How you ask a question is very important in establishing the basis for an effective interview; they open the door to knowledge and understanding of the facts as they relate to the matter with which we are asked to investigate.  The subtle art of productive questioning lies in knowing which questions to ask and when.  Asking effective interview questions also requires the interviewer to be cognizant of his/her verbal and nonverbal behavior as well.

There are two basic types of questions, open-ended questions and closed-ended questions; here are the differences:

• Open questions.  Open-ended questions require more than a simple “yes” or “no” answer.  They elicit the interviewee to describe, explain, or come to some conclusion based on their own understanding of the facts.  Asking open-ended questions increase the chances of getting additional details and ensure a greater accuracy of the facts from the interviewee’s perspective.

Examples of good open questions include, “How would you describe this accident?”  How did the accident happen?” or “Why did Joe fall off of the scaffolding?”

• Closed questions.  Closed questions implicate a very short or specific factual answer and can be helpful in directing the interviewee’s attention toward relevant information and establishing facts.  Closed questions can be used to pinpoint critical information.  You should only ask specific questions when you are looking for a specific answer.

Examples of good closed-ended questions include, “What time did the fire start?”  “Who was in the car with you when the accident occurred?” or “Did you see the stop sign?”

The correct investigative approach to interviewing anyone is with the time honored “Who, What, When, Where and Why” process.

Knowing who contributed or were associated with an event creates more opportunity to gather information but should not be used to assign blame to any one of them.  That is a job best left for legal counsel and a judge or jury.

Understanding what happened is the core of any insurance investigation.  All details that are relevant must be gathered and cataloged in the investigative report.

The time when something happened can reveal important elements in the evolution of the event being investigated.  For example, did you know that most fraudulent workers’ compensation claim accidents occur on Mondays or after vacations and major holidays, and then, most often early in the morning?

The place where an event occurred reveals important facts such as a physical layout of an accident scene or working conditions.

Asking a witness or claimant why something happened most often reveals the most useful information regarding any insurance claim.  “How” questions are often used interchangeably with “why” questions as they both require the respondent to describe the “mechanics” of an event.   These often get closest to the root cause of the event.  Asking “why questions” repeatedly often reveals more information than would normally be uncovered.  On the other hand, if asking why an accident happened causes a defensive reaction in the person being interviewed, you should consider it a red flag and make an effort to probe further when permitted.  I have found that when I ask a claimant, who is subsequently found to be faking or inflating their claim, why a specific loss occurred, they have a tough time “creating” enough facts to support their statement and eventually begin to feel the pressure that I may soon detect their deception.  This burden increases the nonverbal indicators of their deceit, prompting me to continue to ask questions so that these “facts” will be recorded and debunked later in the claims process.  As a private investigator I am only concerned with the collection of statements of fact, I’ll let someone else decide which statements are true.

You can liken the process of investigative interviewing to that of putting material into a funnel; at the top of the funnel goes the most information, elicited with open-ended questions asked early in the interview.  At the bottom of the funnel come the most pointed, closed ended questions meant to pinpoint and clearly define the facts of the investigation.  The process of developing these facts synthesizes somewhere in the middle of the funnel.  The subject’s broad based recollections and feelings about an event are eventually distilled into the cause-and-origin of the event.  If the investigation is based on a complicated situation, simplify the approach by organizing your “funneling technique” so that each aspect of the event is examined one at a time in its own funnel.

Here are 10 tips for creating and asking questions:

• Ask open-ended question to elicit the most information;
• Ask closed-ended questions to establish fact or to influence the direction and nature of an interview;
• Avoid asking leading questions, such as “Were you at the top of the ladder when you fell?”  Leading questions inject “facts,” which may or may not be true, directly into the question and must be avoided.  Instead ask, “How did you injure yourself?” Response: “I fell from a ladder.”  Follow up:  “Where were you on the ladder when you fell?”  Response:  “I was about two thirds the way up ladder.”  Follow up:  “Why did you fall?”
• Avoid using negative wording.  Ask, “Do you remember seeing the other car?” rather than, “You don’t remember seeing the other car do you?”
• Organize your questions into groups regarding related concepts (i.e. ask all of your questions pertaining the identity and description of a vehicle that was involved in an accident, then ask about the numbers and identities of witnesses, then ask for a description of the accident scene, then ask all of your questions regarding how it happened, etc. rather than asking questions without a logical order);
• Ask important questions several times in a variety of different ways;
• Do not use technical terms or investigative jargon with an interviewee unless you are sure that he/she understands specifically to what you are referring;
• Ask several simple questions rather than one complex question;
• If the answer seems overly complex, ask MANY more simple questions to clarify the answer;
• Ask questions for information rather than for confirmation.

Asking questions is obviously an important aspect of the interviewing process but it is only a part of the process.  An interview is a “guided conversation” requiring the private investigator to be both a sender of information (asking the questions) as well as a receiver of information (listening to the answer, understanding what new facts were gained and formulating another question).  Communication is a two-way street.  It is as important, if not more important, to be an effective listener as it is to be competent at asking questions.

This article is a small excerpt from Statements, Lies and videotape: A Private Investigator’s Guide to Conducting Insurance Claim Investigations, an online continuing education course for private investigators

Before you conduct physical or electronic surveillance you should be competent and well trained in the technical and legal aspects of surveillance.  If for any reason you have violated a subject’s rights and are indeed found negligent in a court of law, not only can you or your agency be held liable, but the client hiring you or your agency can also be held liable for damages.

Conducting surveillance illegally is just not worth the consequences (i.e. losing your business, your license, your reputation).  If for some reason you are placed in a situation that may involve trespassing, entrapment or some other violation, think before you commit.

Some of the possible risks that may arise from physical surveillance are traffic violations, trespassing, roping and entrapment, invasion of privacy, and stalking.

Traffic Violations

In all instances, you should obey the law to the best of your capacity and traffic violations are no different.  Seldom are we ever working a case that is so important as to jeopardize the general public due to careless or reckless driving and the flagrant disregard for traffic laws.  If you have an accident because of negligent acts committed during an investigation your client will be held liable as well; this is not good for positive word of mouth advertising.

Trespassing

Trespassing is simply the act of entering private property without the consent of the land owner.  Trespassing can be a very complicated subject, mostly because state laws vary so extensively.  As an investigator, the key thing to remember in gathering your evidence, whether photographically or otherwise, is that if you violate trespassing laws while gathering your evidence then all that evidence is going to be inadmissible in a court of law.   Yes, there are states that still allow an investigator to go on a third party’s property with consent, such as a neighbor.  Again you should thoroughly research your state’s laws on trespassing prior to setting up in the neighbor’s yard.

A stationary technical surveillance platform should never be placed on the subject’s private property. Nor should an investigator enter posted private property or attempt to utilize a right of way to access a better vantage point of the subject’s property. Right of ways are legal property agreements between two parties and the fact that a right of way exists on the subject’s property does not make it a public thoroughfare.

