The Carolina Investigator Blog

Data Brokers Settle with the FTC
Does anyone care about privacy and accuracy in background screening. Hopefully these settlements will impact the background screening industry to provide quality services Checkmate.com and a background screening company settled allegations by the FTC that the companies failed to provide accurate backgrounds and notifications to employers.
Instant Checkmate violated the FCRA by failing to maintain reasonable procedures to ensure that those using its reports had permissible purposes for accessing [caption id="" align="alignright" width="75"]Seal of the United States Federal Trade Commis... Seal of the United States Federal Trade Commission. (Photo credit: Wikipedia)[/caption] them; furnishing reports to users that it did not have reason to believe had permissible purposes to access them; failing to follow reasonable procedures to assure that its reports were as accurate as possible; and failing to provide FCRA-mandated “User Notices” outlining several important consumer protections. InfoTrack and its owner, Steve Kaplan, violated the FCRA by failing to use reasonable procedures to assure maximum possible accuracy of consumer report information obtained from sex offender registry records; failing to provide FCRA-required notices; and failing to provide written notices to consumers of the fact that InfoTrack reported public record information to prospective employers, when that information was likely to adversely affect consumers’ ability to obtain employment.
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How much do you need to make an hour to rent a house in NC?
While the politicians debate if Americans can survive on minimum wage, the landlords of NC know that a tenant probably needs to make $14 an hour to afford a modest apartment. According to the Asheville Citizens Times, "The report found an estimated 49 percent of Asheville renters do not earn enough to afford a two-bedroom unit at the fair market rent." To read the story click here [caption id="" align="alignleft" width="350"]Minwage Minwage (Photo credit: Wikipedia)[/caption]   Related articles
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Background Checks-What Employers Need to Know

The article below is from EEOC and the Federal Trade Commission

http://business.ftc.gov/documents/0487-background-checks-what-employers-need-know 

Background Checks: What Employers Need to Know

A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission When making personnel decisions — including hiring, retention, promotion, and reassignment — employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check. However, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC). In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.

Before You Get Background Information

EEOC

In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination. Except in rare circumstances, don’t try to get an applicant’s or employee’s genetic information, which includes family medical history. Even if you have that information, don’t use it to make an employment decision. (For more information about this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don’t ask any medical questions before a conditional job offer has been made. If the person has already started the job, don’t ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.

FTC

If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • don’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Using Background Information

EEOC

Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:
  • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job – despite the negative background information – unless doing so would cause significant financial or operational difficulty.

FTC

When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:
  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.
By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.
  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Disposing of Background Information

EEOC

Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.

FTC

Once you’ve satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports – and any information gathered from them – securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed. For more information, see Disposing of Consumer Report Information? Rule Tells How.

Further Information

EEOC

To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on: Preemployment medical inquiries: see Preemployment Disability-Related Questions and Medical Examinations. Medical inquiries during employment: see Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA). Genetic inquiries, including inquiries about family medical history: see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008. EEOC recordkeeping requirements: see Summary of Selected Recordkeeping Obligations in 29 C.F.R. Part 1602. Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance. Background on the EEOC for small businesses: see Get the Facts Series: Small Business Information.

FTC

To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. For specific information on employment background reports, see: Using Consumer Reports: What Employers Need to Know The Fair Credit Reporting Act & social media: What businesses should know Background screening reports and the FCRA: Just saying you’re not a consumer reporting agency isn’t enough Reentry Myth Buster: Criminal Histories and Employment Background Checks The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law. February 2014
 
