie said she is appealing the "no contest" plea to shoplifting. She said she was innocent of the crime, but unable to present her case the first time around because her chief witness was in the hospital.

At the very least, she said, she would like to ensure that the record does not show up on the court's website.

"If they case is dismissed, they should remove it," she said. "Let us go on with our life. It's a minor incident. Why punish us again?"