Roping and Entrapment

Roping is the obtaining of information from another person by means of legal deception.  For instance, a private investigator acting drunk in a lounge in order to gain the confidence of a drinking buddy is “roping that person.”

Roping, however, can also lead into nefarious acts such as dropping a bunch of loose change on a subject’s porch in order to videotape him bending over to pick the coins up during a disability assignment.

Roping is, in many instances, very obvious to a judge and jury and should never be attempted as it could cause your client exorbitant amounts of money in civil suit damages.  Roping is synonymous with pretexting and the investigator should be mindful that the things he does or says may very well come out in a courtroom.

Entrapment is creating a condition in which the target of an investigation is required to perform a certain action.  Letting the air out of a target’s tires in order to obtain photographs of his ability to change a tire is entrapment because the subject is required to change the tire in order to use his vehicle.

In the instance of an undercover agent investigating employee theft, the investigator must be careful not to do or say anything that entices or encourages the subject(s) to do anything illegal.  His job is to detect theft not to cause it; he may assist but never insist.

In order to obtain evidence by means of pretending to be an accomplice in this situation you must be absolutely sure of the following precepts:

1. The plan and criminal intent must originate in the suspect’s own mind;
2. The target must commit all of the essential elements of the crime.

Invasion of Privacy

“Invasion of Privacy” deals with the area of expected privacy by an individual.  Any evidence obtained in violation of an individual’s privacy will not be admissible in a court of law.  Privacy is “the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions.” (Black’s Law Dictionary.) Therefore, surveillance in a public place is not private and there is no reasonable expectation of privacy in a public place.  Determining whether the law protects your privacy requires knowledge of the law and it is often a question of what society deems is reasonable.

Surveillance in areas such as bathrooms, locker rooms, changing/dressing rooms, bedrooms and other areas where a person should expect a high level of personal privacy is off limits.

Stalking

Stalking is defined as “a term used to describe unwanted attention by individuals (and sometimes groups of people) to others. Stalking behaviors are related to harassment and intimidation. It may also be used to refer to criminal offenses or civil wrongs that include conduct which some people consider to be stalking, such as those described in law as “harassment” or similar terms.

Over the past decade, most states have passed legislation prohibiting stalking. Investigators conducting surveillance must be aware of their own state’s stalking statutes and take the necessary steps in their surveillance activities to prevent themselves from being on the wrong side of a lawsuit.

One example that comes to my mind where surveillance may be alleged as stalking is the surveillance tactic of “rough shadowing.” Rough shadowing is a tactic used by investigators who are “public,” overzealous, or outright blatant in their surveillance activities such as parking outside the subject’s home in full view of neighbors, following subjects into places of business, or publicly videotaping subjects with no effort to conceal their motives or actions. This method of surveillance exposes the subject to public disgrace, ridicule, contempt or public embarrassment and may potentially result in a lawsuit. Remember Schultz v. Frankfort M. Accident & P.G. Insurance Company, 139 N.W. 386 (1913)? The Wisconsin Supreme Court ruled in favor of the plaintiff where the plaintiff had filed suit that he was being investigated through the use of rough shadowing. The plaintiff’s primary complaint was he could not perform his daily duties in a natural manner.

Bottom line, surveillance is to be covert and should never be openly and blatantly performed and never cause the subject to suffer any type of substantial emotional distress.

When you have a moment check out your state’s statues regarding stalking: http://www.esia.net/State_Stalking_Laws.htm

This article is a small excerpt from Serious Surveillance: Obtaining Evidence that Stands up in Courts, an online continuing education course for private investigators.

“Guns and Tactics magazine and InSights Training Center give some easy to remember and practical pistol shooting advice while showcasing our newest shooting bay!”

In this brand new series and very first episode of “Tactical Moment” featuring John Holschen from InSights Training Center they begin with the most practical advice you can start with: proper pistol grip.

If you like this series, please let us know and we’ll continue to provide more like this as well as other firearms related information professional investigators can use!

A special thanks to our friends at Guns and Tactics Magazine for producing quality content!

Next, Terry Cox, CLI, current National Director of the National Association of Legal Investigators, and Ellis Armistead, CLI, President of Heartland Investigative Group, join Paul to talk about how to handle very large, media driven criminal cases. Terry and Ellis gained their expertise in cases that were sensational in their time. Among these, Terry Cox handled the Mary Winkler preacher’s wife murder trial in Tennessee, and Ellis handled federal appeal of Timothy McVeigh. Hear the details about each case, how each got involved, what attracts a media frenzy, how press scrutiny can affect the investigator’s personal life, and learn how to balance the work without losing your core clients.

Regular contributor Peter Psarouthakis of ISPLA joins Paul with a legislative update and to talk about what’s going on nationally among private investigators. Hear about the latest bills, such as the right to carry reciprocity act, and what ISPLA is doing to support this bill and the private investigator industry. Hear how ISPLA was at the forefront in Indiana where the legislature introduced a bill to repeal mandatory licensing of private investigators, security guards and a host of other professions. Learn how ISPLA helped kill that bill and how your involvement can help protect and support the industry.

Tune in next month to learn about how investigators expand their businesses into other areas, like security, forensics, pre-employment screening, and get the scoop on using metrics within your company to better manage your business.

CLICK HERE TO LISTEN TO THIS PODCAST NOW

Guests on the May 2012 podcast are:

• Terry R. Cox, CLI, The Lonewolf Group: #5 CR 7026, Booneville, MS 38829, 662-720-0063, trcox@lonewolfgroup.com, www.lonewolfgroup.com.
• H. Ellis Armistead, Heartland Investigative Group (Denver Office): Denver Place, 999 18th Street, Suite 2055, Denver, CO 80202, 303-825-2373, earmistead@heartlandinfo.com, www.heartlandinfo.com.
• Peter Psarouthakis, Investigative & Security Professionals for Legislative Action (ISPLA): 235 N. Pine Street, Lansing, Michigan 48933, 734-428-9663, isplavoice@gmail.com, http://ispla.org.
• Paul Jaeb, Heartland Investigative Group: 520 Nicollet Mall, Suite 520, Minneapolis, Minnesota 55402, 612-925-9255, pjaeb@heartlandinfo.com, www.heartlandinfo.com.

See The American Private Investigator resources for links to the organization websites mentioned in this podcast.

Consideration of Arrest and Conviction Records in Employment Decisions

I. Summary

• An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
• The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.
• The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.
• The Guidance discusses the differences between arrest and conviction records.
  • The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
  • In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
• The Guidance discusses disparate treatment and disparate impact analysis under Title VII.
  • A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
  • An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
    • National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
    • Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
      • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
      • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
• Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
• State and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7.
• The Guidance concludes with best practices for employers.