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Updated release forms
New Releases are required.  Please contact our office for new forms. From Monserrat Miller
A class action lawsuit has been filed against Whole Foods Market alleging violations of the Fair Credit Reporting Act (FCRA) in the U.S. District Court Northern District of California (Gezahegne v. Whole Foods Market California, Inc.; 4:14-cv-00592). The complaint alleges Whole Foods Market obtained consumer reports without a valid disclosure and authorization due to extraneous language in the notice.  The complaint alleges the following:
  • Plaintiff and other similarly situated individuals executed online authorization forms to obtain a consumer report as part of the employment application process from January 2009 to present.
  • The disclosure and authorization forms are invalid because Whole Foods Market included liability release language and therefore the forms did not “consist solely of the disclosure."
  •  Not only are the forms invalid, but the actions by Whole Foods Market trigger statutory damages in the amount of up to $1,000/individual for whom a consumer report was procured based on the form.
The relevant language of the form reads, “I hereby authorize Whole Foods Market to thoroughly investigate my references, work record, education and other matters related to my suitability for employment and, further, authorize the references I have listed to disclose to the company any and all letters, reports, and other information related to my work records, without giving me prior notice of such disclosure.  In addition, I hereby release the company, my former employers and all other persons, corporations, partnerships and associations from any and all claims, demands or liabilities arising out of or in any way related to such investigation or disclosure (emphasis added).” The complaint alleges violations of the FCRA requirement that prior to procuring a consumer report on an applicant for employment an employer provide a clear and conspicuous disclosure and obtain the applicant’s written authorization. Furthermore, that the disclosure consist solely of the disclosure. (FCRA section 604(b)(2)). The courts will decide this particular matter and this matter is in the early stages as it was filed just this month.  As a general rule, employers should be cognizant of their disclosure and authorization form as releases of liability or disclaimers regarding the consumer reports can be problematic.  The FCRA places responsibility for the disclosure and authorization form on the employer.  In some instances, background screening companies may handle such for an employer, but the ultimate responsibility for the form lies with the user procuring the report or causing the report to be procured.
For complete article click here [caption id="" align="alignleft" width="247"]Background Check Bozeman, MT Background Check Bozeman, MT (Photo credit: grace mcdunnough)[/caption]
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Charlotte, NC bans the box
Charlotte, NC joins the numerous jurisdictions that ban the question, "Have your ever been arrested, convicted, charge with a crime
Charlotte City Manager Ron Carlee has removed the box on city job applications that asks candidates to disclose their criminal records. The move puts Charlotte among a growing roster of cities, including Durham, Seattle and Minneapolis, that have eliminated the question on applications to make it easier for people with criminal histories to get hired.
Read more here: http://www.charlotteobserver.com/2014/02/28/4731175/charlotte-wont-ask-about-convictions.html#storylink=cpy
  [caption id="" align="alignleft" width="350"]English: Taken in fall of Charlotte, NC English: Taken in fall of Charlotte, NC (Photo credit: Wikipedia)[/caption]
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Credit checks and pre-employment screening
Senator Elizabeth Warren has introduced legislation that will ban credit reports for employment purposes. The bill is known as Equal Employment for All would prohibit employers from using credit reports to make employment hiring decisions. According to Senator Warren:
It was once thought a credit history would provide insight into a person’s character and today, many companies routinely require credit reports from job applicants, but research has shown that an individual’s credit rating has little to no correlation with his or her ability to succeed in the workplace.  A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual’s character or abilities.  Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness — let people compete on the merits, not on whether they already have enough money to pay all their bills.
[caption id="" align="alignright" width="320"]Credit Report - Before and After Credit Report - Before and After (Photo credit: TrinityCreditServices)[/caption]
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Criminal Background Checks in the Hiring Process: the Escalating Risks
Hunton & Williams is offering a complimentary webinar on "Criminal Background Checks in the Hiring Process: the Escalating Risks"  
Employers' use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts. Please join us for a complimentary webinar on this topic Thursday, January 16, 2014 10:00 a.m. - 11:00 a.m. PT (1:00 p.m. - 2:00 p.m. ET)
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Criminal Record Searches and the FCRA class action lawsuits
[caption id="" align="alignleft" width="320"]cfpb cfpb (Photo credit: afagen)[/caption]   From the Hunton Employment and Labor Perspectives, a recap of 2013 FCRA Class Settlements.   We have seen a number of significant cases this year involving both employers and consumer reporting agencies.   Such as   Roe v. Intellicorp Records, Inc., Civ. No. 1:12CV2288-JG (N.D. Ohio): in this consolidated class action, plaintiffs accused two CRAs of providing inaccurate criminal background reports to employers that caused the class of applicants to suffer adverse actions, and of not notifying them at the time defendants provided the consumer reports to prospective employers.  The case settled on November 12, 2013, when defendants agreed to pay $18.6 million to settle the FCRA claims.   To read more, go to Hunton's blog, http://www.huntonlaborblog.com/2014/01/articles/criminal-background-checks/criminal-background-checks-reviewing-the-year-in-fcra-class-action-settlements/index.html                        
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Finally! When websites make you Guilty forever, unless you pay!
  Here is the latest update on websites such as Slammer, MugShots, etc.  These websites publish your mug shot whether you are found guilty of not. Then when you ask them to remove it, they force you to pay for removal.  As one victim explained, even if you pay the EXTORTION to have your mug shot removed, it is just displayed on another. From ABC News, Lawmakers and Credit Card Companies Take Aim at the Mug shot websites. Mug shots of Lyle and Erik Menendez    
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The devastating collateral consequences of a criminal record
Many people find out that after a criminal conviction, employment is almost impossible. The article below details the pain!   Punished for life: Unexpected repercussions dog defendants who agree to cop even minor pleas   “There are a lot of people who have done one stupid thing and been caught for it when they are youth, and they have this economic death sentence around their neck.”  
—Ed Monahan, public defender in Kentucky The implications of a criminal record vary from state to state, with layers of penalties imposed at the federal and state levels. A criminal record can affect housing, employment and educational opportunities. People convicted of drug crimes or sex offenses can be barred from public housing or access to Section 8 housing vouchers. Private landlords can refuse to rent to people with a criminal record, and employers are under no obligation to hire them. In many states, people with felony convictions have limited access to licenses for everything from hunting to plumbing to selling theater tickets.
  [caption id="" align="alignleft" width="180"]Prison cell with bed inside Alcatraz main buil... Prison cell with bed inside Alcatraz main building san francisco california (Photo credit: Tim Pearce, Los Gatos)[/caption]   Please read the complete article  "Punished for Life"                   Related articles              
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Employers must update FCRA notices for background checks by January 1
[caption id="" align="alignleft" width="240"]cfpb cfpb (Photo credit: afagen)[/caption] Here is a good recap from Lexology: CIR has sent updated forms this year. If you need copies, please let us know. Overview The Consumer Financial Protection Bureau, which now has primary rulemaking responsibility for the Fair Credit Reporting Act, has released new regulations requiring employers to update certain FCRA-mandated forms by January 1. The changes consist primarily of substituting the CFPB for the Federal Trade Commission as the point of contact for questions regarding consumers’ rights under the FCRA. From Choate Hall & Stewart LLP You can find the forms: Summary of Rights Under the FCRA  Notice to Users of Consumer Reports: Obligations of Users Under the FCRA Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA From Littler Before January 1, 2013, employers should substitute the new FCRA Summary of Rights for the one currently being used when they: (1) enclose the form with the "pre-adverse action" notice; and (2) provide the form with required disclosures for investigative consumer reports. Because of the intensive focus on background check programs by the Equal Employment Opportunity Commission (EEOC)15 and the wave of new state laws (e.g., the new laws in Vermont16 and Indiana17), it is also an opportune time for employers to consider thoroughly assessing their credit and criminal record-based screening policies and procedures for opportunities to fortify compliance with all applicable laws.
What forms have been modified?-Nexsen Pruet The new regulations require the adoption of modified versions of the following three forms, the first of which is most significant for employers:
  • “A Summary of Your Rights Under the Fair Credit Reporting Act.”  If an employer relies on information in a consumer report or an investigative consumer report to make an adverse decision about a prospective or current employee, the employer must follow strict guidelines in notifying the individual of the decision.  The employer must provide the individual with a copy of the consumer report and written information describing the individual’s rights under the FCRA, known as the General Summary of Consumer Rights.  This form must be provided to the subject of a consumer report in two scenarios:
    • Along with a “pre-adverse action” notice, and
    • Along with disclosure notices when obtaining any “investigative consumer report.”
It is advisable for employers to include this form with “adverse action” notices, as well.  Prior to January 1, 2013, employers should switch over to the new FCRA Summary of Rights when providing pre-adverse and adverse action letters in lieu of the FTC form currently in use. The newly updated form is available at http://www.ecfr.gov/graphics/pdfs/er21de11.019.pdf . Additionally, the following two forms have also been modified:
  • “Notice to Users of Consumer Reports:  Obligations of Users Under the FCRA.”  This is a form that consumer reporting agencies must provide to those who use their services, such as employers.
  • “Notice to Furnishers of Information:  Obligations of Furnishers Under the FCRA.”  The FCRA requires consumer reporting agencies to provide this notice to providers of information in certain situations, such as re-investigations triggered by a prospective employee’s dispute of the information.
Why Conduct a Background Check? While there may be rigorous requirements mandating how to conduct a criminal background check rather than whether to conduct one, many employers find it prudent to undertake them.  Taking such appropriate initial steps in screening prospective employees can go a long way toward 1) verifying that employees are qualified and do not have a propensity to cause harm, thereby mitigating risks of negligent hiring claims; and 2) minimizing potential liability.  However, employers should take action now in adopting the new forms required by the CFPB to ensure compliance prior to the January 1, 2013, deadline. " (from Lexology-Nexsen Pruet)  
 
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Sesame Street helps families with incarcerated parents.
prison Sesame Street has a toolkit to help families explain and deal with the incarceration of parents.  It is sad thing but a reality when more Americans are incarcerated than any other country in the world. Read this New York Times article for greater detail with the rate of incarceration in the USA-"US Prison Population Dwarfs that of other Nations". Here is the link to activities and storybooks to help the children. Little Children-Big Challenges-Incarceration
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Facebook and Employers
[caption id="" align="alignleft" width="266"]Facebook logo Facebook logo (Photo credit: Wikipedia)[/caption] Only 6 states outlaw employers ability to look at an applicant's facebook page. California and Illinois have joined the ranks of Michigan, New Jersey, Maryland, and Delaware in passing state laws against the practice. To read the full article, click here
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Restrictions on the use of Credit Reports for Employment
Colorado joined eight other states-California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington-in restricting the use of credit history information for employment purposes. From the Colorado Springs Gazette- http://gazette.com/money-the-law-bill-limits-employers-use-of-credit-reports/article/154017   
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Child Abuse and Neglect Registry
From the Child Welfare Information Gateway     (To Print, click here)
Among the requirements for receiving Federal funding under the Child Abuse Prevention and Treatment Act (CAPTA), States must preserve the confidentiality of all child abuse and neglect reports and records to protect the privacy rights of the child and of the child's parents or guardians except in certain limited circumstances.2 All jurisdictions have confidentiality provisions to protect abuse and neglect records from public scrutiny. Confidentiality provisions mandate that such records are confidential, and many include specific mechanisms for protecting them from public view.

