Screen Live-In Employees for Criminal Activity, Other Red Flags

Last month, we discussed renting units to police or security officers as a potential method of deterring crime at your site. Whether your site houses security officers or other types of live-in employees who enhance services provided to households, you need to be mindful of the safety of your household members. In most states and jurisdictions, owner responsibilities cover, at least to some degree, protection of their residents. This protection responsibility may impose a legal duty on the owner to take steps to protect residents from thieves, assailants, and criminal acts by other tenants. In increasing numbers, owners are being brought to court by residents who have been injured by criminals while on their site. Settlements from these cases often reach into the millions of dollars, especially when a similar assault or crime occurred on the same site in the past.

What if your live-in employee commits a crime, victimizing another resident? There are steps an owner can take that will not only lessen the chances of such a crime being committed on the site, but will also provide a benefit to the owner in the form of a reduced chance of being held liable for crime being committed against site residents.

Live-in employees often have regular contact with residents and routine access to other units. Their jobs are “safety-sensitive,” which means you should thoroughly screen anyone you are considering hiring in this capacity. And a criminal background check is a must for potential live-in employees. We’ll tell you how to check a person’s background. And we’ll describe some of the problems you may face if you don’t screen properly.

Types of Criminal Background Checks

There are several different kinds of criminal background checks available today, each with its strengths and weaknesses. There’s no single criminal database in this country that includes every criminal record, so there’s no one “perfect” background check.

One of the imperfections with criminal databases is that, often, an arrest will be recorded, but the courts or police do not update that arrest record with the ultimate result. Without that update, it isn’t known if the individual was convicted, had the charges dropped, or was found not guilty. These incomplete records are often called “open arrests.” Some types of background checks only access convictions. When that happens, the check misses any of those open arrests.

Currently, each state is the “gatekeeper” for background checks—it decides who can access background check information and for what purpose. Each state sets its own laws on background checks, so there’s no consistency from state to state on eligibility, process, cost, and turnaround time. In many states, the most thorough types of background checks may not be accessible at all to owners.

Federal Bureau of Investigation (FBI). The FBI maintains the most complete criminal database in the United States. It contains over 200 million arrest and conviction records concerning over 45 million individuals. All records are fingerprint-based. The database contains all federal crimes plus approximately 70-90 percent of each state’s criminal databases. Low-level misdemeanors, driving citations, and DUI’s make up the portion of state records that are generally not present in the FBI database.

State background checks. These checks include only the crimes committed within that state. These background checks are obtained through a state agency (the agency varies from state to state). Some states allow fingerprint-based checks, some allow only name-based checks, and some offer both types for different fees. Most state checks also include arrests, but a few include only convictions.

County/local checks. These checks include only the crimes committed within a local jurisdiction. Background checks of a county or local jurisdiction are obtained through the local police department.

Private vendor checks/databases. There are private vendors that advertise their ability to conduct criminal background checks. Private background checks are generally name-based. There are two basic methods that these private vendors use for providing background checks:

• Some vendors search county record repositories for the county of residence for the past three to five years (sometimes longer);
• Other vendors maintain databases of criminal records, often searchable online. Some of these vendors advertise their background checks as national in scope, but these databases are actually only really “multi-state.” These vendors buy their criminal data from the states. But many states have strong privacy laws, so they don’t sell any criminal data. Other states sell only a portion of their data, such as parole records, but not the full conviction or arrest files.

Driver’s license check. This would catch any tickets, citations, or convictions related to poor driving, including DUIs.

State sex offender registries. Most states have sex offender registries available online. But states don’t share the same criteria of what constitutes a “sex offender.”

U.S. Department of Justice, Dru Sjodin National Sex Offender Public Website. This website, launched in November 2005, provides the public access to each participating state sex offender website (www.nsopw.gov). In most cases, the database includes individuals who have been convicted of sexually violent offenses against adults and children and certain sexual contact and other crimes against victims who are minors.