II. Introduction

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin.¹ This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.²

In the last twenty years, there has been a significant increase in the number of Americans who have had contact³ with the criminal justice system⁴ and, concomitantly, a major increase in the number of people with criminal records in the working-age population.⁵ In 1991, only 1.8% of the adult population had served time in prison.⁶ After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).⁷ By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.⁸ The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.⁹

Arrest and incarceration rates are particularly high for African American and Hispanic men.¹⁰ African Americans and Hispanics¹¹ are arrested at a rate that is 2 to 3 times their proportion of the general population.¹² Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime;¹³ by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.¹⁴

The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment.¹⁵ This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments,¹⁶ the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue.

The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.

III. Background

The contextual framework for the Title VII analysis in this Enforcement Guidance includes how criminal record information is collected and recorded, why employers use criminal records, and the EEOC’s interest in such criminal record screening.

A. Criminal History Records

Criminal history information can be obtained from a wide variety of sources including, but not limited to, the following:

• Court Records. Courthouses maintain records relating to criminal charges and convictions, including arraignments, trials, pleas, and other dispositions.¹⁷ Searching county courthouse records typically provides the most complete criminal history.¹⁸ Many county courthouse records must be retrieved on-site,¹⁹ but some courthouses offer their records online.²⁰ Information about federal crimes such as interstate drug trafficking, financial fraud, bank robbery, and crimes against the government may be found online in federal court records by searching the federal courts’ Public Access to Court Electronic Records or Case Management/Electronic Case Files.²¹
• Law Enforcement and Corrections Agency Records. Law enforcement agencies such as state police agencies and corrections agencies may allow the public to access their records, including records of complaints, investigations, arrests, indictments, and periods of incarceration, probation, and parole.²² Each agency may differ with respect to how and where the records may be searched, and whether they are indexed.²³
• Registries or Watch Lists. Some government entities maintain publicly available lists of individuals who have been convicted of, or are suspected of having committed, a certain type of crime. Examples of such lists include state and federal sex offender registries and lists of individuals with outstanding warrants.²⁴
• State Criminal Record Repositories. Most states maintain their own centralized repositories of criminal records, which include records that are submitted by most or all of their criminal justice agencies, including their county courthouses.²⁵ States differ with respect to the types of records included in the repository,²⁶ the completeness of the records,²⁷ the frequency with which they are updated,²⁸ and whether they permit the public to search the records by name, by fingerprint, or both.²⁹ Some states permit employers (or third-parties acting on their behalf) to access these records, often for a fee.³⁰ Others limit access to certain types of records,³¹ and still others deny access altogether.³²
• The Interstate Identification Index (III). The Federal Bureau of Investigation (FBI) maintains the most comprehensive collection of criminal records in the nation, called the “Interstate Identification Index” (III). The III database compiles records from each of the state repositories, as well as records from federal and international criminal justice agencies.³³

  The FBI’s III database may be accessed for employment purposes by:

  • the federal government;³⁴
  • employers in certain industries that are regulated by the federal government, such as “the banking, nursing home, securities, nuclear energy, and private security guard industries; as well as required security screenings by federal agencies of airport workers, HAZMAT truck drivers and other transportation workers”;³⁵ and
  • employers in certain industries “that the state has sought to regulate, such as persons employed as civil servants, day care, school, or nursing home workers, taxi drivers, private security guards, or members of regulated professions.”³⁶

Recent studies have found that a significant number of state and federal criminal record databases include incomplete criminal records.

• A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests.³⁷
• A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI’s III database were associated with a final disposition. ³⁸

Additionally, reports have documented that criminal records may be inaccurate.

• One report found that even if public access to criminal records has been restricted by a court order to seal and/or expunge such records, this does not guarantee that private companies also will purge the information from their systems or that the event will be erased from media archives.³⁹
• Another report found that criminal background checks may produce inaccurate results because criminal records may lack “unique” information or because of “misspellings, clerical errors or intentionally inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal activities.”⁴⁰

Employers performing background checks to screen applicants or employees may attempt to search these governmental sources themselves or conduct a simple Internet search, but they often rely on third-party background screening businesses.⁴¹ Businesses that sell criminal history information to employers are “consumer reporting agencies” (CRAs)⁴² if they provide the information in “consumer reports”⁴³ under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result in entry of a judgment of conviction, where the arrests occurred more than seven years ago.⁴⁴ However, they may report convictions indefinitely.⁴⁵

CRAs often maintain their own proprietary databases that compile information from various sources, such as those described above, depending on the extent to which the business has purchased or otherwise obtained access to data.⁴⁶ Such databases vary with respect to the geographic area covered, the type of information included (e.g., information about arrests, convictions, prison terms, or specialized information for a subset of employers such as information about workplace theft or shoplifting cases for retail employers⁴⁷), the sources of information used (e.g., county databases, law enforcement agency records, sex offender registries), and the frequency with which they are updated. They also may be missing certain types of disposition information, such as updated convictions, sealing or expungement orders, or orders for entry into a diversion program.⁴⁸

B. Employers’ Use of Criminal History Information

In one survey, a total of 92% of responding employers stated that they subjected all or some of their job candidates to criminal background checks.⁴⁹ Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud,⁵⁰ as well as heightened concerns about workplace violence⁵¹ and potential liability for negligent hiring.⁵² Employers also cite federal laws as well as state and local laws⁵³ as reasons for using criminal background checks.

C. The EEOC’s Interest in Employers’ Use of Criminal Records in Employment Screening

The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is discussed in Section V.

IV. Disparate Treatment Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis.⁵⁴ For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.⁵⁵

Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .”⁵⁶ Thus, an employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality – rather than qualifications and suitability for the position – is unlawful disparate treatment that violates Title VII.⁵⁷

There are several kinds of evidence that may be used to establish that race, national origin, or other protected characteristics motivated an employer’s use of criminal records in a selection decision, including, but not limited to:

• Biased statements. Comments by the employer or decisionmaker that are derogatory with respect to the charging party’s protected group, or that express group-related stereotypes about criminality, might be evidence that such biases affected the evaluation of the applicant’s or employee’s criminal record.
• Inconsistencies in the hiring process. Evidence that the employer requested criminal history information more often for individuals with certain racial or ethnic backgrounds, or gave Whites but not racial minorities the opportunity to explain their criminal history, would support a showing of disparate treatment.
• Similarly situated comparators (individuals who are similar to the charging party in relevant respects, except for membership in the protected group). Comparators may include people in similar positions, former employees, and people chosen for a position over the charging party. The fact that a charging party was treated differently than individuals who are not in the charging party’s protected group by, for example, being subjected to more or different criminal background checks or to different standards for evaluating criminal history, would be evidence of disparate treatment.
• Employment testing. Matched-pair testing may reveal that candidates are being treated differently because of a protected status.⁵⁸
• Statistical evidence. Statistical analysis derived from an examination of the employer’s applicant data, workforce data, and/or third party criminal background history data may help to determine if the employer counts criminal history information more heavily against members of a protected group.