Persons or Entities Allowed Access to Records

Most jurisdictions permit certain persons access to registry and department records. In general, these people have a direct interest in a case, in the child's welfare, or in providing protective or treatment services. Many statutes specifically describe who may access the records and under what circumstances. Typically, persons entitled to access are physicians; researchers; police; judges and other court personnel; the person who is the subject of a report; a person who was an alleged child victim; and the parent, guardian, or guardian ad litem of an alleged victim who is a minor. In approximately 18 States and Puerto Rico, the person or agency that made the initial report of suspected abuse or neglect may be provided with a summary of the outcome of the investigation.3 In approximately 19 States and Guam, a prospective foster or adoptive parent is provided with information from the records in order to help the parent in meeting the needs of the child.4 In 25 States and the District of Columbia, public agencies in other States are permitted access to information related to their child protection duties.5

When Public Disclosure of Records Is Allowed

Under most circumstances, information from child abuse and neglect records may not be disclosed to the public. In approximately 27 States and the District of Columbia, however, some disclosure of information is allowed in cases in which abuse or neglect of the child has resulted in a fatality or near fatality.6 In three States, the alleged perpetrator of the abuse must be criminally charged with causing the fatality or near fatality before information may be disclosed. (North Carolina)7 Georgia and South Carolina require public disclosure of information when a child in State custody has died. Approximately 13 States allow disclosure of information for the purpose of clarifying or correcting the record when information has already been made public through another source, such as disclosure by the subject of the report, a law enforcement agency, or the court.8 In five States, public disclosure is allowed when a suspected perpetrator of abuse or neglect has been arrested or criminally charged.9

Use of Records for Employment Screening

Central registry and department records are used increasingly to screen adults for various employment or volunteer positions. Approximately 29 States and the District of Columbia allow or require a check of central registry or department records for individuals applying to be child care or youth care providers.10 Information is made available to employers in the child care business, schools, or health-care industry. However, it is generally limited to whether there are substantiated or indicated reports of child maltreatment for potential employees or volunteers who will have significant contact with children. Four States allow parents to check the records of child abuse and neglect for a provider of child care to help them determine whether to hire that provider to care for their child.11 In 21 States and the District of Columbia, a person or agency conducting an investigation of a prospective foster or adoptive parent may access the records.12 To access the statutes for a specific State or territory, visit the State Statutes Search. 1 The records referred to are maintained by State child protection agencies and are not the same as those accessed during a criminal history records check. Criminal histories are records of convictions maintained by the criminal justice system. back 2 42 U.S.C.A. §5106a(b)(2)(A)(viii)-(x) (LexisNexis 2010). back 3 The word approximately is used to stress the fact that States frequently amend their laws. This information is current through June 2010. The States that provide information to reporters of maltreatment include California, Colorado, Connecticut, Georgia, Iowa, Louisiana, Maine, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Pennsylvania, Rhode Island, Wisconsin, and Wyoming. back 4 Arizona, Arkansas, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, and Wisconsin. back 5 Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, and Wisconsin. back 6 Alabama, Arizona, Arkansas, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, South Dakota, Texas, West Virginia, and Wisconsin allow disclosure when there has been a fatality or near fatality. A 'near fatality' is usually defined as a serious injury that places the child in critical condition. back 7 Minnesota, North Carolina, and Oklahoma. back 8 Arizona, Connecticut, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Montana, Nebraska, New York, South Carolina, and Wisconsin. back 9 Colorado, Illinois, Maine, Nebraska, and New York. back 10 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. back 11 Louisiana, Mississippi, Missouri, and New Jersey. back 12 Arizona, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Utah, and Wisconsin. back This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway. While every attempt has been made to be as complete as possible, additional information on these topics may be in other sections of a State's code as well as agency regulations, case law, and informal practices and procedures.

This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.
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Expungement of Child Abuse Records from "Public Protection Registry"
Although it is difficult for the public to access these "public protection registry", entry on these registries can be devastating to the individual. According to www.childwelfare.gov, a listing on these registries can be expunged in certain circumstances. Below are the requirements by state:

 STATE STATUTES

Current Through June 2011 Review and Expunction of Central Registries and Reporting Records Electronic copies of this publication may be downloaded at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.cfm To find statute information for a particular State, go to http://www.childwelfare.gov/systemwide/laws_policies/search/index.cfm To find information on all the States and territories, order a copy of the full?length PDF by calling 800.394.3366 or download it at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.pdf
Records of child abuse and neglect reports are maintained by State child protection or social services agencies to aid in the investigation, treatment, and prevention of child abuse cases and to provide statistical information for staffing and funding purposes. In many States, these records and the results of investigations are maintained in databases, often known as central registries. Following an investigation, States classify child abuse records in a variety of ways, depending on the State’s statutory language. The classification ‘unsubstantiated’ often is ascribed to situations in which investigators have been unable to confirm the occurrence of abuse or neglect. Other terms for unsubstantiated can include ‘unfounded,’ ‘not indicated,’ or ‘unconfirmed.’ The classification ‘substantiated’ often is given to a report when a determination has been made that abuse or neglect likely did occur. Other terms for substantiated include ‘founded,’ ‘indicated,’ or ‘confirmed.’ Several States maintain all investigated reports of abuse and neglect in their central registries, while other States maintain only substantiated reports. Many States use the records that are maintained in central registries for background checks for persons seeking employment to work with children and for prospective foster and adoptive parents. Therefore, several due process and protection issues arise when a State maintains a central registry that identifies individuals accused of and found to have committed child abuse or neglect. In some cases, persons whose names are listed as alleged perpetrators in a central registry have asserted that the listing of their name in the registry deprives them of a constitutionally protected interest without due process of law. Approximately 28 States, the District of Columbia, American Samoa, and Puerto Rico provide an individual the right to request an administrative hearing to contest the findings of an investigation of a report and to have an inaccurate report expunged or deleted from the registry.1 In Louisiana, New Hampshire, and North Carolina, a person who wishes to challenge a report must petition the court for a hearing. In Delaware, an individual who has successfully completed a service plan may petition the court to have his or her name removed from the central registry. In Wyoming, any person who has been named in a substantiated report of child abuse or neglect has the right to submit to the registry a statement concerning the incident.

Right of the Reported Person to Review and Challenge Records

1 The word approximately is used to stress the fact that States frequently amend their laws. This information is current through June 2011. The States that provide for administrative review include Arizona, Arkansas, Colorado, Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.

