State and Federal Court Searches: Removal vs. Remand

The U.S. has a dual court system — state courts and federal courts. State courts are established by state law and have broad jurisdiction, which means they handle many types of cases. Federal courts are established under the U.S. Constitution and have a limited jurisdiction, typically limited to cases involving the Constitution and laws passed by Congress.

In some cases, the parties may disagree about whether the case should be heard in state or federal court. When this occurs, your court searches may locate state cases that have been “removed to federal court” or federal cases that have been “remanded back to state court” – and sometimes both procedures will happen to the same case.

“Removal” is when a defendant takes a case that was filed by the plaintiff in state court and then brings it to federal court. A defendant can remove a case from state court to federal court if the case originally could have been brought in federal court. The plaintiff can challenge the removal to federal court and, if the challenge is successful, the federal court will “remand” the case back to state court.

July 12th, 2022|Compliance Corner|

Expungement of Criminal Convictions – California Style

Some states allow a defendant convicted of a crime to apply for a court order limiting public access to the conviction record or to restore rights and remove disabilities caused by the conviction. This type of order is commonly referred to as an expungement; however, the qualifications for obtaining an expungement and the effect of the expungement vary among the states that allow expungements.

California has an expungement procedure set forth in Penal Code 1203.4. If a defendant meets the qualification of Penal Code 1203.4, the court will allow the defendant to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. The defendant is also relieved from many of the negative consequences of a criminal conviction.

When reviewing California criminal records showing a conviction, it is important to note if there is also a reference to a Penal Code 1203.4 dismissal because this can impact whether the record is reportable in a background check for a California employer. For example, California law does not allow the reporting of criminal records that result in a non-conviction in employment-purpose reports. Even though the record shows a conviction, the Penal Code 1203.4 dismissal effectively means the conviction never happened.

The reference to the code section will typically be found on the case docket, dated a year or so after the conviction date.

January 26th, 2022|Compliance Corner|

Decoding Criminal Case Dispositions

A “disposition” is the final outcome of a case, regardless of what it is called. Here is a list of typical criminal case dispositions.

Guilty or Conviction: This is the worst possible disposition if you are the defendant. It means that the case was heard and decided against you. With a conviction, the court will impose a sentence that may include jail time, probation, and paying a fine and court fees.

Not Guilty: The case actually proceeds to a trial, where a jury (or a judge in certain types of cases) decides that the evidence against the defendant was insufficient for a conviction. It does not mean the defendant was innocent – just that the case was heard and decided in the defendant’s favor.

Dismissal: A dismissal is entered when the court determines that the case should not move forward for some reason. There are many reasons for dismissals. For instance, there can be procedural errors, a lack of proper jurisdiction over the type of case, or the prosecutor decides to dismiss the charges (see below).

Nolle Prosequi or Nolle Prosse: A Latin phrase meaning “no more prosecution.” This is another way of saying that a case is dismissed by the prosecutor. This approach is often used when a defendant may agree to plead guilty to a lesser offense that guarantees the prosecution a conviction for a related offense, in exchange for the prosecutor “dismissing” the more serious charge.

January 12th, 2022|Compliance Corner|

The FCRA and Employer’s Obligations

In recent years, negligent hiring and retention lawsuits have seen a dramatic rise, with settlement payouts averaging over a million dollars. These cases are predicated on the theory that an employer may be held liable for its negligence in placing a person with certain known propensities for criminal or other unfit behavior in an employment position where the individual poses a threat to others. The most common defense against negligent hiring or retention actions is based on foreseeability, which is often determined through a background investigation. Some courts have been more flexible than others in damage awards, but regardless of their stance, the closer the connection between the perpetrator’s dangerous propensity and the actual tortious conduct, the stronger the case against the employer. The law in both negligent hiring and negligent retention also recognizes that a company’s duty to avoid employing dangerous people does not end when an individual is hired–it extends to negligent supervision, negligent training and negligent firing.

Nearly every investigation that touches on employment is covered by the Fair Credit Reporting Act (FCRA), which defines employment (purposes) as “evaluating a consumer for employment, promotion, reassignment or retention as an employee.” If an employer uses a third party screening service to conduct a background investigation of an applicant or employee, that company is considered a “consumer reporting agency” (CRA) under the FCRA. The CRA’s reports, known as consumer reports, may contain information from educational institutions, professional licensing boards, former employers, courts, credit bureaus, references, motor vehicle departments, regulatory entities, media sources, etc.

The FCRA is a complex federal statute that has been significantly revised since 1970. But the Act’s primary mandate remains that CRAs adhere to “reasonable procedures” to protect the confidentiality, accuracy, and relevance of consumer information. Under its Fair Information Practices, the FCRA has established rules concerning personal information that include rights of data quality (to access, dispute and correct), data security, usage limitations, data destruction, disclosures, user consent, and accountability. The FCRA requires the employer/user to affirm to the CRA that it is in compliance (with FCRA) and has enacted the following directives prior to the initiation of a consumer report:

  • Verified that there is a legitimate need for requesting a consumer report
  • Certified that written permission was obtained from the applicant or employee and proper disclosures were provided
  • Stated the reason for requesting a consumer report
  • Certified that the information will be used for employment purposes only.

Before any adverse action is taken based on information in the consumer report, the FCRA obligates the employer to provide the applicant or employee a copy of the report and summary of consumer rights prescribed by the FCRA. And if adverse action is taken, the employer must deliver an “adverse action notice” to the affected individual. Further, the employer must certify that it will not use any information from a consumer report in violation of the applicable federal or state equal opportunity laws and regulations.