V. Disparate Impact Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.⁵⁹

In its 1971 Griggs v. Duke Power Company decision, the Supreme Court first recognized that Title VII permits disparate impact claims.⁶⁰ The Griggs Court explained that “[Title VII] proscribes . . . practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.”⁶¹ In 1991, Congress amended Title VII to codify this analysis of discrimination and its burdens of proof.⁶² Title VII, as amended, states:

An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. . . .⁶³

With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.

A. Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct

1. Identifying the Policy or Practice

The first step in disparate impact analysis is to identify the particular policy or practice that causes the unlawful disparate impact. For criminal conduct exclusions, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. More specifically, such information also includes which offenses or classes of offenses were reported to the employer (e.g., all felonies, all drug offenses); whether convictions (including sealed and/or expunged convictions), arrests, charges, or other criminal incidents were reported; how far back in time the reports reached (e.g., the last five, ten, or twenty years); and the jobs for which the criminal background screening was conducted.⁶⁴  Training or guidance documents used by the employer also are relevant, because they may specify which types of criminal history information to gather for particular jobs, how to gather the data, and how to evaluate the information after it is obtained.

2. Determining Disparate Impact

Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans,⁶⁵ even though African Americans only comprised approximately 14% of the general population.⁶⁶ In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population.⁶⁷ Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.⁶⁸

African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged.⁶⁹ This rate climbs to 1 in 6 (or 17.2%) for Hispanic men.⁷⁰ For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%).⁷¹ Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites,⁷² and 7 states had a Black-to-White ratio of incarceration that was 10 to1.⁷³ In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men.⁷⁴

National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate impact charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s). For example, an employer may present regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact. The Commission will assess relevant evidence when making a determination of disparate impact, including applicant flow information maintained pursuant to the Uniform Guidelines on Employee Selection Procedures,⁷⁵ workforce data, criminal history background check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor market statistics.⁷⁶

An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact. In Connecticut v. Teal, the Supreme Court held that a “bottom line” racial balance in the workforce does not preclude employees from establishing a prima facie case of disparate impact; nor does it provide employers with a defense.⁷⁷ The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities.⁷⁸

Finally, in determining disparate impact, the Commission will assess the probative value of an employer’s applicant data. As the Supreme Court stated in Dothard v. Rawlinson, an employer’s “application process might itself not adequately reflect the actual potential applicant pool since otherwise qualified people might be discouraged from applying” because of an alleged discriminatory policy or practice.⁷⁹ Therefore, the Commission will closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. Relevant evidence may come from ex-offender employment programs, individual testimony, employer statements, evidence of employer recruitment practices, or publicly posted notices, among other sources.⁸⁰ The Commission will determine the persuasiveness of such evidence on a case-by-case basis.

B. Job Related For the Position in Question and Consistent with Business Necessity

1. Generally

After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of production and persuasion to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”⁸¹ In the legislative history of the 1991 Civil Rights Act, Congress referred to Griggs and its progeny such as Albemarle Paper Company v. Moody⁸² and Dothard⁸³ to explain how this standard should be construed.⁸⁴ The Griggs Court stated that the employer’s burden was to show that the policy or practice is one that “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and “measures the person for the job and not the person in the abstract.”⁸⁵ In both Albemarle⁸⁶ and Dothard,⁸⁷ the Court emphasized the factual nature of the business necessity inquiry. The Court further stated in Dothard that the terms of the exclusionary policy must “be shown to be necessary to safe and efficient job performance.”⁸⁸

In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an employer to “follow[] the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense.”⁸⁹ The Eighth Circuit identified three factors (the “Green factors”) that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity:

• The nature and gravity of the offense or conduct;⁹⁰
• The time that has passed since the offense or conduct and/or completion of the sentence; ⁹¹ and
• The nature of the job held or sought.⁹²

In 2007, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority⁹³ developed the statutory analysis in greater depth. Douglas El challenged SEPTA’s policy of excluding everyone ever convicted of a violent crime from the job of paratransit driver.⁹⁴ El, a 55 year-old African American paratransit driver-trainee, was terminated from employment when SEPTA learned of his conviction for second-degree murder 40 years earlier; the conviction involved a gang fight when he was 15 years old and was his only disqualifying offense under SEPTA’s policy.⁹⁵ The Third Circuit expressed “reservations” about a policy such as SEPTA’s (exclusion for all violent crimes, no matter how long ago they were committed) “in the abstract.”⁹⁶

Applying Supreme Court precedent, the El court observed that some level of risk is inevitable in all hiring, and that, “[i]n a broad sense, hiring policies . . . ultimately concern the management of risk.”⁹⁷ Recognizing that assessing such risk is at the heart of criminal record exclusions, the Third Circuit concluded that Title VII requires employers to justify criminal record exclusions by demonstrating that they “accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.”⁹⁸

The Third Circuit affirmed summary judgment for SEPTA, but stated that the outcome of the case might have been different if Mr. El had, “for example, hired an expert who testified that there is a time at which a former criminal is no longer any more likely to recidivate than the average person, . . . [so] there would be a factual question for the jury to resolve.”⁹⁹ The Third Circuit reasoned, however, that the recidivism evidence presented by SEPTA’s experts, in conjunction with the nature of the position at issue – paratransit driver-trainee with unsupervised access to vulnerable adults – required the employer to exercise the utmost care.¹⁰⁰

In the subsections below, the Commission discusses considerations that are relevant to assessing whether criminal record exclusion policies or practices are job related and consistent with business necessity. First, we emphasize that arrests and convictions are treated differently.

2. Arrests

The fact of an arrest does not establish that criminal conduct has occurred.¹⁰¹ Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed.¹⁰² Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty.¹⁰³

An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.

Another reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). As documented in Section III.A., supra, the DOJ/BJS reported that many arrest records in the FBI’s III database and state criminal record repositories are not associated with final dispositions.¹⁰⁴ Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.¹⁰⁵

Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.

3. Convictions

By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.¹⁰⁶ However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction. For example, a database may continue to report a conviction that was later expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor.¹⁰⁷

Some states require employers to wait until late in the selection process to ask about convictions.¹⁰⁸ The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience.¹⁰⁹ As a best practice, and consistent with applicable laws,¹¹⁰ the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

4. Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity

To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

• The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); ¹¹¹ or
• The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity. See Section V.B.9, infra (examples of relevant considerations in individualized assessments).

Depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.

5. Validation

The Uniform Guidelines describe three different approaches to validating employment screens.¹¹² However, they recognize that “[t]here are circumstances in which a user cannot or need not utilize” formal validation techniques and that in such circumstances an employer “should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact as set forth [in the following subsections].”¹¹³ Although there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications,¹¹⁴ and thereby provide a framework for validating some employment exclusions, such studies are rare at the time of this drafting.