When Records Must Be Expunged

The terms ‘expunction’ or ‘expungement’ refer to the procedures used by States to maintain and update their central registries and record keeping by removing old or inaccurate records. Under the Child Abuse Prevention and Treatment Act (CAPTA), in order to receive a Federal grant, States must submit plans that include provisions and procedures for the prompt expunction of records of unsubstantiated or false cases if the records are accessible to the general public or are used for purposes of employment or other background checks.2 CAPTA does, however, allow State child protective services agencies to retain information on unsubstantiated reports in their casework files to assist in future risk and safety assessment. Approximately 40 States, the District of Columbia, American Samoa, and Guam have provisions in statute for the expunction of certain child abuse and neglect reports.4 Statutes vary as to expunction standards and procedures. For example, the time specified for the expunction of unfounded or undetermined reports generally ranges from immediately upon determination to 10 years.5 A few States, however, do not permit unfounded reports to be placed on the registry at all. Substantiated reports are usually retained longer, typically at least until the child victim has reached adulthood. 2 42 U.S.C.A. § 5101 et. seq. (2010). 3 42 U.S.C.A. § 5106a(b)(2)(B)(xii) (2010). Ten States (Alaska, Idaho, Kansas, New Mexico, North Dakota, Ohio, Oregon, Tennessee, Texas, and Wisconsin) and the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands do not have provisions in statute for the expunction of child abuse and neglect records.  For more information, see Chapter 4, National Study of Child Protective Services Systems and Reform Efforts: Review of State CPS Policy (2003), U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, and Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau: http://aspe.hhs.gov/hsp/CPS-status03/state-policy03/index.htm This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway. While every attempt has been made to be complete, additional information on these topics may be in other sections of a State’s code as well as agency regulations, case law, and informal practices and procedures. (Child Welfare Information Gateway. (2011). Review and expunction of central registries and reporting records. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau. Review and Expunction of Central Registries and Reporting Records http://www.childwelfare.gov. This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway. Available online at http://www.childwelfare.gov/systemwide/laws_policies/statutes/registry.cfm
U.S. Department of Health and Human Services Administration for Children and Families Administration on Children, Youth and Families Children’s Bureau Child Welfare Information Gateway Children’s Bureau/ACYF 1250 Maryland Avenue, SW Eighth Floor Washington, DC 20024 800.394.3366 Email: info@childwelfare.gov http://www.childwelfare.gov  
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Credit Reports and Employment Decisions
[caption id="" align="alignleft" width="300"]Factors contributing to someone's credit score... Factors contributing to someone's credit score, for Credit score (United States). (Photo credit: Wikipedia)[/caption] The use of credit reports to make employment decisions is becoming RISKY. Experts are concluding that credit reports should be banned for the use of Screening applicants, job promotion, etc except in certain circumstances. While some experts state that credit reports reflect the risk of employee theft, studies have not found that to be true. Many experts question how a credit report will tell an employer how the applicant will perform in the warehouse or the tendency towards tardiness or absences. "There is apparently little scientific research showing a clear link between someone’s personal consumer behavior and their performance on the job." (http://www.staffingtalk.com/should-pre-employment-credit-checks-be-banned/)
Suzanne Lucas spent 10 years in corporate HR, and founded the Carnival of HR, a bi-weekly gathering of HR blogs. Here are her suggestions for good laws on pre-employment credit checks: (same link as above)
  • Credit checks should be made after an offer has been made, not before.
  • Require companies to have written policies on how credit histories will be used.
  • Require companies to tell candidates up front if a credit check will be performed.
  • Require multiple years to be taken into consideration.
  • Let companies decide when credit checks are necessary, not lawmakers.
Employers consider the use of credit reports as a decision factor to be "one of the least important". A 2010 SHRM report shows that employers have decreased the use of credit reports in employment decisions. In 2004,  19% of employers always conducted credit reports, while in 2010, it was down to 13%. Most employers do not request a credit report unless a "job offer" has been made. Two-thirds of the employers allow a candidate to "explain" poor credit report, before a decision to hire is made. The following reasons for employment credit reports: (http://www.shrm.org/research/surveyfindings/articles/documents/ccflier_final.pdf)
  1. Positions with Fiduciary responsibility (handling cash, banking, accounting, compliance, and technology (91%)
  2. Senior Executive Positions (46%)
  3. Positions with access to highly confidential information (HR, medical, etc)(34%)
  4. Positions for which state law requires a background check (day care, medical practitioners (11%)
  5. Positions with security responsibility  (9%)
  6. Positions involving national defense or homeland security (8%)
  7. Safety-sensitive positions (heavy equipment operators, transportation) (5%)
  8. Positions with vulnerable public (children, elderly, disabled) (3%)
  9. Positions in health care or access to drugs (3%)
Companies that use credit reports as a "condition" of employment might want to reconsider the policy. Employers will lose valuable applicants/employees if they use credit reports without a policy of necessity. Due to the economy, many potential employees have "bad credit" due to the recession. No employment, limited employment, and the corresponding foreclosures, medical bills, etc. are today's cause of bad credit. Is good credit more important that the ability to perform the job? You may find yourself hiring candidates with great credit, "but NO EXPERIENCE."  
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North Carolinians "dying" for a job?
According to US Labor Department, NC under reports the number of work place deaths and injuries. In 2010, NC reported 35 deaths, while the US Department of Labor counted 148.
"A total of 744 people died on the job in NC in the five year period from 2007-2011. The most common cause of fatalities was transportation incidents (291 deaths), followed by assaults and violent acts (151), contact with objects (121), and falls (109). 52 people died from exposure to harmful substances or environments and 19 from fires and explosions." Workplace violence is a major cause of death in the state. We (NC Occupational Safety and Health )identified 13 people who were killed on the job due to violence in NC in 2012, but the actual number is likely considerably higher. The US Bureau of Labor Statistics found that 19 people were killed on the job in 2011 in NC due to violent acts." (North Carolina Worker's Dying for a Job)
"The U.S. Labor Department audited North Carolina in 2010, finding that the state downplayed serious safety problems, issued weak fines to violators and failed to properly handle whistleblower complaints."  http://www.thetimesnews.com/news/region-state/study-more-n-c-workers-die-on-job-than-reported-1.135223  Read more here: http://www.charlotteobserver.com/2013/04/29/4011756/nc-job-deaths-undercounted-study.html#storylink=cpy
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Viewing ourselves in the worst light-through mugshots.
Most people despise Mugshots.com, the Slammer, etc. It seems as though that We like to glorify in the pain and misery of others.  Slammer and Mugshots lets us see ourselves at our worst " - in mugshots. (I thought DMV pictures were the worst).  Most of the people in these photos are not convicted criminals, just people arrested, and without an official "indictment". These sights glorify in our misery (shame is not enough).  Even if we are found NOT GUILTY, not indicted, wrong person, etc....these websites continue our misery and shame.  Then when we ask for corrections, they are going to charge us. Now a Georgia legislator wants to help. State Rep. Roger Bruce (D-Atlanta) states that "People are being extorted". "It wouldn't affect police agencies or the news media, but it would be aimed at commercial companies that charge to remove it from their websites or publications. In addition to requiring free removal, his bill would also allow lawsuits for damages as well as require police agencies to copyright mugshots they take". http://www.11alive.com/rss/article/268273/40/Georgia-lawmaker-wants-to-police-mugshot-websites Here is the legislation.  GOOD LUCK GEORGIA.  WE APPRECIATE YOU.  http://www.legis.ga.gov/legislation/en-US/Display/20132014/HB/150  [caption id="" align="alignleft" width="300"]Al Capone. Mugshot information from Science an... Al Capone. Mugshot information from Science and Society Picture Gallery: Al Capone (1899-1947), American gangster, 17 June 1931. 'Al Capone sent to prison. This picture shows the Bertillon photographs of Capone made by the US Dept of Justice. His rogue's gallery number is C 28169'. (Photo credit: Wikipedia)[/caption]                       Here is a website devoted to a class action suit against mugshots. http://classactionagainstmugshotwebsites.com/wp/  
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Public Records belong to the State and its Residents, not to the citizens of the USA
According to the US Supreme Court, public records belong to the citizens of the "state" not to the citizens of the United States. In this particular case, Americans do not have the right to public records of another state.  The unanimous decision upheld laws in Virginia and a handful of other states that release some public records only to their own citizens.  How will this affect "data brokers"? Will this protect US citizens from information brokers?  Will this make it harder to conduct criminal record searches? Read the full article here:  http://online.wsj.com/article/SB10001424127887323798104578453300289567938.html Tennessee, Alabama, Arkansas, Missouri, New Hampshire, New Jersey and now Virginia have some form of law limiting access to public records for non-citizens. Will this benefit NC, its citizen's and businesses.  I like limiting what is available about me, but really need the information about ...you, no matter where you live. [caption id="" align="alignleft" width="300"]U.S. Supreme Court building. U.S. Supreme Court building. (Photo credit: Wikipedia)[/caption]    
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Bankruptcy in America
Here is a link to the Santa Barbara Newspaper.  http://www.independent.com/  Staff writer Harley Hahn has done a great job with bankruptcy. He is providing 7 articles, so far three are available:   English: Part of Title 11 of the United States...
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FTC Top Consumer Frauds
English: Cartoon showing statue of Andrew Jack... FTC released the latest study of consumer frauds. This study released April 2013 updates the last study from 2005. According to the FTC "During 2011, an estimated 10.8 percent of U.S. adults – 25.6 million people – were victims of one or more of the frauds included in the 2011 FTC Consumer Fraud Survey. There were an estimated total of 37.8 million incidents of these frauds during 2011. The specific types of fraud most frequently reported by survey participants included fraudulent weight-loss products, fraudulent prize promotions, being billed for a buyers’ club membership that one had not agreed to purchase, being billed for Internet services that one had not agreed to purchase, and fraudulent work-at-home programs.  http://www.ftc.gov/opa/2013/04/fraudsurvey.shtm
The  survey asked consumers about 15 specific categories of fraud, and two general categories, and of the specific categories the top 10 were:
  • Weight-loss Products (5.1 million estimated)
  • Prize Promotions (2.4 million est.)
  • Unauthorized Billing for Buyers’ Club Memberships (1.9 million est.)
  • Unauthorized Billing for Internet Services (1.9 million est.)
  • Work-at-Home Programs (1.8 million est.)
  • Credit Repair Scams (1.7 million est.)
  • Debt Relief (1.5 million est.)
  • Credit Card Insurance (1.3 million est.)
  • Business Opportunities (1.1 million est.)
  • Mortgage Relief Scams (800,000 est.)
An estimated 17.3 percent of African Americans and 13.4 percent of Hispanics were victims; the rate for non- Hispanic whites was 9 percent.  The survey found that high school graduates were the least likely to have been fraud victims; those who did not complete high school were the most likely to have been victims.  Consumers who were more willing to take risks and those who had recently experienced a negative life event (such as a divorce, death of a family member or close friend, serious injury or illness in their family, or the loss of a job) were much more likely to have been victims.  Consumers who indicated they had more debt than they could handle were significantly more likely to have been fraud victims than those who were more comfortable with the amount of debt they had.
To read more or download the study, click here:  http://www.ftc.gov/os/2013/04/130419fraudsurvey.pdf The FTC also offers ways to avoid fraud,  http://www.consumer.ftc.gov/articles/0060-10-ways-avoid-fraud      
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NC Second Chance Alliance

