WORKPLACE LAW - Ripped Off Employer
Question:
I recently terminated an employee for stealing. It turns out that this individual had a criminal record for theft—something I learned after the fact, and something I obviously wish I’d known before I hired him. What could I have done to protect myself in this situation? Our application asks about criminal convictions, but this guy just lied when he filled out that section. Is there a way I could have found out about his criminal history on my own?
Answer:
The answer really depends on the type of business that you are engaged in. California law allows certain government and private organizations that qualify as “Applicant Agencies” to conduct criminal record background checks to help determine the suitability of a job applicant who will be working with children, the elderly and/or the disabled. An employer whose business meets this criteria may then apply to the California Department of Justice (DOJ) to become an Applicant Agency authorized to request criminal background information.
The DOJ, upon request, will provide Applicant Agencies with "state summary criminal history information,” which refers to the master record of information compiled by the California Attorney General pertaining to the identification and criminal history of any person, including name, date of birth, physical description, fingerprints, photographs, date of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person.
Applicant Agencies are required not to divulge or share criminal record history information, including responses that no criminal record history exists. Information must also be kept in a secure and confidential file, with access restricted only to the person who is responsible for confirming the fitness of job applicants (such as a Human Resources Director). The unauthorized release of background information can result in civil penalties, and agencies are therefore encouraged to destroy criminal history record information after its business need has been satisfied.
Employers who wish to become an Applicant Agency can download an application packet from the California Attorney General’s website at: http://ag.ca.gov/ag/index.htm. The packet includes the required “Criminal Record Information Authorization Application Package,” as well as related forms, instructions, and information about what data may be requested and by whom.
Background check information can also be obtained via a fingerprint check of criminal convictions, conducted through the Live Scan System. Live Scan allows for the electronic submission of applicant fingerprints, and then generates an automated background check and response. Through Live Scan technology, fingerprints are digitized and then transferred, along with personal descriptor information, to computers at the DOJ. This transfer of information takes place in a matter of seconds, instead of the days required to send hard copy fingerprint cards through the mail. The subject of the background check must visit an Applicant Live Scan satellite location where their fingerprint images and related data will be obtained and then transmitted to the DOJ.
Once the fingerprints and data are received by the DOJ they are electronically processed. Live Scan transmissions requiring analysis of a criminal record are sent to the Applicant Response Unit for analysis and dissemination. Live Scan submissions are typically responded to by e-mail, though U.S. mail may be used if e-mail is not available. The DOJ will also coordinate other electronic processes resulting from the automated submissions of fingerprints, including forwarding the fingerprints to the FBI (if required) and coordinating the collection of associated fees.
If an employer is interested in utilizing the Live Scan service, it must download and complete the appropriate forms in the available Live Scan Request packet, and submit them to the DOJ. Note that an employer must be authorized by the DOJ as an Applicant Agency before it can request Live Scan services.
In addition to summary criminal history information and Live Scan information, Applicant Agencies may also receive subsequent arrest notification information for individuals that have already been subjected to criminal background checks. This follow-up notification is not automatic, and must be requested in writing by submitting a “Contract for Subsequent Arrest Notification Service” form to the DOJ.- - - - - - - - - - - - - - - - - - - - - - - - - -
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