6. Detailed Discussion of the Green Factors and Criminal Conduct Screens

Absent a validation study that meets the Uniform Guidelines’ standards, the Green factors provide the starting point for analyzing how specific criminal conduct may be linked to particular positions. The three Green factors are:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

a. The Nature and Gravity of the Offense or Conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation.¹¹⁵ With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.

b. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard.¹¹⁶ Subsequently, in El, the court noted that the plaintiff might have survived summary judgment if he had presented evidence that “there is a time at which a former criminal is no longer any more likely to recidivate than the average person . . . .”¹¹⁷ Thus, the court recognized that the amount of time that had passed since the plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in question.

Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.¹¹⁸

c. The Nature of the Job Held or Sought

Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job’s duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”¹¹⁹

7. Examples of Criminal Conduct Exclusions that Do Not Consider the Green Factors

A policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is inconsistent with the Green factors because it does not focus on the dangers of particular crimes and the risks in particular positions. As the court recognized in Green, “[w]e cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”¹²⁰

8. Targeted Exclusions that Are Guided by the Green Factors

An employer policy or practice of excluding individuals from particular positions for specified criminal conduct within a defined time period, as guided by the Green factors, is a targeted exclusion. Targeted exclusions are tailored to the rationale for their adoption, in light of the particular criminal conduct and jobs involved, taking into consideration fact-based evidence, legal requirements, and/or relevant and available studies.

As discussed above in Section V.B.4, depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.

9. Individualized Assessment

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison; ¹²²
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct; ¹²³
• Rehabilitation efforts, e.g., education/training; ¹²⁴
• Employment or character references and any other information regarding fitness for the particular position;¹²⁵ and
• Whether the individual is bonded under a federal, state, or local bonding program.¹²⁶

If the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.

C. Less Discriminatory Alternatives

If an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but that the employer refused to adopt.¹²⁸

VI. Positions Subject to Federal Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct

In some industries, employers are subject to federal statutory and/or regulatory requirements that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations. Compliance with federal laws and/or regulations is a defense to a charge of discrimination. However, the EEOC will continue to coordinate with other federal departments and agencies with the goal of maximizing federal regulatory consistency with respect to the use of criminal history information in employment decisions.¹²⁹

A. Hiring in Certain Industries

Federal laws and regulations govern the employment of individuals with specific convictions in certain industries or positions in both the private and public sectors. For example, federal law excludes an individual who was convicted in the previous ten years of specified crimes from working as a security screener or otherwise having unescorted access to the secure areas of an airport.¹³⁰ There are equivalent requirements for federal law enforcement officers,¹³¹ child care workers in federal agencies or facilities,¹³² bank employees, ¹³³ and port workers,¹³⁴ among other positions.¹³⁵ Title VII does not preempt these federally imposed restrictions. However, if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis.

B. Obtaining Occupational Licenses

Title VII also does not preempt federal statutes and regulations that govern eligibility for occupational licenses and registrations. These restrictions cover diverse sectors of the economy including the transportation industry,¹³⁶ the financial industry,¹³⁷ and import/export activities,¹³⁸ among others.¹³⁹

C. Waiving or Appealing Federally Imposed Occupational Restrictions

Several federal statutes and regulations provide a mechanism for employers or individuals to appeal or apply for waivers of federally imposed occupational restrictions. For example, unless a bank receives prior written consent from the Federal Deposit Insurance Corporation (FDIC), an individual convicted of a criminal offense involving dishonesty, breach of trust, money laundering, or another financially related crime may not work in, own, or control “an insured depository institution” (e.g., bank) for ten years under the Federal Deposit Insurance Act.¹⁴⁰ To obtain such FDIC consent, the insured institution must file an application for a waiver on behalf of the particular individual.¹⁴¹ Alternatively, if the insured institution does not apply for the waiver on the individual’s behalf, the individual may file a request directly with the FDIC for a waiver of the institution filing requirement, demonstrating “substantial good cause” to grant the waiver.¹⁴² If the FDIC grants the individual’s waiver request, the individual can then file an application directly with the FDIC for consent to work for the insured institution in question.¹⁴³ Once the institution, or the individual, submits the application, the FDIC’s criminal record waiver review process requires consideration of mitigating factors that are consistent with Title VII, including evidence of rehabilitation, and the nature and circumstances of the crime.¹⁴⁴

Additionally, port workers who are denied the Transportation Workers Identification Credential (TWIC) based on their conviction record may seek a waiver for certain permanently disqualifying offenses or interim disqualifying offenses, and also may file an individualized appeal from the Transportation Security Administration’s initial determination of threat assessment based on the conviction.¹⁴⁵ The Maritime Transportation Security Act, which requires all port workers to undergo a criminal background check to obtain a TWIC,¹⁴⁶ provides that individuals with convictions for offenses such as espionage, treason, murder, and a federal crime of terrorism are permanently disqualified from obtaining credentials, but those with convictions for firearms violations and distribution of controlled substances may be temporarily disqualified.¹⁴⁷ Most offenses related to dishonesty are only temporarily disqualifying.¹⁴⁸

While Title VII does not mandate that an employer seek such waivers, where an employer does seek waivers it must do so in a nondiscriminatory manner.

D. Security Clearances

The existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal government contractors.¹⁵¹ A federal security clearance is used to ensure employees’ trustworthiness, reliability, and loyalty before providing them with access to sensitive national security information.¹⁵² Under Title VII’s national security exception, it is not unlawful for an employer to “fail or refuse to hire and employ” an individual because “such individual has not fulfilled or has ceased to fulfill” the federal security requirements.¹⁵³ This exception focuses on whether the position in question is, in fact, subject to national security requirements that are imposed by federal statute or Executive Order, and whether the adverse employment action actually resulted from the denial or revocation of a security clearance.¹⁵⁴ Procedural requirements related to security clearances must be followed without regard to an individual’s race, color, religion, sex, or national origin.¹⁵⁵

E. Working for the Federal Government

Title VII provides that, with limited coverage exceptions, “[a]ll personnel actions affecting employees or applicants for employment . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.”¹⁵⁶ The principles discussed above in this Guidance apply in the federal employment context. In most circumstances, individuals with criminal records are not automatically barred from working for the federal government.¹⁵⁷ However, the federal government imposes criminal record restrictions on its workforce through “suitability” requirements for certain positions.¹⁵⁸ The federal government’s Office of Personnel Management (OPM) defines suitability as “determinations based on a person’s character or conduct that may have an impact on the integrity or efficiency of the service.”¹⁵⁹ Under OPM’s rules, agencies may bar individuals from federal employment for up to three years if they are found unsuitable based on criminal or dishonest conduct, among other factors.¹⁶⁰ OPM gives federal agencies the discretion to consider relevant mitigating criteria when deciding whether an individual is suitable for a federal position.¹⁶¹ These mitigating criteria, which are consistent with the three Green factors and also provide an individualized assessment of the applicant’s background, allow consideration of: (1) the nature of the position for which the person is applying or in which the person is employed; (2) the nature and seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the conduct; (5) the age of the person involved at the time of the conduct; (6) contributing societal conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation.¹⁶² In general, OPM requires federal agencies and departments to consider hiring an individual with a criminal record if he is the best candidate for the position in question and can comply with relevant job requirements.¹⁶³ The EEOC continues to coordinate with OPM to achieve employer best practices in the federal sector.¹⁶⁴

VII. Positions Subject to State and Local Prohibitions or Restrictions on Individuals with Records of Certain Criminal Conduct

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct.¹⁶⁵ Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.¹⁶⁶ Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.¹⁶⁷

VIII. Employer Best Practices

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 decisionmakers 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 decisionmakers 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.