 Join the NC Second Chance Alliance at

SECOND CHANCE LOBBY DAY

Date and Time: Tuesday, April 23, 2013    9 AM – 5 PM Location: NC Legislative Building, 16 E Jones St, Raleigh, NC 27601 The NC Second Chance Alliance is a statewide alliance of advocacy organizations, service providers, faith-based organizations, community leaders and directly-impacted and concerned citizens that has come together to promote polices that remove barriers to productive citizenship for individuals with criminal records.

We Want:

  • To Preserve the Right to Vote After an Individual Completes His or Her Criminal Sentence
  • Adequately Funded & Coordinated Local Reentry Service Systems
  • Relief from the Stigma of Criminal Records
  • Accurate Criminal Records
  • Fair Employment & Use of Criminal Records
  • To Raise the Age and Keep Children out of the Adult System

Lobby Day Schedule:

9:00 am-   Check-in (Auditorium, 3rd Floor) 9:30 am-   Briefing (Auditorium, 3rd Floor) 10:30 am- Members Share Their Reentry Stories with Legislators 12:00 am- Lunch Provided (Halifax Mall—outdoor area behind Legislative Building) 2:00 am-   Senate and House Go Into Session

  For more details or to RSVP, please contact the Community Success Initiative at inquiry@communitysuccess.org. Please visit the NC Second Chance Alliance’s website at ncsecondchance.org.

NC Second Chance Alliance

Restoring Opportunities—Making Communities Stronger

We Are a statewide alliance of individuals with criminal records, service providers, faith-based organizations, community leaders and interested citizens that have come together to achieve the safe and successful reintegration of people with criminal records by promoting policies that remove barriers to productive citizenship. We Believe the current system of incarceration and re-incarceration is eroding the safety of our communities, draining our state's resources, and failing those who have paid their debts to society. We Thank You for the General Assembly’s recent bipartisan efforts to reduce barriers to reentry:
  • SL 2011-278 Expunction of Nonviolent Offense by Minor (Berger, McKissick, Daniel)
  • SL 2011-265 Certificate of Relief Act (Guice, Floyd)
  • SL 2012-191 Expunction of Nonviolent Offense by Adult (Daughtry)
  • SL 2012-168 Law Enforcement Changes (Local Reentry Councils) (Apodaca)
  • SL 2013-23 Good Samaritan Law/Naloxone Access (Bingham, Allran)
  • SL 2013-24 Use of Criminal Records by Licensing Boards (Hartsell)
  • SB 91 Prohibit Expunction Inquiry (Kinnaird, Daniel, Goolsby)
We Ask You to Support:
  • A “Ban the Box” policy for jobs with the State of NC that delays a criminal record request until a conditional job offer—HB 425 (Pierce, Hall, Brandon)
  •  Raise the Age for adult prosecution of misdemeanors to 18—HB 725 (Avila)
  •  Investment in local reentry councils that provide comprehensive reentry services in such areas as housing, employment, substance abuse, and transportation
  •  Improved opportunities for expungements and certificates of relief—HB 637 (Alexander); HB 207 (Brandon)
  •  Reclassification of low-level marijuana offenses as infractions—HB 637 (Alexander)
We Ask You to Oppose:
  • Felony Disenfranchisement—SB 721 (Newton) denies citizens with felony convictions the fundamental ability to participate in our democracy as voters even after they have paid their debts to society, thereby stripping them of their individual and collective voices and treating them as second-class citizens.
  • Eliminating Safeguards To Children Being Prosecuted as Adults—HB 217 (Faircloth, Stam) shifts the discretion whether or not to treat a 13, 14, or 15 year old defendant as a juvenile or an adult from the judge to the prosecutor.
For more info, please visit ncsecondchance.org or contact Bill Rowe at  (919) 856-2177.
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EEOC OFFERS NEW GUIDELINES IN THE USE OF CRIMINAL RECORDS
Today it is very difficult to get a job or rent a residence with a criminal record. Some people are denied jobs and/or residency for the most minor of a criminal history. This new reality does not benefit employers or the nation as a whole.   On April 25, 2012, the EEOC provided revised guidelines for the use of criminal records in employment decisions. We advise all tenant screening customers to also be aware of these guidelines.   The EEOC is charged with enforcing the Civil Rights Act.  Courts have determined that some use of criminal background checks by employers can cause a disparate impact on protected classes of minorities.  This guidance updates previous work of the EEOC.  Although the EEOC is not permitted to issue a formal rule, this guidance is important because the EEOC can sue employers on behalf of employees, and the guidance can be used by private plaintiffs.   Employers are not banned from using background checks.  However, they must analyze whether they have a specific acceptable reason related to the nature of the job for requiring the checks.  (NCISS Legislative Update, dated April 25, 2012)   To provide some background, January 2012, Pepsi agreed to pay $3.13 million to applicants in a settlement it reached with the EEOC regarding its use of criminal records. Pepsi denied jobs to any applicant with a criminal record, whether it was an arrest record, dismissed case or a conviction.   In addition, in recent legislation, a Virginia Company and the criminal record database used by the employer, paid each applicant it conducted a criminal record, $50,000. In this instance, the employer denied a job to any applicant whose name appeared in the database with no regard as to the actual owner of the record.   At one time, background screening was conducted by professionals. Today background screening companies have popped up with only purpose of making a quick buck and the effect on the applicant or the employer is of no importance. New businesses have popped up as the database companies sell “background screening businesses” Most of these companies care nothing about the needs of employers or landlords- as now they own a technology company. They consider themselves to be selling “public records” and exempt from the FCRA.   The proliferation of the online “instant criminal record check” has caused major problems and new regulations. There is often no way for wronged job applicants to correct the data. Many companies will refuse to correct the data, so each time the database is used by another employer the same bad data displays. Applicants have to send their expungement papers to every database company as each is individually owned and maintained, and they may not be able to find every company using the database to correct the data. Companies are now popping up offering to help job applicants find and notify every database company of the expungement.   Research has been conducted and published by the national press regarding the devastating effect the use of the so called “national instant criminal record databases” has had on job applicants. The proliferation of these databases on the internet with no regard for either v accuracy or privacy is causing further regulatory review and judicial action.   In response to the new guidelines, CIR wants its clients to be informed and also to review their background screening policy.   Under the Fair Credit Reporting Act, an employer’s obligation is:  
  1. Obtain a signed release in a document separate and apart from the employment application.
  2. Conduct pre-adverse action if the background is returned with possibly disqualifying information, allowing the applicant time to review for accuracy and allow for discussion.
  3. Conduct the final adverse action.
  Included in these requirements is to identify and supply contact information for the consumer reporting agency (background screening company).  The background screening company must answer the telephone or have other means in which a consumer can communicate with the consumer reporting agency. The company must respond to the applicant and must correct inaccurate data.   The use by employers of these databases creates several problems: 1)      Accuracy and thoroughness of the databases-These databases are NOT national. The court data in these databases is very limited. More and more states and counties are refusing to sell their court data because of the rate of error in these databases. 2)      Lack of dispositions, lack of identifiers, corruption of data, inclusion of expunged cases 3)      Lack of knowledge regarding the use of the database. Although the employer may be conducting the search, the data is consider to derive from a consumer reporting agency, therefore all requirements of the Fair Credit Reporting Act apply.   The article “Broken Records” How errors by criminal background checking companies harm workers and businesseshttp://www.nclc.org/issues/broken-records.html details the problems with background screening today. The article is worth reading.   The EEOC offers the following guidelines regarding the use of criminal record histories (http://www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm )   The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991.  The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.  Among other topics, the guidance discusses:
  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and c(conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.
The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.   At this page is also a link to download the employer’s manual. Or also here http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#IIIB . We recommend our clients review this new guidance.   A criminal record policy is recommended to be included in every company’s employee handbook, which details the business necessity for excluding the job applicant based on the criminal record. According to the article, Broken Records….92% of companies claim crimes of violence and crimes of theft are business necessity.  The EEOC provides guidance on company policy for criminal record checks in the manual http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#IIIB   Ultimately we encourage employers to give job applicants a 2nd Chance when feasible. A person should not be punished forever for a crime. It is the job of the justice system to judge and punish the person, while it is the job of a company to do due diligence and protect itself, its employees, and the general public from harmful persons. Length of time since the offense and severity of the crime should be a part of each decision.   Some suggestions you may wish to consider on future background reports: 1)      No arrest information unless identified business need (such as companies working with vulnerable public) 2)      Conviction only reports 3)      Omission of traffic records, after 3 years, except DUI’s and other serious driving offense 4)      Limiting the length of misdemeanor reporting, such as all felony convictions, but misdemeanors only for last 3-7 years,   If you need a sample background screening policy, pre-adverse or adverse action forms, the latest “Summary of Rights under the Fair Credit Reporting Act let us know.   We suggest you review the new guidelines, make sure your background screening policy is up to date, and review your job application to be sure you are not asking “Have you ever been arrested, convicted, etc”, unless you have a definite business necessity. Identify disqualifying information by type of crime, severity of crime, time since the crime and the business necessity of excluding the crime (Such as excluding sex offenders who will be in contact with women, elderly or children). Crimes of violence and theft are business necessity.   The EEOC provides these best practices for employers:  

