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Saturday, January 28, 2012

North Carolina Pushes Background Checks Again: Due Diligence, Safety Or Discrimination?

Killing puts background checks in spotlight

The killing of a south Charlotte store manager - allegedly by a felon hired to work there - highlights the risks companies take when they hire an employee with a criminal record, or don't do a full background check on applicants.

The Flying Biscuit Cafe in StoneCrest shopping center faces possible fines or other penalties from the Alcohol Law Enforcement division for hiring Mark Anthony Cox, 22.

Background checks are only legally required in certain fields, such as child care and for people who work with the elderly, but the Flying Biscuit could be penalized because businesses aren't allowed to hire Felons convicted in the last three years for jobs that involve serving alcohol.

Cox is accused of stabbing 25-year-old Danielle Watson to death and robbing the store the night of Jan. 13. Prosecutors also have said they plan to charge Cox with a second count of murder in connection with Watson's unborn child.

He was released from prison in November, state records show, after serving nearly two years for robbery and breaking and entering.

A state Department of Crime Control and Public Safety spokeswoman said the Flying Biscuit's owner told ALE agents that a background check wasn't performed on Cox. The owner did tell WBTV that Cox had acknowledged a conviction during his interview. It's not clear if the owner knew the nature of the conviction.

Attempts to reach Flying Biscuit owner Hugh Bigham were unsuccessful Friday.

"A lot of small employers just don't think about background checks, or say they don't have the money," said Kenny Colbert, president of the Charlotte-based human resources group The Employers Association. He said the cost of a full screening is usually about $50, although there are North Carolina-only screens that go for as little as $10.

In the Charlotte region, Colbert said, 90 percent of companies with 500 or more employees do pre-hiring background checks, based on a survey of The Employer Association's nearly 900 member businesses. In contrast, only about 20 percent of firms with 20 or fewer employees said they do background checks.

Companies that don't conduct background checks on employees could be exposing themselves to legal liability, Colbert said. Employers lose more than 70 percent of negligent hiring lawsuits, according to statistics from background check company American DataBank.

Employers spend roughly $2 billion a year checking out employees, according to published reports. A wealth of material also is available free online, such as N.C. Department of Correction records, which detail Cox's prior conviction.

Timothy Keister, general partner at Charlotte-based background check company Total Screening Solutions, said business has been steady through the recession and recovery. He said his company does background checks and drug tests on behalf of large employers, but also for smaller employers.

"In this bad instance we have here, more than likely we would have pulled it up," said Keister, talking about Cox's past conviction.

He said his role isn't to tell employers whether to hire someone, but to enable them to decide based on the facts.

Advocates for those with criminal records point out that nearly everyone who is sentenced to prison will be released at some point, and they are less likely to be involved with further crimes if they can find legitimate work.

Employers shouldn't assume that someone with a criminal record will cause harm in the workplace, said Myra Clark, executive director of the Charlotte-based Center for Community Transitions, which provides employment and transition services to people with criminal records.

"There are a lot of people who have an encounter with the criminal justice system, and that's the only encounter they're ever going to have," she said. "There are people who make a conscious decision to change their lives."

Often, a search of someone's criminal record will show arrests for charges that may later have been dismissed. That might make it difficult for employers to determine which charges they should pay attention to, Clark said. Last year, background check company HireRight agreed to pay $28.4 million to settle claims related to not notifying people their background was being checked, and not responding to complaints of inaccurate information.

Outside of industries that are legally required to conduct background checks, there's little in the way of universal standards when it comes to employer liability, said Bernard Tisdale, managing partner for the Charlotte office of labor law firm Ogletree Deakins.

"It's all a matter of degree," said Tisdale. "It's all gray. Not everybody has got a duty to do a background check."

Aside from extreme cases - "bringing on the convicted ax murderer with ongoing psychological problems," as Tisdale put it - employer liability can vary greatly. It depends, for instance, on the type of business, and whether the employer kept the employee on despite warning signs.

Tisdale also said employers could put themselves at risk of legal action if a background check prompts them to improperly reject an applicant.

Colbert tells employers to examine how relevant and recent a prospect's criminal record is.

Background checks have figured in several high-profile N.C. cases. The estates of two women who were beaten to death at Galloway Ridge retirement home near Chapel Hill sued the facility in 2010. They claimed the facility should have done a background check on the cleaning woman convicted in their killings. The case is still in court.

But employers can be faulted even if they performed background checks, especially if those checks miss something.

The city of Charlotte has paid more than $617,000 to defend and settle lawsuits stemming from former Charlotte-Mecklenburg Police Officer Marcus Jackson. He was arrested and charged with sexually assaulting women during improper traffic stops. CMPD admitted that a pre-employment screening didn't turn up a domestic violence restraining order filed by Jackson's girlfriend, which should have disqualified him.

And Charlotte-Mecklenburg Schools is being sued by a former South Mecklenburg High School student who claims she was sexually victimized by a band director. A proper background check, the lawsuit alleges, would have found a history of inappropriate behavior with students at previous schools. CMS said it conducted a thorough background check.

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Sources: McClatchy Newspapers, WBTV, WCNC, Youtube, Google Maps

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