Approved by the Commission:

/s/
_____________________________
Chair Jacqueline A. Berrien

4/25/2010
_____________
Date

ENDNOTES

“Forensic Testimonial Evidence Recovery – The FTER Method” is described as the art and science of the interview.  This is Brandon’s second investigative book; his first is “Uncovering Reasonable Doubt:  The Component Method.”  Although it is not necessary to have studied and read the first book for the benefit of the FTER Method, it is highly recommended as the two complement each other.  The two are based on the same fundamental evidentiary issues necessary for criminal defense, justifying about 1/3 of this book devoted to those concepts.

The book opens with reminding the reader that as investigators, we are truth seekers as an ultimate goal.  Achieving that goal, through the investigative process, often relies greatly on the skills of the investigator as an interviewer.  The investigator pursues evidence, truth and facts.  This book consists of 13 chapters that progressively and logically follow a series of informative steps to an in-depth explanation, study and application of the FTER Method.  This book was written for all investigators – from the novice to the experienced.  Those areas for the novice remind the experienced, and those written for the experienced prepare the novice.  This is done through three basic areas of the book – evidence and fundamental concepts, application of the concepts, and advanced techniques.

Brandon takes the investigator through the understanding of evidence, fact finding and recovery of evidence.  This is a process and it is important to understand what evidence is and how it is admitted as evidence by the court.  Knowing this process is fundamental to being able to investigate and conduct interviews, that successfully elicit evidentiary information.  The FTER Method takes the evidentiary process further in defining testimonial evidence.  As pointed out, testimonial evidence is often forgotten or overlooked, which is a detriment to the investigative process.  The successful investigator knows, or will learn, the value of testimonial evidence and the interview methodologies necessary to conduct and complete successful forensic interviews.

The novice is briefly introduced to The Component Method as part of the fluid and dynamic investigative process.  Having a defined and consistent investigative methodology is necessary to assuring that all investigations leave no stone unturned – this book demonstrates the interview skills necessary, and how to apply those skills.  Leaders of the investigative profession may have different methodologies, but they all share the same purpose and fundamentals.  That further makes this book a practical adaptation to all manners of investigations and methodologies.  This is where the challenge of the book and FTER method begins.  The reader is challenged to learn, adapt and apply the concepts – including with practical mini-tests throughout each chapter.

In the process of interviewing, the investigator is an astute observer making inquiries to assess the facts leading to the truth.  Brandon clearly defines the history and purpose of the interview, and its application to the law and judicial process.  This is what begins to define the forensic interview.  He defines the personal and professional influences, personal perspectives and professional perspectives experienced by the investigator.  The understanding of the influences and perspectives as they relate to the interview also guide the techniques used.

Brandon details how to maneuver through these influences in the interview preparation and actual interview process.  The job of the investigator is professional, and therefore only considerations of professional, legal and ethical exist; we must set aside any personal morality.

Is the interview an art or science?  Brandon reminds us that it is both, and subject to those personal and professional influences.  However, because interviews are fluid and dynamic, there is no method of scientific testing or validation.  He further reminds us of the difference between the interview and interrogation; including their purpose, application and what defines them legally.  This book and the concepts of FTER aid the investigator in avoiding confrontational and accusatory interviews.

Understanding that the interview is as much art as science is the premise of this book.  The interview is to obtain evidence (Recovery) in the adversarial judicial system – Forensic application.  Interviews are Testimonial.  Therefore, Forensic Testimonial Evidence Recovery.  This is a strong concept, that when appropriately applied, is a powerful technique.  When applied consistently as part of an overall investigative methodology, it strengthens any criminal defense investigation and strategy.  Combined, the concepts of Brandon’s Component Method and FTER Method will Uncover Reasonable Doubt.

Critical thinking and deductive reasoning are vital to the investigator and the evidence recovery process – including the forensic interview.  As fact finders – truth seekers – this is the underlying purpose of the interview.  Without the interview, a critical component of the investigative process, and related evidence, is lost.  This process begins with the review of the provided discovery, other investigative information and concluding with truth assessment.  To fully apply these investigative principles the investigator must understand the moral and malicious anatomy of the lie – and how the same applies to why a person would tell the truth.  Is it to spare a person’s feelings or avoid punishment?  Perhaps to see someone punished for an unrelated event, retribution?  Brandon presents various scenarios of applying the FTER Method to the concepts of assessing the truth.  Brandon details this importance by presenting this decades old tried and true methodology.  This is from review to question preparation, and then the forensic interview stage of evidence recovery.

It is important to pay close attention to how Brandon describes, demonstrates and imparts the application of this FTER Method before continuing the book and learning process.  The basic interview techniques are necessary to conduct effective fact-finding and truth verification interviews.  He takes it to the next level for the experienced investigator in the stages of the advanced interviewing techniques.  In one book Brandon covers the fundamentals and foundations, as well as the techniques and application, with the opportunity for the investigator to learn and apply advanced skills.  The advanced skills include visual imagery, Kinesics techniques, and how the basic interview is further assessed and advanced using these techniques.

One key task that Brandon reminds the investigator to not, at any cost or purpose, skip or overlook is the interview of the defendant.  It is simply not possible to conduct any investigation or develop any legal strategy without the investigator conducting an interview – separate from any intake interview the attorney may have had.  Brandon explains how the defendant interview is a foundation to the remainder of the investigative and testimonial evidence recovery process.  This empirical information is vital to demonstrating reasonable doubt to any element of any charge presented against the defendant.

In 13 chapters and a summary, renowned and respected Brandon Perron, CCDI, takes the criminal defense investigator down a road that is not well traveled but should be.  He maps out the concepts of the FTER Method, demonstrating and imparting the art and science of the forensic interview and related testimonial evidence recovery.

© Dean A. Beers and Associates in Forensic Investigations, LLC – April 2012.  May be reprinted with permission and source acknowledgment.  Contact beersda@Forensic-Investigators.com

Dean A. Beers, CLI, CCDI is a Certified Legal Investigator and Certified Criminal Defense Investigator.  He is a published author and has lectured extensively and authored multiple articles, peer-reviewed white papers, including Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases, released by CRC Press in February 2011, and previously Professional Investigations:  Individual Locates, Backgrounds and Assets & Liabilities.

Mr. Beers a member and Forensic Investigations Advisor of the Criminal Defense Investigation Training Council.

He began his investigative career in 1987 and operates Associates in Forensic Investigations LLC, with his wife, Karen, also a CCDI.  They have two daughters, a granddaughter and identical twin grandsons.