VIII. Employer Best Practices  (http://www.eeoc.gov/laws/guidance)

The following are examples of best practices for employers who are considering criminal record information when making employment decisions. General
  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
Developing a Policy
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
      • Identify the criminal offenses based on all available evidence.
      • Determine the duration of exclusions for criminal conduct based on all available evidence.
        • Include an individualized assessment.
        • Record the justification for the policy and procedures.
        • Note and keep a record of consultations and research considered in crafting the policy and procedures.
    • Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
Confidentiality
  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
 
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Back to the CIR Blog
I have been away from the blog, but am back now and hope to bring interesting articles and news about private investigations and background screening.  Some of the topics to explore this year: 1) Value of Professional Membership organizations 2) Use of internet databases to conduct background screening. 3) Specialization of private investigations
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Notices and Requirements under the FCRA
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Below is a consumer article from the Federal Trade Commission regarding background screening and employers duties and responsibilities under the Fair Credit Reporting Act. This is a well written article that I cannot truly improve on and recognize the importance to our clients.  The Federal Trade Commission provides more information about background screening and credit reports. Go to www.ftc.gov

Employment Background Checks and Credit Reports

You’ve applied for a job. You sent a letter, made a phone call, submitted your resume. Perhaps you’ve had an interview. Did you know that when you apply for a job, an employer may ask your permissio to do a background check before hiring you? Depending on the employer and the job, that background information might include your employment history, your driving record, criminal records, and your credit report. Your credit report has information about where you live, how you pay your bills, and whether you have filed for bankruptcy. Credit reporting companies and other businesses that provide background information sell your file to employers that, in turn, use it to evaluate your applications for employment. Employers also are allowed to use these reports to consider you for retention, promotion or reassignment.

Did You Know?

Not only do credit reporting companies provide information to employers, but they also sell it to creditors, insurers and other businesses that, in turn, use it to evaluate your applications for credit, insurance, or renting a place to live.
The Federal Trade Commission (FTC), the nation’s consumer protection agency, enforces the Fair Credit Reporting Act (FCRA), a law that protects the privacy and accuracy of the information in your credit report. The FCRA spells out your rights as a job applicant and an employer’s responsibilities when using credit reports and other background information to assess your application. The law also enables you to get a free copy of your credit report by requiring each of the three national credit reporting companies — TransUnion, Equifax and Experian — to provide it to you every 12 months if you ask. That means if you stagger your requests to each of the companies, you can get a free copy of your credit report every four months.

Applying for a Job?

Before you apply for a job, it’s a good idea to order a free copy of your credit report. Each of the nationwide credit reporting companies — TransUnion, Equifax, and Experian — is required to provide you with a free copy of your credit report once every 12 months, if you ask for it. To order, visit annualcreditreport.com or call 1-877-322-8228. When you order, you’ll need to provide your name, address, Social Security number, and date of birth. To verify your identity, you may need to provide some additional information that only you would know — for example, the amount of your monthly mortgage payment if you own a home. Each of the three national credit reporting companies may ask you for different information. If you prefer to order your reports by mail, complete the Annual Credit Report Request Form and mail it to:
Annual Credit Report Request Service P.O. Box 105281 Atlanta, GA 30348-5281
You use this form, or you can print it from ftc.gov/credit. For more information about free credit reports, see Your Access to Free Credit Reports at ftc.gov/credit.

Key Employment Provisions

The big picture is this: An employer must get your permission before asking for a report about you from a credit reporting company or any other company that provides background information. If you don’t give your okay, your application for employment may not get a second look. That’s up to you. But if you don’t get the job because of information in your report, the employer has some legal obligations: First, the employer must show you the report; second, the employer must tell you how to get your own copy. The report is free if you ask for it within 60 days of learning the bad news. Here are more details about these provisions: Notice and Authorization. Before an employer can ask for reports about you from any companies that provide them, it must tell you that it might use the information to make a decision. This notice is separate from other documents you get — like an application. An employer may not get a report about you for employment purposes without getting your permission or authorization first, usually in writing. Pre-Adverse Action Procedures. If an employer might use information from a credit or other background report to take an “adverse action” — say, to deny your application for employment or a promotion, to terminate your employment or to reassign you — he must give you a copy of the report and a document called A Summary of Your Rights Under the Fair Credit Reporting Act before taking the adverse action. Read your report, and contact the company that issued it if you find inaccurate or incomplete information. You also can explain any inaccurate or incomplete information to an employer, but that won’t fix errors in your report. To do that, you have to contact the company that issued the report and dispute the information. If an investigation reveals that a correction is warranted, the credit reporting company or other company providing background information must send an updated report to the employer if you ask them to. Even if the information is not corrected in time to benefit you with that particular employer, it’s a good idea to dispute inaccurate information so it can be corrected before your next job interview or assignment comes along. Adverse Action Procedures. If an employer takes an adverse action against you based on information in a report, it must tell you — orally, in writing, or electronically. The notice to you must include:
  • the name, address, and phone number of the company that supplied the credit report or background information;
  • a statement that the company that supplied the information didn’t make the decision to take the adverse action and can’t give you any specific reasons for it; and
  • a notice of your right to dispute the accuracy or completeness of any information in your report and to get an additional free report from the company that supplied the credit or other background information if you ask for it within 60 days.

