criminal

Arrest record but no charges

Typically, an arrest record will show the date, arresting agency, and the subject’s name (and other identifiers such as DOB and address), without specifying the charge or charges. The reason for this is twofold: (1) until the district attorney (“DA”) files a criminal case, there are no charges; and (2) the charges filed by the DA may be different than the charges on which the arresting officer based the arrest. An “arrest” and “being charged with a crime” are different things (although obviously related). An “arrest” means that a person is taken into custody because they have been accused either by a warrant or by probable cause of committing a crime. Once in custody, the prosecutor’s office will decide whether the person will be charged with a crime. The person will then be given a charging document (complaint or information) that will state what charges they are facing.

A record will never show that an arrest was “dropped.” At best, you can infer that no charges were filed after an arrest if there is no corresponding court case.

December 15th, 2021|Judgment|

New law prohibits North Carolina employers from asking about expunged records

Effective December 1, 2013, employers in North Carolina will not be able to ask job applicants about arrests, criminal charges, or convictions that have been expunge SB 91 prohibits inquiries into expunged matters both on applications and during interviews, and was enacted to clear the public record of any arrest, criminal charge, or conviction that was expunged so that the subject is legally entitled to withhold all information about it from potential employers and others. Notably, employers will still be allowed to ask about arrests, criminal charges, or convictions that have not been expunged and can be found in public records.

October 29th, 2013|Criminal Activity, Employment Decisions, Legislation|

Minnesota becomes the latest state to restrict employment criminal checks

On May 13, 2012, Minnesota became the latest state to restrict criminal background checks for employment purposes with its Criminal Background Check Act (S.F. No. 523). Under the new law, which will go into effect on January 1, 2014, public and private employers may not inquire about, consider or require disclosure of an applicant’s criminal history until after the applicant has been granted an interview or before a conditional offer of employment is made. Since 2009, Minnesota law prohibited only public employers from asking about criminal records on job applications.

According to a report from the National Employment Law Project (the “NELP”) dated in April 2013, six states and 50 localities have adopted “Ban the Box” legislation. And pending before Congress is the federal HR 6220 or “Ban the Box Act” introduced last July by Representative Hansen Clarke (D-MI-13) which similar to these state and local laws, would make it illegal for an employer to ask about criminal history in an interview or on an employment application.

May 31st, 2013|Employment Decisions, Legislation|

State laws restricting the use of criminal records gain momentum

By now, most employers are familiar with the EEOC’s April 2012 updated enforcement guidance on the use of arrest and conviction records for employment decisions under Title VII of the Civil Rights Act of 1964. And related state and local laws are quickly gaining momentum. More than 30 cities and at least 26 states now limit the type of criminal background information that employers can obtain or when they can request it.

Effective July 1, 2012, Indiana will join the roster of the restricting states. Its SB 1033 will, in part, ban certain pre-employment inquiries, limit the types of criminal record information that employers and consumer reporting agencies (CRAs) can obtain from Indiana courts, and restrict criminal history information that CRAs can provide in background reports.

This law also provides that Indiana residents with restricted or sealed criminal records may legally state on an “application for employment or any other document” that they have not been adjudicated, arrested or convicted of the offense specified in these records. Covered employers (the term “employer” is not defined) will be prohibited from asking an “employee, contract employee, or applicant” about such records.

Limiting the scope that can be included in a background report, the law further prohibits courts from disclosing information pertaining to alleged infractions where the individual:

is not prosecuted or if the action is dismissed;
is adjudged not to have committed the infraction;
is adjudged to have committed the infraction and the adjudication is vacated; or
was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.

Criminal history providers, such as CRAs, that obtain criminal history information from the state may only furnish information pertaining to criminal convictions, and are prohibited from including the following in background reports:

an infraction, an arrest or a charge that did not result in a conviction;
a record that has been expunged;
a record indicating a conviction of a Class D felony if the Class D felony conviction has been entered as or converted to a Class A misdemeanor conviction; and
a record that the criminal history provider knows is inaccurate.

Among other significant mandates, criminal history information obtained from the state by CRAs may not include any Indiana criminal record information in an assembled report unless the CRA updates the information to reflect changes to the official record occurring 60 days or more before the date the criminal history report is delivered.

