Background checks spark worries
Published: Sunday, January 1, 2006 at 6:01 a.m.
Last Modified: Saturday, December 31, 2005 at 10:53 p.m.
Jessica Smith thought she was a shoo-in for a cashier's job at an Office Depot in Minnesota last summer. The store manager was encouraging, saying he just needed to run a criminal background check.
But a week later, Smith received a rejection letter that cited a lengthy rap sheet, including drug convictions in Washington.
"I have no record," Smith, 19, said as she flipped through court documents. "They all say felony and guilty. I've never even been to Washington."
Smith, who fought for six weeks to clear her name before eventually landing the job, was a casualty of one of the latest trends in business hiring. Companies increasingly rely on pre-employment background checks to ease security concerns and protect against costly lawsuits.
"It's very important and it's getting more important," said Robert Belair, a privacy attorney in Washington, D.C., and editor of the Privacy and American Business newsletter. "The incidence of negligent hiring lawsuits is way up."
But the burgeoning field lacks consistent standards, causing errors that can disqualify reputable job applicants, some industry experts and consumer advocates say. When criminals slip through with clean records, the consequences are more severe.
In December, FedEx Corp. was accused in a lawsuit of hiring a sex offender who was later charged with molesting an 8-year-old boy while at work in Fairfield.
FedEx spokeswoman Sandra Munoz said the company's background check did not reveal a criminal history. The company conducts criminal background checks on all job candidates, she said.
"That person is either lying or Federal Express is wildly incompetent in how they do the background checks," said Neal Rogan, the boy's attorney.
But people with knowledge of the industry were not surprised by the charges.
"There are no standards for what is a background check," said Tal Moise, chief executive of Verified Person, a New-York based company that performs background checks. "This is an industry that has delivered historically a very low quality product."
A national task force funded by the Justice Department this month recommended national standards for screening companies.
"The nation's security, as well as on-the-job efficiency, and certainly civil liberties and privacy interests, all demand the development of a blueprint," the task force concluded.
Background screeners say companies must conduct thorough searches to determine whether applicants have criminal records. That means searching multiple counties and checking for addresses not listed on job applications.
In the FedEx case, the employee worked in Connecticut but had a criminal record in Maine, according to the family's lawsuit. The FBI's criminal database is generally not public, except for law enforcement and some organizations. State depositories are often sealed or prohibitively slow, so screeners send runners from courthouse to courthouse.
"It's very easy to miss it, even if it's done properly," said Mary Poquette, co-chairwoman of the National Association of Professional Background Screeners. "There is no way to be absolutely sure the person they're hiring does not have a criminal record or a pending case because the records are scattered throughout 3,142 counties."
A survey this year by the Society for Human Resource Management found that 68 percent of personnel officers said they always run criminal checks on applicants. Thirteen percent say they sometimes do.
The Privacy Rights Clearinghouse, a non-profit consumer rights group that handled Smith's case, says it regularly receives inquiries from applicants related to background checks.
"It is a simmering issue and has grown in the last several years," said Tena Friery, research director for the group.
Smith's background check was conducted by ChoicePoint Inc., which earlier disclosed this year that thieves had accessed its massive database of consumer information.
In another ChoicePoint case, a lawsuit is pending in Connecticut in which Randy Cruz says he was fired from Boston Market after a background check falsely turned up two felony convictions that actually were misdemeanors.
ChoicePoint declined to comment on Cruz's case but said it resolved Smith's case in about two weeks.
Companies of all sizes, including Wal-Mart Stores Inc. and US Airways Group, have been sued for negligence for not performing pre-employment background checks.
Massachusetts-based Trusted Health Resources filed for bankruptcy after it was ordered to pay $26.5 million in damages 1998 to the family of a quadriplegic murdered by his health aide. The company did not run a check on the worker, who had six felony convictions.
In the Wal-Mart case, Tarsha Perry's 12-year-old daughter was in the cosmetic aisle when an employee of the nation's largest retailer repeatedly fondled her, according to a lawsuit filed last year in a South Carolina court. The employee, Curtis Scott, was a registered sex offender, according to the suit.
Despite earlier allegations of assaults in its stores, Wal-Mart policies did not include background checks for most employees, the lawsuit said. The retailer began running backgrounds on all applicants last spring and now checks to see if employees are on sex offender lists, Wal-Mart spokesman Marty Heires said.
Perry is lobbying for a law requiring companies to perform background checks.
"I was floored," Perry said. "I would never have dreamed Wal-Mart had issues like this."
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