Notice of Negative Public Records

If a company provides an employer with a report that has negative information about you gathered from public records — for example, tax liens, outstanding judgments, or criminal convictions — that company either has to tell you that it provided the information to the employer or it has to take special steps to make sure the information is accurate. If you get a notice that a company has provided negative public record information to an employer, you may have a chance to correct or clarify it, which, in turn, may help you get or keep a job. For more information about this, see How to Dispute Credit Report Errors atftc.gov/credit.

If Employers Don’t Comply with the FCRA

There are legal consequences for employers who don’t comply with the FCRA, whether they fail to get an applicant’s okay before getting a copy of their credit or other background report, fail to provide the appropriate disclosures in a timely way, or fail to provide adverse action notices to unsuccessful job applicants. If you think an employer has violated the FCRA, report it to the FTC, because the law allows the FTC, other federal agencies, and states to sue employers who don’t comply with the law’s provisions. The FCRA also allows people to sue employers in state or federal court for certain violations. The FTC works to prevent fraudulent, deceptive and unfair business practices in the marketplace and to provide information to help consumers spot, stop and avoid them. To file a complaint or get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. Watch a new video, How to File a Complaint, at ftc.gov/video to learn more. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
May 2010
To read the full article and for more information, please visit the Federal Trade Commission's website by clicking here
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Arrest Records and Pre-Employment Screening
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Below is a story from the Washington Post that highlights the dangers of considering arrest records for employment decision. The EEOC has ruled that it is discriminatory to consider arrest records when hiring.
Precious Daniels was upset with Blue Cross Blue Shield of Michigan for its stance on health-care legislation last year, so she decided to demonstrate her anger with a peaceful protest. She blocked the doorway of the company's Detroit headquarters and got arrested for her trouble. Her husband paid the $50 bail, then she was released and told to appear for a court date on a disorderly conduct charge. When she did, the misdemeanor was dropped. The arresting officer apparently thought so little of the case that he didn't even file the paperwork. But the arrest means much more to the Census Bureau. After Daniels applied to help Uncle Sam count his people, he said no.
To read the complete story, please click here
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Links Page

Links of interest

Who is being detained by ICE, (Immigration & Customs Enforcement) -Detainee Database Summary of State Laws Regarding Disclosure of Child Abuse Records https://www.childwelfare.gov/systemwide/laws_policies/statutes/confide.cfm National Exoneration Registry http://www.law.umich.edu/special/exoneration/Pages/about.aspx My blogs http://carolinainvestigator.wordpress.com/ and https://cirblog.wordpress.com/wp-admin/ (Exactly how many do I need-but I started these first The following links are courtesy of Pursuit Magazine 1) Bank Routing Numbers -Who issued the check? 2) Who issued that credit card-Issuer Identification Number