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It’s best to get your web site and logo created by a professional company unless you’re particularly talented in that area. Although you might be able to save some money initially by doing it yourself, the revenue lost by not having a professional web site and logo make it an unattractive trade-off. There are a lot of very well priced companies out there that will be able to create a clean, professional logo and web site that will give you a strong brand presence as a private investigator.

Showing You Are an Authority in Private Investigation

Your web site is the place where you can show your potential clients that you’re an authority in the field of private investigation and not just another company providing a service. The best way to give the impression you’re an authority is by providing a lot of useful tips and advice to your potential clients. You can write about how to best assess a potential private investigator, what to look for when hiring a private investigator and general advice that would be helpful to anyone looking for a local private investigator.

It might seem unusual to do this on your company site, but what you’re actually doing is setting yourself up apart from the other private investigation companies by showing that you know your business and giving the impression that you genuinely care about your clients and want to offer them useful advice, even if they don’t actually use your services.

They, however, are far more likely to use the service of the company that they trust to be giving good advice rather than taking your advice and using someone else. Marketing is all about psychology and people reading advice about how to find a private investigator on your own site will only see your company as an authority in the field and one that actually cares about giving good advice to people.

Creating a blog on your company site where you can regularly write about topics in private investigation will give you the opportunity to set yourself up perfectly as a strong authority and gain a lot of potential clients from people who are searching for advice on how to find the best private investigator, or searching for general information related to private investigation.

Building an Email List

A great way to build and retain a list of potential customers on your web site is to build an email list that you can regularly communicate with. You can put together various guides and tips and offer them to people who subscribe to your email list and then keep your list updated on a regular basis and offer them discounts or special offers when you’re in need of extra business.

Social Media

You can also setup a Facebook page and Twitter feed that you can encourage people to like and join which will enable you to keep in touch with your potential clients and when you create new articles for your blog you can post them to your Twitter feed and Facebook page for people to read.

Social media allows you to create and maintain a strong positive brand image which contributes towards the perception you want to create in your potential clients’ eyes that you’re an authority in the area of local private investigation. Having an active social media profile is one of the key components involved in creating a successful online brand image and it’s where you’re able to separate yourself from your competition by showing what your company is about and what you can offer that’s better than your competitors.

This article is from David Veibl, guest blogger on many different topics ranging from marketing to SEO and more. This time he wrote for Beacon Investigative Solutions, a nationwide Private Investigation company in the USA, specializing in asset search and corporate investigations.

1)  Dictionary mining

This method is used by spam bots to guess email addresses, but it can be a valuable technique for online investigation as well.

Subjects will often use the same nicknames for their emails as they do for forums and blogs. So if the person of interest is sweetsparkles02 chances are the person’s email is sweetsparkels02@hotmail.com. An investigator can try sending a test message to that email and wait for a bounce back. If ‘delivery-failure bounce back message’ message is not sent back it means that sweetsparkels02@hotmail.com is real email address. Some hackers try to gain access to those emails by selecting “forgot password” link and guessing the secret question.

Discovering what Aliases a person uses can be done by searching for the person’s name, for example places such as Twitter will show the username associated with the person’s real name. Other tools for checking where the username appears are http://socialmention.com/ and http://checkusernames.com/

2) Reverse Image Tracking through Exif Data/Tineye

Armed with a name it is possible to find web-sites a person visits. Once such a site is discovered it is possible to perform a reverse lookup on the images to A) Uncover additional sites visited by the target B) Discover a person’s location.

A) Profile picture can be used to discover other sites visited by the target by checking which other sites have the same profile image. Web-sites like tineye.com, show all other sites with the same image. This can be particularly revealing for catching cheating spouses which post the same profile picture across multiple dating sites.

B) Smartphones often Geotag pictures with GPS coordinates, which means it’s possible to uncover the location of where a picture was taken by looking inside its EXIF data. Many sites including Facebook delete this information, but sites like Twitter or Photobucket preserve it.

3) Picture fishing

Another way to get pictures of a person is by asking. Fishing out pictures can be done by means of a fictitious dating profile. To get the most recent picture one needs to ask the subject to hold a spoon in order to prove that their profile picture is a recent one. The picture sent by the target may reveal GPS coordinates in the EXIF data.

4) File search

File search can be very effective. There is a special Google search operator which shows files stored on uncovered servers. Using this method it’s possible to discover files belonging to a person, like a CV.

The search is done by typing the following command in Google.com: intitle:”index of” “parent directory” john doe (John Doe should be replaced with subject’s name or alias).

The above search format is known as “Advanced Google Search Operator”.

5) Google Alerts

Setting up a Google alerts on the subject’s name and/or alias (google.com/alerts) is done to get up to date notifications from Google when the name comes up somewhere online.

This is like employing Google to stay on guard for all new mentions of the person’s name/alias. As soon as Google discovers the name online it sends a notification.

6) Search within a site

Oftentimes a person will hang out on certain web-sites. Unfortunately many sites (especially blogs) do not have a built-in “user search” function that shows all pages where the subject has interacted. (left a comment, created a profile etc.)

In that case it’s possible to do the following search in Google site:doman.com John Doe ,while replacing the domain.com and John Doe with name of the site and subject’s name/nickname. This will show all comments made by the subject on a given site, example of a query would be site: pursuitmag.com ”chris says:”

This can be useful for building target’s psychological profile. Oftentimes people mention personal details in comments such as the city they’re in and sites they attend. This a good source of additional leads and a chance to apply other steps described above.

About the Author:

Robert Sinclair is an online investigation enthusiast and chief-editor of http://whycall.me

“The legal environment is so radically different in France that the job of private investigators here is almost not the same as in the United States,” says Arnaud Pelletier, founder of Agence Leprivé, an investigations agency in the greater Paris region. France has one of Europe’s most stringent privacy laws and tight governmental oversight on the small corps of active, licensed private detectives (estimated at less than 1,000, according to the largest French P.I. Union, S.N.A.R.P.). French investigative pros are quick to tell you that they have to know the law on their fingertips, at a level of subtlety difficult to grasp for first-time foreign partners. “Our clients from overseas are always surprised by the vast quantity of actions that are illegal in France,” says Jean-Emmanuel Derny, of Roche Investigations, an agency in Paris who also heads S.N.A.R.P.  “We tell them: well, what you just asked me would be illegal here, but we’ll help you reach your objective legally, in a different way.”

The homeland of Eugène François Vidocq, the nineteenth century former convict turned ground-breaking private investigator, France is in the process of polishing the image of its private investigators, known under the acronym ARP, for “Agent de Recherche Privée” (Private Research Agents). ARPs are submitted to a strict, nationwide licensing system with special bridges to former Law Enforcement. Attorneys are barred from conducting investigations, thus have to hire P.I.s for their investigative needs. But unlike in the U.S., French P.I.s rarely take part in criminal investigations. By law, they can’t investigate for a party during an ongoing criminal case, but can be hired in anticipation of legal action, or after a ruling in order to perform a counter-investigation. As a result, most P.I.s work on civil cases and, in the context of a deepening Eurozone crisis, business investigations.

