Thursday, August 8, 2019

F.C.R.A. 7 Year Rule and Criminal Justice


     I believe in Oklahoma we should be pro-active in not only re-integration, but what happens down the road. Recently H.B. 1373 was passed which loosened the restrictions of ex-offenders in the ability to obtain occupational licenses, which is evidence we seem to be headed in the right direction. Legislators, newly released inmates, self-employed persons, or ex-offenders with no need to work do not understand what happens when you try change jobs 3, 5, 7, 10 years down the road. It is not so simple The 7 year rule if made law would not harm the public. It would be an insurance plan, in this digital age, access to digital information, criminal and otherwise will not be a barrier 7 years down the road. Barriers to employment will lead to Recidivism if a person feels like they have no options. Of course we would make exceptions to the rule to guarantee public safety. 

     The 7 Year Rule:

  1. CRAs may not report arrests or other adverse information (other than convictions of crimes) which are more than seven years old, provided that the report does not concern employment of an individual who has an annual salary that is $75,000 or more.1 15 U.S.C. §§ 1681c(a)(5), 1681c(b)(3). 
  2. A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the CRA must maintain strict procedures to insure that the information it reports is complete and up to date. 15 U.S.C. §1681k. 
For many years, the seven year limit also applied to reporting of convictions. However, this seven year limit was eliminated by Congress in the Consumer Reporting Employment Clarification Act of 1998, 

     All 50 states must comply with this rule in terms of 3rd party agency s who do employment background checks.  Some states go even further to mirror this rule such as TEXAS. In Texas a Conviction can only be reported back for 7 years, based on the Disposition date. Non-Convictions can only be reported back 7 years, based on the arrest date. Texas also includes a SALARY EXEMPTION, if the applicants salary is expected to be $75,000 or more then all convictions can be reported back to the age of 18. It is important to note this only applies to Consumer Reporting Agencies. 

      I know many people say they need this information, it is their right to have an ex offenders record, it is for the public safety, this type of person may do this again, and many other reasons. I wonder how they would feel if I was to ask them about an eviction 15 years ago, or the credit card they defaulted on 9 years back, what happened when their house was foreclosed on, why they couldn't pay that medical bill when their wife was dying 12 years ago, why they had to get a protective order against their husband, or tell them it was not Christian to marry more than once all based on records searches. However most these things past 7 years old will not appear on a Consumer Report after 7 years. These are all things that are none of my damn business. The public has O.S.C.N they do not need an online O.S.B.I CHIRP tool. We currently have Citizens who think "Forcible Entry and Detainer" means the police served a search warrant and the person was detained. The only person that is going to be harmed is a nosy neighbor. REMEMBER THIS RULE ONLY APPLIES TO CONSUMER REPORTING AGENCIES (I myself think it should be the rule should be law) of course with exceptions for Violent/Sex Offenses, true threats to Public Safety. The simple truth is if you have not committed a crime in 7 years, there will be nothing for anyone to worry about. It would give people who cannot afford expungement, a chance for a clean slate, just like the person who files Bankruptcy. 

Final Thought-  O.S.B.I. - Certainly appears to be a Consumer Report Agency by definition. However, I am sure there is a legal explanation. Everyone be sure to check out CHIRP you can set up a billing account for your business, obtain criminal records, and make your employment decisions from there. Just remember the O.S.B.I. is not a Consumer or Credit reporting Agency. (See Definition Below)

Definition of Consumer Reporting Agency

Oklahoma State Bureau of Investigation Website

Chirp Information 

EEOC Guidance Link (Best Employment Practices)

Shad Hagan 

Tuesday, August 6, 2019

Oklahoma OSBI Background Check Tool


      The Oklahoma State Bureau of Investigation has made an online background check tool available to the public. Oklahoma has the highest incarceration rate in the Nation, we are #1. This online tool will only make it more difficult for ex-offenders to obtain employment or only have entry level or blue collar employment options available to them. 

      Ex-offenders  already face many challenges to employment in Oklahoma. With more access readily available to anyone, the struggle to obtain employment has only increased over the last 10 years for "Felons". I have faced these challenges myself. With a Forgery Conviction and Possession of a Counterfeit security I have held employment as a Legal assistant, Restaurant General Manager, and Assistant General Manager of a Hotel. I have been out a decade and the struggle has become substantially harder. Many people believe the passage of time, work experience since conviction, what you have subsequently done with your life, and community involvement make a difference.  It simply is not true and as time goes on and digital access to information, the problem becomes worse. 

     The state of Oklahoma already had OSCN which was bad enough. Lay people researching people by name, misreading Judicial events, or finding the wrong individual completely. FD,ML, CPC, SC, CF, CM, PO if you are baffled by these terms or think "FORCIBLE ENTRY AND DETAINER" means they kicked the door down with a warrant to detain someone. then you should not be evaluating someones Criminal history on OSCN. Most employers used 3rd party services to do background checks and the 3rd party would omit information that was outside legal parameters for employment under the FCRA. 

    The OSBI not only has conviction records, but the agency holds arrest records as well.  If someone was arrested and not convicted, the public does not need that information. Everyone is supposed to be "Innocent until proven Guilty". People are now convicted on Social Media, by the public at large and by the media before any Trial or Evidence is presented all subsequent to arrest. If your conviction is deferred and then expunged in court, the arrest record will still be there. Also for many expungements the conviction record will still be in the database of the OSBI. Wouldn't that be a surprise in an job interview.  Do you think you would have the job by the time it was sorted out? 

     However, the fact is the real change will not happen until legislators will sit down and talk to someone like me. I am truly happy for the newly released inmate, but they do not have a frame of reference for challenges that come from being out a decade. It is not rocket science to figure this problem out, but we don't need the politicians consulting with a campaign strategist on what to do. Politicians will have to seek advice from Criminologists and real people affected.

Link to OSBI article FOX23 News

OSBI online tool Article FOX 23

Shad Hagan