January 7th, 2013|Employment Decisions|

Diploma mill ordered to pay $22.7 million to 30,000 scam victims

On August 31, 2012, Belford High School, Belford University and several of their co-conspirators were ordered to pay $22.7 million to a class of more than 30,000 U.S. residents who were duped into purchasing fake high school diplomas from Belford. The defendants were also ordered to forfeit the websites used to perpetrate the scam, including www.belfordhighscool.com, www.belfordhighschool.org, www.belforduniversity.org, and www.belforduniversity.com.

The lawsuit, filed on November 5, 2009, charged that Belford High School is an Internet scam that defrauded students of their money by offering them a supposedly “valid” and “accredited” high school diploma. As affirmed by the judgment, the school is a fake and the diplomas are not valid. The lawsuit also alleged that the two accrediting agencies by which Belford claimed to be accredited – International Accreditation Agency for Online Universities and the Universal Council for Online Education Accreditation – are not legitimate accrediting agencies.

Notably, we came across Belford University in 2010 when a bachelor’s degree from the “school” was listed on an employment application by a candidate for a professional level position with one of our clients. Click here to read the 2010 blog.

December 18th, 2012|Criminal Activity, Fraud, Lawsuit|

“Ban the box” legislation gains momentum

Across the country, municipalities and states are enacting legislation called “ban the box” which generally prohibits employers from asking job candidates about their criminal histories on applications. The legislation also makes it unlawful for a covered employer to take any adverse action against an individual on the basis of an arrest or criminal accusation that did not result in a conviction. The states of California, Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico have enacted some form of the legislation along with more than 26 cities and counties in Illinois, Maryland, Michigan, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Wisconsin and Washington. (A complete list of municipalities that have “banned the box” is posted at
http://www.nelp.org/page/-/SCLP/2010/BantheBoxcurrent.pdf?nocdn=1).

However, except for Hawaii and Massachusetts, the legislation has been limited to public employers, or public employers and vendors and contractors serving public entities. The city of Philadelphia, which is the most recent addition to this growing list, is the first municipality to pass a law that covers private employers with 10 or more employees. Below are some jurisdictional highlights of the enacted legislation:

Hawaii and Massachusetts private and public employers cannot consider felony convictions that are more than 10 years old. And in Massachusetts, employers are not permitted to consider misdemeanor convictions that are more than five years old.
Hawaii and the cities of Chicago, Hartford, and Cincinnati allow an employer to ask about an applicant’s criminal record only after a conditional offer of employment has been extended.
Chicago, San Francisco, and Boston require a public employer denying employment on the basis of a conviction to justify its decision based on EEOC’s guidelines which include the nature and gravity of the crime, the time that has passed since the conviction, and the relativity of the crime to the position.

Proponents of “ban the box” are confident that the legislation will be a significant factor in lowering recidivism rates, as it will allow applicants to demonstrate their skills and qualifications prior to disclosing criminal histories. And many experts say that such laws will expand beyond the borders of the United States in the very near future.

October 17th, 2011|Employment Decisions, Legislation|

Massachusetts employers cannot ask about criminal history on initial job applications

As of November 4, 2010, Massachusetts employers are prohibited from asking about criminal records on the initial job application, except for positions for which a federal or state law, regulation or accreditation disqualifies an applicant based on a conviction, or if the employer is mandated by a federal or state law or regulation not to employ
individuals who have been convicted of a crime.

The new law also has two provisions that will become effective February 6, 2012. Under the first provision, an employer in possession of criminal record information must disclose that information to the applicant, prior to asking about it. And similar to the requirements of the Fair Credit Reporting Act, if an employer decides not to hire an
applicant in whole or in part because of the criminal record, the employer must provide the applicant with a copy of the record.

The second provision requires employers who conduct five or more criminal background investigations annually to implement and maintain a written criminal record information policy. The policy, at minimum, must specify procedures for (1) notifying applicants of the potential for an adverse decision based on the criminal record, (2) providing
a copy of the criminal record and the written policy to applicants, and (3) dispensing information to applicants about the process for correcting errors on their criminal record.

The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual and $50,000 for a company) for those who request or require an applicant to provide a copy of his/her criminal record except under conditions authorized by law, and prohibits harassment of the subject of the criminal record (punishable by imprisonment of up to one year, or a fine of not more than $5,000.)

November 16th, 2010|Criminal Activity, Educational Series, Employment Decisions, Legislation|

A look into money laundering

In U.S. law, money laundering is the process of engaging in financial transactions to conceal the identity, source, and/or destination of illegally gained money. It is believed that the term “money laundering” originated from the Mafia’s ownership of Laundromats whereby large sums of money were made through illegitimate activities that showed origination from a legitimate-appearing business.