Business investigations are also the baguette and butter of French P.I.s with international clients, who are often interested in background and pre-employment checks.  That’s when private investigator Jean C. Schmitt does some explaining: “American partners ask us for online background checks that can be performed in a matter  of minutes, using proprietary databases or credit reports… But these things don’t even exist in France,” says the founder of France Investigations in Paris, who is also the French Ambassador of the World Association of Detectives. Adds Arnaud Pelletier, who also run Stratég-IE, a business intelligence consultancy firm: “Our American colleagues are always surprised to hear that private detectives in France have no more rights than the average citizen. Our only right is to ask for information from people without divulging our profession and the goal of our mission. Our investigations are based a lot on elicitation.”

And even though more public records are becoming available online, most retrievals require a visit to government agencies, sometimes repeated to get around a stubborn clerk. Given all these factors, a “people locate” starts at 500 Euros (655 USD), according to several professionals. But many other investigations are on par with Western rates, according to Anglo-Saxon professionals who have worked with French agencies in the past: “There were no surprises and costs were reasonable and agreed upon before assigning the case,” says Bob Heales, of R.A. Heales & Associates Ltd in Colorado. Most French P.I.s often charge anywhere between 60 and 90 Euros an hour (a price quote followed by “HT” means “before taxes,” to which foreign-based clients are not submitted), but that can go up to 120 or 180 depending on the location and specialty. When subbing for foreign colleagues, French detectives usually cut a special rate. “We have conducted many cases in France and found [our French partners] very competitively priced,” says New York investigator John Leto, founder of JL & Associates, Ltd.

In some cases, information can be gleaned perhaps more efficiently than in the U.S. Some public records, such as company registration, are chock full of data, as the French government requests the name and marital status of each founder, partner and stakeholder of a company. Pretexting  is often referred to as a “phone scenario,” and can be performed legally within boundaries, with a good success rate as the French are generally rather trusting. As more French citizens resort to legal actions, Jean C. Schmitt senses that the public is getting more accepting of private investigators: “I find that by just introducing myself, I can obtain a lot of information in a straight-forward manner,” he says. Business investigations can be surprisingly revealing, says Jean-Emmanuel Derny, but domestic cases are more of a challenge:  “Our biggest enemies are the movies: people have become more jittery,” says this former engineer, who has worked in the United States. “Criminals are easier to trail. I once shadowed a bandit for weeks and he never paid attention to me.  But in divorce cases, people turn around in mere seconds!”

Leto’s advice for selecting a French investigator: “Using different associations was the best route and continues to be the best route in getting an accountable colleague.” French P.I.s with a good command of English tend to be members of international associations such as The World Association of Detectives (W.A.D) [full disclosure: I am a member] and signal their fluency with a webpage in English. When conducting surveillance in France with local P.I.s, Leto used his Italian to decipher signs: “The street signs were on the buildings, which I found unfamiliar. But breaking bread day in and day out, working in close quarters, seemed to make the transition go smoother.” As in some other countries, “the French do like their meal breaks” he notices. “The funniest thing I find about the French, is that they don’t like to sign anything that is in English,” remarks John Moses of Longmere Consultants in England. He’s had French investigators or bailiffs provide their court statement or certificate of service in French. “Not a problem… We simply get their statement translated.” He describes an otherwise smooth experiences, from serving documents to carrying out land searches, property enquiries and people-locates.

In order to select an agency, the French P.I. Union U.F.E.D.P. recommends 4 steps:

 1. Check if the agency is licensed by the French government.

2. Verify that the agency is insured (ask for “Assurance en Responsabilité Civile Professionnelle”)

3. Check if the agency is registered as a legitimate company (it should have a 9-digit number called n° SIREN)

4. Make sure the agency complies with the law by using encryption technology (“logiciel de chiffrement”) to communicate confidential information to the client.

Alas, checking the credentials of French investigative agencies is not as straightforward as it could be. P.Is are not required to publish their license number (“Agrément Préfecture or préfectoral») on their website, yet many do and even link to a PDF of the document.  Websites usually mention membership to one or several of the French P.I. unions, which are another source to contact. License lookup should soon get easier, says investigator and union leader Jean-Emmanuel Derny. He is also the representative of the P.I. industry in a recently-formed government body called C.N.A.P.S. (Conseil National des Activités Privées de Sécurité – National Council for Private Security Activities). Private security companies, including P.I. agencies, are now depending on C.N.A.P.S. for authorizations, approvals, professional cards, inspections, and the imposing of sanctions. While controversial, seen as restrictive and taxing by some, this new regulatory system will improve the quality of private investigations in France, says Derny: “This will help us weed out the dishonest P.I.s, clean up the profession and elevate it to higher standards.”

Emmanuelle Welch is a French-American private investigator in Washington, DC, founder of French Connection Research. She has had no prior business relationship with any of the professionals interviewed and contacted them through associations and referrals.

SIDEBAR: Is that legal in France?

A quick roundup with Yves Conversano, private detective in Montpellier, owner of A.RI.A. (Agence de Recherches et d’Investigations Aigle) and leading instructor at IFAR, a state-sanctioned training center for private investigators (The following Q&A is for general information only and does not contain legal advice, as situations vary with many possible circumstances.)

Is running a surveillance on an employee legal in France?

Legal, under certain conditions, if the subject has signed an agreement allowing this practice at the start of employment. Surveillance is only authorized during the subject’s working hours: for instance, the lunch break is considered private.

Surveillance on a spouse?

Legal, as long as the couple lives under the same roof. There are restrictions on unmarried couples. But to be clear, you can’t put an internet date or someone you met at a night-club under surveillance.

Photograph someone in their home, from  a public spot?

It’s illegal to take photos on private property. You can’t photograph a subject in his front yard, inside his car. But pictures can be taken in public places and can be used in court for insurance investigations and in civil cases, when required.

Put GPS tracker under a vehicle? 

If the client is the owner of the vehicle, you can track it. Otherwise, it will be illegal.

Dumpster diving, when the trash is outside on a public sidewalk?

It is legal to retrieve evidence from the trash when it is in mixed in the truck. But if it is still in a private container, even on a public sidewalk, the trash is considered on private premises. If you are convinced that you will find evidence on private property, you have to ask an authorization to dumpster-dive from a judge.

In a nutshell?

It’s never that simple, but in short: As soon as you  get near the private sphere, you usually need judicial authorization. It’s easy to make what I call a “judicial-technical mistake.” That’s why French P.I.s need to be intimately familiar with the law.

About the Author:

Emmanuelle Welch  is a French-American licensed Private Investigator in Washington, DC.  She specializes in bilingual investigations with her agency, French Connection Research.

She has had no prior business relationship with any of the professionals interviewed and contacted them through associations and referrals.

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