The FCRA makes a distinction between a “consumer report” and “investigative consumer report.” Its delineation of a “consumer report” is that it is comprised of verifications of facts about education, employment or other claims made by the applicant, while an “investigative consumer report” is a compilation of information about character, general reputation, personal characteristics, or mode of living through interviews. Thus, an employer who uses investigative consumer reports must comply with the provisions of the FCRA that apply generally to consumer reports as well as the provisions that are specific to investigative consumer reports which include “clearly and accurately” disclosing in writing that it may obtain the aforementioned information. This notice must contain a statement advising the individual of the right to request additional disclosures concerning the nature and scope of the inquiry, along with a written summary of consumer rights. Also, for an investigative consumer report, the disclosure must be made within three days after such report is requested, while in a consumer report, notice must be given before the report is procured.

The FCRA rules also apply when an employer uses a third party to investigate employee misconduct. The employee must be notified “clearly and conspicuously” and authorize, in writing, the undertaking of an investigative consumer report. If the employer disciplines or adversely treats the employee based upon the information in the report, the employer must provide the employee, within 60 days of the adverse decision, the following:

  • Notice of the disciplinary action
  • Name, address and telephone phone number of third party that prepared the report
  • Statement that said third party had no input into the decision to discipline the employee and thus will not provide information about the action taken
  • Notice that the employee is entitled to a free copy of the report and can request that the employer state the reason for the disciplinary action.

The FCRA does not apply to investigations of misconduct conducted by internal personnel or by third parties which do not regularly prepare such reports.

Violations of the FCRA can lead to civil and/or criminal penalties for the CRA and the employer. Civil penalties may carry nominal damages (up to one thousand dollars if no actual damages exist), actual and punitive damages, and attorneys’ fees and costs, if there is “willful noncompliance.” Civil penalties for “negligent noncompliance” are confined to actual damages and attorneys’ fees and costs. Criminal penalties may be imposed when a party knowingly and willfully obtains information from a CRA under false pretenses.

Establishing a relationship with a reputable CRA is one of the best assurances of FCRA compliance. An experienced company can provide guidance not just in the legal process of the FCRA, but also instill trust that it has met its related obligations.

Navigating through civil case jurisdictions in state and federal court systems

Courts within the federal judicial system:

  • Federal district courts are courts of original jurisdiction. District courts, as all federal courts, are also courts of limited subject-matter jurisdiction, meaning that they have the authority to hear cases of a particular type or relating to a specific subject matter, primarily based on federal questions and diversity of parties. The statute for federal question jurisdiction, 28 U.S.C. § 1331, provides that the district courts have subject-matter jurisdiction in all civil actions arising under the Constitution, laws, and treaties of the United States. This jurisdiction is not exclusive; state courts also can hear claims based on federal law. The statute for diversity jurisdiction, 28 U.S.C. § 1332, provides the district courts jurisdiction in actions that meet two requirements: 1) complete diversity – no defendant is a citizen of the same state as any plaintiff, and 2) amount in controversy exceeds $75,000. Federal courts also have removal jurisdiction, which is the authority to try cases removed by defendants from state courts.
  • Circuit courts are courts of appellate jurisdiction as they are authorized only to review decisions on appeal from district courts, certain specialized federal courts or federal administrative agencies. There are thirteen federal circuit courts; twelve for each one of the geographic circuits and one designated as the Federal Circuit which hears appeals from various specialized federal courts. Appeals from many of the administrative agencies are held in the Court of Appeals for the District of Columbia Circuit.
  • United States Supreme Court has original jurisdiction over cases affecting ambassadors and actions in which states are parties. Its appellate jurisdiction over all other types of cases is mostly discretionary.

Courts within the state judicial system

  • Courts of limited subject-matter jurisdiction are authorized to hear specific types of cases, such as small claims, traffic, landlord-tenant, or probate.
  • Courts of original and general jurisdiction hear all cases not exclusively apportioned to courts of limited jurisdiction, such as state claims and federal questions that also could be brought in federal district courts. State courts of general jurisdiction are often at the county level, and vary in their designations, e.g., Superior Court in California, Circuit Court in Virginia, Court of Common Pleas in Ohio and Supreme Court in New York. In some states, courts of general jurisdiction also hold appellate jurisdiction over cases originally tried in courts of limited jurisdiction.
  • Intermediate appellate courts exist only in more populous states. In some jurisdictions, the decision of the intermediate appellate court is final for most fact-bound and “routine” cases, such as domestic relations, and subject to discretionary appeal for constitutional questions.
  • Courts of appellate jurisdiction are variously called the Supreme Court, the Court of Appeals, or, in Massachusetts, the Supreme Judicial Court, and have the authority to change decisions and rulings of lower courts. Depending on the case type and original decision, an appellate review may consist of an entirely new hearing (a trial de novo), a hearing whereby the appellate court gives deference to factual findings of the lower court, or a review of specific legal rulings of the lower court (an appeal on the record.) An appeal from the intermediate appellate court to this higher court is mostly by permission, with the exception of a small number of cases selected by legislatures, such as administrative law actions.

To decide a case, a court must have a combination of subject-matter jurisdiction (defined previously) and either personal jurisdiction (defined as having the power to render a judgment against a particular defendant) or territorial jurisdiction (defined as having the power to render a judgment involving events that occurred within a well-defined territory) along with adequate notice (a requirement that the parties be aware of the legal process affecting their rights, obligations and duties.)

July 28th, 2010|Educational Series|
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