The U.S. Criminal Code contains more than 100 predicate offenses to the crime of money laundering, which include drug trafficking, smuggling, prostitution rings, illegal arms sales, embezzlement, insider trading, bribery, and computer fraud. The Internal Revenue Service (IRS) considers money laundering a “tax evasion in progress.” And when no other crimes could be pinned to Al Capone, the IRS obtained a conviction for tax evasion. Leaving the courthouse, Capone said, “This is preposterous. You can’t tax illegal income!” Had the money laundering statutes been in effect in the 1930s, Capone also would have been charged with this crime. However, since October 1986, with the passage of the Money Laundering Control Act, organized crime members and many others have been convicted of both tax evasion and money laundering.

One of the most notable money laundering cases was settled in March of this year. Wachovia Bank, which is owned by Wells Fargo & Co., reached a $160 million settlement with the Justice Department over allegations that a failure in bank controls enabled drug traffickers to launder drug money by transferring $420 billion from Mexican currency-exchange houses to the bank. Under a deferred-prosecution agreement, Wachovia “admitted failure to identify, detect, and report suspicious transactions in third-party payment processor accounts.”

And money laundering has even reached the Vatican. Media reports from the past week say that the Vatican Bank, along with its chairman Ettore Gotti Tedeschi and director general, Paolo Cipriani, have been targeted for alleged violations of money laundering laws. Italian authorities temporarily froze 23 million euros ($30 million) from an account registered to the Institute for Works of Religion (IOR) a.k.a. the Vatican Bank. The investigation was opened after the Bank of Italy, adhering to anti-money-laundering directives issued by the European Union, alerted officials to two suspicious transfers on September 6, 2010. The Holy See expressed surprise at the allegations.

September 28th, 2010|Criminal Activity, Educational Series|

Why is it important to search criminal records under the company’s name along with its principals?

Under the doctrine of respondeat superior, a corporation may be held criminally liable for the illegal acts of its directors, officers, employees, and agents. The most common criminal cases are filed for regulatory causes, but other charges also may be brought depending on the severity of the crime and the adequacy of the civil and administrative enforcement actions, among many considerations.

On a related note, several months ago, we posted a case study from our files about one of the biggest payroll-tax frauds in U.S. history. The $200 million fraud led to the subject company’s Chapter 11 bankruptcy filing and its subsequent federal indictment. The company’s former CEO, who was considered the mastermind of the fraud, was sentenced to 22 years in prison in 2008. Prosecutors in the case argued that a guilty plea from the company itself also was needed to deter similar crimes by other companies. However, the court ruled that, among other regards, this would lead to unnecessary costs of a trial and damage the legal claims contained in the bankruptcy.

July 2nd, 2010|Bankruptcy, Educational Series|

A career in fraud

A prospective client investigation was ordered on a company and its president, but the preliminary information on the president was enough to reject the subject or any company under his direction from the possible business engagement. Initial court searches uncovered a 2001 criminal misdemeanor conviction for possession of a false identification to be used to defraud. The index did not provide much information and the file was destroyed by the court, so SI’s analyst turned to media sources to dig deeper. Sure enough, one article referenced guilty pleas entered in 2002 by the subject and his business partner for hiring imposters to take the Series 7 securities brokers’ examination for them. Each was sentenced to a year of probation and fined $5,000. Other articles from 2002 reported three civil cases for fraud in locations where the subject appeared to have no residential history, and further disclosed that the subject and his partner had been statutorily disqualified from working for a broker licensed by the National Association of Securities Dealers, ordered to disgorge profits and interest totaling $4,649,125 and each were fined $15,000 in civil penalties in 2006. Articles also linked the subject to a con artist who had admitted to defrauding Jewish organizations and individuals of $80 million during the 1990s. Most recently, the FDIC had executed a written agreement with the subject and (the same) business partner after they allegedly failed to seek FDIC approval before making an investment in an unregistered bank holding company. On the whole, this company president had been engaged in fraudulent behavior for nearly a decade and no amount of legal or regulatory action appeared to change his mode of operation.

March 26th, 2010|Fraud|

This is the development site for Scherzer International and the information may not be accurate. Please visit our production website.

criminal

This is the development site for Scherzer International and the information may not be accurate.
Please visit our production website.