Other Types of Background Checks

There are many different types of background checks an employer can pursue when performing pre-employment screening. In addition to criminal background checks, other types of common checks are:

• Bankruptcy records: Up to 10 years of past records are accessible.
• Court records.

• Credit checks: An employment background check often includes a copy of credit reports. The three major credit reporting agencies provide a modified version of the credit report called an “employment report,” which includes information about credit-payment history and other credit habits from which current or potential employers might draw conclusions. An employment report provides everything a standard credit report would provide. But it doesn’t include a credit score or date of birth. Nor does it place an “inquiry” on credit file that may be seen by a company looking to issue credit.

• Driving histories.
• Drug tests: Drug tests to check candidates for current substance abuse are legal.

• Military records: Under the federal Privacy Act, service records are confidential and can be released only under limited circumstances. Inquiries not authorized by the subject of the records must be made under the Freedom of Information Act. Even without the applicant’s consent, the military may release name, rank, salary, duty assignments, awards, and duty status.
• Property ownership records.
• State licensing records.
• Vehicle registration records.
• Workers’ compensation reports: In most states, when an employee’s claim goes through the state system or the Workers’ Compensation Appeals Board (WCAB), the case becomes public record. An employer may use this information only if an injury might interfere with one’s ability to perform required duties. Under the federal Americans with Disabilities Act, employers cannot use medical information or the fact an applicant filed a workers’ compensation claim to discriminate against applicants.

Screening Live-In Employees

Once you give a person a live-in job with safety-sensitive responsibilities, such as access to other residents’ units or the authority to affect their lives, you have put the site at higher risk because of that employee’s potential for illegal conduct. Therefore, you have a responsibility to do adequate screening of live-in employees. Here are three tips on how to do that.

Tip #1: Get applicant’s OK for background check. When performing criminal background checks on potential employees, you must comply with federal and state laws that require you to get the job applicant’s consent to release criminal information to you or to any agency or contractor conducting the screening for you.

Tip #2: Hire a service with employee screening experience. You may want to consider hiring a screening service to run criminal background checks. But make sure the service has experience screening employees, not only rental applicants.

When making the decision to hire a screening service, keep in mind the Fair Credit Reporting Act (FCRA) and its impact on screening. The FCRA sets national standards for employment screening. But the law applies only to background checks performed by an outside company, called a “consumer reporting agency” under the FCRA.

The law doesn’t apply in situations where the employer conducts background checks in-house. Your state may have stronger laws, such as California’s Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agency Act. In addition, many state labor codes and state fair employment guidelines limit the content of an employment background check.

Under the FCRA, a background check report is called a “consumer report.” This is the same “official” name given to a credit report, and the same limits on disclosure apply. The FCRA says the following cannot be reported:

• Bankruptcies after 10 years.
• Civil suits, civil judgments, and records of arrest, from date of entry, after seven years.
• Paid tax liens after seven years.
• Accounts placed for collection after seven years.
• Any other negative information (except criminal convictions) after seven years.

Tip #3: Give the screening service specific direction on where to search. One way to make sure you’re getting a thorough background check is to give the screening service specific areas you want it to explore. Here are some examples.

     > Details of past convictions. Direct the screening service to get details about any convictions that the background check turns up. For example, a misdemeanor conviction may have been more serious than it appears. Prosecutors routinely settle for a plea to a misdemeanor instead of pressing a felony charge, just to get the case off their desks. The employee screening service should know when to dig deeper to determine whether the conviction was the result of a plea bargain.

     > Driving record. Tell the screening service to look at an applicant’s driving record. This information offers insight into a person’s stability and responsibility. Numerous speeding tickets, accidents, or arrests for drunk driving should raise a warning flag.

     > Military history. Have the screening service check the applicant’s military history, if any. You may find that the applicant was court-martialed or given a dishonorable discharge for behavior that would amount to a crime if it had been committed by a civilian.

     > All appropriate counties. Direct the service to check criminal records in every county where the live-in job applicant ever lived, went to school, and worked. Expect the service to charge you for each county it searches for criminal records. Go back as many years as your state law allows.