Winston Salem Police Department Incident Reports and Warrant List

Who has a warrant in Forsyth County and you can search the incident report. Click Here for the Winston Salem Police Department
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Credit Scores are lower for most Americans
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Should credit scores influence employment or tenant screening decisions?  According to the Associated Press, Americans have lower FICO scores than in the past. See http://www.msnbc.msn.com/id/38205674/ns/business-personal_finance FICO INc. states that 1 out of 4 Americans have a credit score below 599, which makes them a poor risk for credit cards, car loans, or home loans under the new lending standards. Restricted access to credit is one reason for the slow recovery of the economy. What are the major reasons for a decline in our scores?
  1. 26 million people are out of work or underemployed
  2. Millions face foreclosure
  3. Those with mid-range scores are finding it harder to qualify for affordable loans
  4. Computer generated scores cannot differentiate between people and cause and effect
To read the complete article, click here
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Expunction Laws around the US
Different states have different requirements for expungement of records. Some states only allow non-convictions to be [caption id="" align="alignright" width="500" caption="Trapped by a criminal record"][/caption]expunged, while other states allow for expunction once a certain number of years have passed and no new crimes occurred. According to Lawyers.com, "
The terms "expungement" and "sealing" are often used interchangeably, but there are some differences. "Sealing" is when criminal records are hidden from the general public. "Expunging" a criminal record means that the record is completely destroyed; it's as if the crime never happened" Each state has its own definition of expungement, based on different rules and laws. Some states may not use the term "expungement," but rather terms like "expunction," "removal," or "destruction" of criminal records. And even if the term "expungement" is used, the records may not completely "disappear" and may still be available to law enforcement.
For answers to some questions, please see lawyers.com Here is a state by state look at expunction laws: (provided by www.lawyers.com ) Alabama-
Section 41-9-625 - Erasure of records when there's no conviction, or charges are not filed or dropped after arrest-Expunction of arrest information-If any person arrested or taken into custody is subsequently released without charge or cleared of the offense through criminal justice proceedings, such disposition shall be reported by all state, county and municipal criminal justice agencies to ACJIC within 30 days of such action, and all such information shall be eliminated and removed.
Pardons and Paroles -See  Section 15-22-36 Juvenile Records-must wait 2 years after completion of sentence and not have re-offended. See Section 12-15-103 Alaska-  see lawyers.com
Description Statute
Purging (destroying) criminal information Alaska Stat. § 12.62.190
Sealing criminal information Alaska Stat. § 12.62.180
Expungement of DNA records Alaska Stat. § 44.41.035
Sealing of juvenile records Alaska Stat. § 47.10.090
Pardons Alaska Stat. §§ 33.20.70 and 33.20.80
Inspection and copying of criminal information Alaska Stat. § 12.62.160
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How to Expunge a criminal record
[159-365] Trapped
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Different states have different requirements for expungement of records. Some states only allow non-convictions to be expunged, while other states allow for expunction once a certain number of years have passed and no new crimes occurred. According to Lawyers.com, "
The terms "expungement" and "sealing" are often used interchangeably, but there are some differences. "Sealing" is when criminal records are hidden from the general public. "Expunging" a criminal record means that the record is completely destroyed; it's as if the crime never happened" Each state has its own definition of expungement, based on different rules and laws. Some states may not use the term "expungement," but rather terms like "expunction," "removal," or "destruction" of criminal records. And even if the term "expungement" is used, the records may not completely "disappear" and may still be available to law enforcement.
For answers to some questions, please see lawyers.com Here is a state by state look at expunction laws: (provided by www.lawyers.com ) NOTE-THIS IS A WORK IN PROGRESS, AND HAS BEEN MOVED TO ITS OWN PAGE FOR COMPLETION
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Personal Protection/Self Defense Class-class rescheduled
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What is better "taking control of the situation" or using a weapon such as a gun or taser? Carolina Investigative Research is offering a class in Personal Protection or Self Defense. If  interested call or email me. Maximum of 14-16 people per class. Class is set for August 14, 2010 from 8-5. Learn what to do if an intruder enters the house, or how to "get away" if the intruder/assailant grabs you. Class Instructor is Woody Best, Retired US Customs, Senior Special Agent; Senioir Instuctor at the Federal Law Enforcement Training Center, and Master Instructor with the Ronin Police Defensive Tactics Association.
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Spy Software and Private Investigators
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Some private investigators found a new niche when keylogging software became available. The manufacturers of this software would advertise at the local PI conferences. Private investigators who thought this would help clients solve cheating spouse cases gladly purchased the software, learned to use it and began to install the software on client computers. Even employers had the software installed to determine what employees were doing on business computers.  At the same conference, we would listen to attorney's tell us that it was illegal to obtain spouses email, so many of us stayed away from this type of service. Looks like once again, there is no easy way to make money. The Federal Trade Commission now bars the marketing of keylogging software. (One less vendor at the conferences) On June 2, 2010 issued the following news release:
The FTC is announcing a settlement that bars the sellers of the “RemoteSpy” keylogger from advertising that the spyware can be disguised and installed on someone else’s computer without the owner’s knowledge. It requires that the software provide notice that the program has been downloaded and obtain consent from computer owners before the software can be installed. In 2008, the FTC filed suit against CyberSpy Software, LLC and its owner, Tracer R. Spence, alleging they were violating the law by advertising and selling RemoteSpy, a keylogger software program that the defendants touted as a “100% undetectable” way to “Spy on Anyone. From Anywhere.” According to papers filed with the court, the defendants provided their clients with detailed instructions explaining how to disguise the spyware as an innocuous file, such as a photo, attached to an e-mail. When the e-mail recipient clicked on the attachment, the RemoteSpy program was downloaded and installed without the victim’s knowledge. The spyware recorded every keystroke typed on an infected computer; captured images of the computer screen; obtained passwords, and recorded Web sites visited. To access the information gathered and organized by the spyware, RemoteSpy clients logged into a Web site maintained by the defendants. The final Order bars the defendants from providing purchasers with the means to disguise the product as an innocent file or e-mail attachment. It also requires that they inform purchasers that improper use of the software may violate state or federal law. The final Order also requires the defendants to take measures to reduce the risk that their spyware is misused, encrypt data transmitted over the Internet, police their affiliates to ensure they comply with the order, and remove legacy versions of the software from computers on which it was previously installed.
To read the complete release, click here The Federal Trade Commission provides a website to help consumers protect themselves online.  http://www.onguardonline.gov. It provides a wealth of information including this game...The Case of the Cyber Criminal
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Credit reports and background screening
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More and more legislation is being proposed that would eliminate the use of credit reports in background screening. What should an employer or landlord consider? The Federal Trade Commission provides guidelines to landlords, employers and background screening companies. What is a credit report? A credit report is defined by the Federal Reserve as "a loan and bill payment history, kept by a credit bureau and used by financial institutions and other potential creditors to determine the likelihood that a future debt will be repaid." According to the FTC (Federal Trade Commission) a credit report contains information about where a consumer lives, pays bills, has been sued or filed bankruptcy. The credit bureaus then sell that information to creditors, insurers, employers and other businesses that use it to determine whether or not to extend credit, employment, tenancy, membership, etc. The information affects whether or not a consumer gets a loan and how much interest it will cost to borrow the money. The accuracy of the report is paramount to both the consumer and to businesses who use credit reports. It is an indication of "creditworthiness" i.e. a creditor's measure of a consumer's past and future ability and willingness to repay debts. Good credit is valuable. Having the ability to borrow funds allows us to buy things we would otherwise have to save for years to afford: homes, cars, a college education. Credit is an important financial tool, but it can also be dangerous, leading people into debt far beyond their ability to repay.  A credit history or "credit report" shows prospective lenders whether a consumer is creditworthy by revealing details about the amount of debt the consumer may already have, how many credit cards, and whether the consumer makes payments on time.
Among the most common reasons people are turned down when they apply for credit are:
  • Too little time in current job or at current residence.
  • Too much outstanding debt.
  • Unreasonable purpose for requesting credit.
  • Cosigner cannot take on additional debt liability.
  • Errors on applicant's credit report
  • Strict creditor's standards.
See http://www.frbsf.org/publications/consumer/credit.html#footer2 for more information.
For employers-a credit report is often used to indicate an employees ability to manage money for the employer. It is essential when considering a person's ability as a salesman, any financial position or human resources. For landlords-a credit report indicates the ability of the individual to pay monthly rent. How credit cards are paid is an indication of how the individual pays monthly bills. Now many Americans are finding themselves out of work and the bills are mounting.
Background screening-Is it just a check?
Background screening is a traditional tool of the investigator. Every investigation should begin with a background check. Who is the person under investigation? What is his history? Does the subject have a propensity to violence? Background investigations seek to answer the question, "Who is this person?". Although long used by investigators, employers have also wanted the answer to the same question. Background screening came into play for employers by the late 1980's. Traditionally background checks were conducted by licensed private investigators. Today, due to lack of effective private investigator licensing, many non-investigative companies are involved in background screening. Today many databases are available on the web offering a criminal record check, address verification etc with no concern for accurate information. Many people like a quick and dirty look at a person, without realizing the website may contain errors.  It has been verified numerous times by professional background screening companies that the information provided by many online websites are inaccurate, have programming errors that result in faulty results and are not legal to conduct employment or tenant screening.  Although the databases have value to professional search companies, the use by the general public should come with a disclaimer. 'THIS IS FOR ENTERTAINMENT ONLY, THE RESULTS MAY OR MAY NOT BE ACCURATE. I intend to offer more detail about database searches in future posts. Many large employment screening companies today send employment screening applicants personal information to overseas companies to conduct background screening on the applicants. As the US does not have "privacy laws", there is nothing to prevent these companies from sending personal data to be processed overseas. It is a sad day, when a criminal record check on an American is conducted overseas. Evidently "privacy laws" do not apply to Americans anywhere in the world and our personal data has no restrictions. Anybody anywhere in the world can obtain the personal data of Americans. Every job applicant should ask the company where they are applying who conducts the background checks and whether or not the applicant's personal information, (name, date of birth, social security number, driver's license) will be sent out of the country. Companies who retain background companies should ask how the work is conducted. Who does the background check? Is it conducted by a license US investigator, or by a clerical person in India or China. A company's membership in NAPBS does not mean the company conducts quality backgrounds. It only means they paid the membership fees. NAPBS is a "anyone can join" association. So on the membership lists, am employer will find many companies that are not "professional background screeners", but database companies that no one should use for anything other than "entertainment" Background screening is a critical part of employment decision making. It has a major impact on a potential employees ability to obtain a job or a promotion, a renters ability to live in a domicile, and according to the internet-get a date. Background screening should be conducted honestly and accurately. Employers and employees depend on it. Landlords and renters depend on it. It should be about the facts and not about entertainment.
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About
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This blog is to assist clients with the latest information about background screening and investigations. Currently the blog has a main page for background screening and a page for investigations. Knowing that search engines only search the main page, investigation articles will also be placed on the main page, while articles on interest mainly to the profession will be found on the Investigations page. Carolina Investigative Research Inc. (CIR) is located in Cary, NC. It is an investigation company  licensed in North and South Carolina.
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Hello world! We are moving the blog
Many of our readers have enjoyed our blog on Wordpress, We are now putting the blog on the website so clients don't have to leave our site to read the blog.  To see the old blog, click here or the Carolina Investigator is available here. The new blog will contain information about investigations and background screening.
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"Thorough investigative research is essential in today's world. Carolina Investigative Research is committed to providing thorough, accurate and timely information."

Carolina Investigative Research is a private investigation company, licensed in North Carolina and South Carolina. We are fully insured.

The company is headquartered in Cary, North Carolina. offering complete investigation and litigation support to law firms, individuals, governmental entities, corporations and insurance companies.

Carolina Investigative Research provides thorough, detailed and professional investigative services. No matter what the scope of the investigation, CIR conducts the investigation promptly, discreetly, and ethically. For more information about our investigation services, click here

Please browse our website for extensive information regarding investigations and pre-employment screening.

 

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