Why Didn’t Employment Screen Reveal Aurora Shooter’s Assault Conviction?

 

Roy Maurer By Roy Maurer March 14, 2019
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​Many questions surfaced after an employee shot and killed five people in his Aurora, Ill., workplace as he was being fired. One concerns a common hiring practice: Why didn't the shooter's past felony conviction come to light during his pre-employment background screen?

Gary Martin fatally shot five of his co-workers and wounded five police officers during his termination meeting Feb. 15 at the Henry Pratt Co., a manufacturing facility. He was convicted in Mississippi in 1995 of aggravated assault for stabbing and beating his girlfriend the year before. But the felony conviction didn't come up during a background check when Martin was hired in 2004, according to Scott Hall, president and CEO of Mueller Water Products Inc, which owns Henry Pratt. That might be perplexing—or even shocking to some—but not to background screening experts.

"There's no guarantee because [background screening] is not a perfect science, and you're dealing with an imperfect system," said Jason Morris, an employment-screening consultant and industry expert with Morris Group Consulting, based in Cleveland.

"HR needs to understand that although criminal background checks overall have a very high rate of accuracy, there can be times when records aren't flagged because of the complexity of the search or for other reasons," said Les Rosen, an attorney, industry thought leader and the CEO of Employment Screening Resources, a background screening firm based in San Francisco. 

He added that there is no single records repository containing the updated records from the over 3,000 county courthouses across the United States. "No matter how much money you spend or whatever you do, there will be occasions on the margins when things fall through the cracks," he said, "older cases, or [ones] in jurisdictions that are farther away from where the search is originated."

Mueller Water Products did not return requests for comment.

[SHRM members-only platform: SHRM Connect]      

Deep vs. Wide

There are several impediments to getting a complete background check—including the scope of the screen, disorganized or incomplete records, the reliability of the screener, and state laws.

When beginning a background screen, the employer first gives instructions for the screening firm on what tools to use, how deep to dig and how far back to search.

Rosen explained that the most minimal check would be a one-county check made in the new hire's county of residence. "That would be showing the least due diligence," he said.

On the other hand, accessing one of several private multistate, multijurisdictional databases containing hundreds of millions of records presents wide—but not deep—search parameters. Experts recommend that screening firms only use these databases as a supplement to a more-targeted courthouse check. The databases "are basically a large data dump, with lots of records and must be combed through by experts who know how to use it," Rosen said. "If a record is found, it must be pulled to make sure it's complete, accurate, up-to-date and legal to report."

Checking all the relevant courthouses in the jurisdictions in which the new hire ever lived, worked or went to school would be considered a deep search. But that may take a lot of time and a record could still go undetected. For example, "if Martin had never lived, worked or went to school in Mississippi, and was just arrested and convicted in that state, there's nothing pointing a screening firm to check that jurisdiction out," Morris said.

Another limiting factor is how far back to look. "The Fair Credit Reporting Act (FCRA) prescribes you can only go back seven years for an arrest, but for convictions you can go back a lifetime," Morris explained. "But many companies have adopted a de facto standard for only going back seven years across the board, so in [the Aurora case], they would've missed it."

Employers, especially multistate employers, have taken up the seven-year standard for consistency because several states restrict reporting information from cases older than seven years. "If a case was last disposed eight years ago in California, for example, you can't touch it," Morris said.

Rosen recommended employers order a broad search going back as far as possible based on where a person lived, worked or studied in the past seven years, and supplement it with a multistate, multijurisdictional database search to increase the chances of finding older, out-of-state convictions.

Continuous evaluation, or ongoing screening of employees, can be informative. Martin was arrested six times after he was hired—for domestic violence, disorderly conduct and criminal damage to property.

Systemic Flaws

The records systems themselves are "far from perfect" and disorganized overall, with some jurisdictions better than others, Rosen said. "They're created and maintained by the criminal justice system for criminal justice purposes, not primarily for employment screening."

He added that some states have statewide repositories, while others don't. Not all jurisdictions have digitized their records, and some are notoriously slow to update their cases. Errors in the records like misspelled names can result in clearing people with convictions and flagging people without criminal records.

It's also important to know that background checks can only legally report what's in the public record. Cases that have been expunged or sealed for any reason won't be reported. Whether records can be expunged or sealed is dependent on the rehabilitation laws in each state.

"Each state is an adventure, with its own set of rules" and its own process for archiving records, Rosen said.

Finally, the FBI database, which many states use to screen child care workers, health care professionals, and others in regulated occupations, has its own host of problems, allegedly containing wrong, misleading or incomplete data. And it's off-limits to most employment screens, unless there's a state mandate for that access, Morris said.

You Get What You Pay For

A typical problem with employment screening is relying too much on commercial databases, which can contain incomplete information.

"Don't skimp on the search," Rosen said. "Background screens are not that expensive, but there's a lot of [employers] looking for the cheapest option." He advised HR to select a screening firm that is "reputable, accredited by NAPBS, not taking shortcuts, using good researchers and not only relying on databases."

Fair Chance Hiring

U.S. Equal Employment Opportunity Commission (EEOC) guidelines and fair chance hiring trends support giving ex-offenders chances at employment once they've served their sentences.

"Under the EEOC guidelines, depending on the nature of the job, the age of the offense and the seriousness of the crime, [the employer must determine] is the record relevant [to the job]?" Rosen asked. "Employers won't be able to get it right every time, but the point is to show due diligence. At least the employer can show they were aware of the record and made a risk management decision based on the EEOC guidelines that the crime is not related to the job and does not present risk."

The Society for Human Resource Management has partnered with many companies and other associations to launch the Getting Talent Back to Work initiative, pledge and toolkit, aimed at giving applicants with criminal histories a second chance at employment.

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