Privileged and Confidential Attorney-Client and Work Product Document BCAP Legal Consultation Worksheet Client Name: Date: Advocate: Name of the employer/company: Position/Title: Check one: First time applicant denied job Rescinded offer Denied promotion Terminated N/A If applying for a new job or a promotion, when did client apply? Did the employer run a background check on client or ask client to submit to a live scan (fingerprinting)? Were client given an offer of employment that was conditioned on passing a background check or live scan? Did the employer get client written permission before running the background check? An employer may not run a background check without first obtaining permission from applicant/employee, except when the report is sought under suspicion of wrongdoing or misconduct. Cal. Civil Code § 1786.16(a)(2)/ 15 U.S.C. § 1681b(b)(2). Was there a box on the job application that client could check to request a copy of client background check? The applicant/employee must be provided an opportunity to request a copy of the report at the time that he or she authorized the employer to run the background check. Cal. Civil Code § 1786.16(b)(1). If client requested a copy of client background check report at the time client applied, did the employer give client a copy? If client request a copy, the employer must provide a copy within 3 business days of receiving the report. Cal. Civil Code § 1786.16(b)(1). Were client denied or terminated from a job after the background check was run? If client were (denied job, had job offer rescinded/denied promotion/terminated), did the employer give client a copy of the background check? BEFORE an adverse action, an employer must provide the following at least 5 days before the adverse action is taken:1) a copy of the report and2) the Federal Trade Commission (FTC) Summary of Rights. 15 U.S.C. § 1681b(b)(3). Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No AFTER an adverse action, an employer must give the subject of the report the name and address of the consumer reporting agency which generated the report. Cal. Civ. Code § 1786.40(a) / 15 U.S.C. § 1681m(a). Does client have a copy of the background check? Check the background check for errors. Make copy of background check as well as any other relevant documents (i.e. minute order from court). Send correction letter via certified mail. Did you advise client about documenting past employment (approximate dates of employment, wages, reason for leaving) and going forward, future efforts to gain employment (keep running list of places where applied, keep emails sent to employers with application materials, keep copies of electronic applications)? 2921 Adeline Street, Berkeley, CA 94703 Phone: (510) 548-4040 Facsimile: (510) 548-2566 Clean Slate Practice Brief Service Intake Form CONFIDENTIAL NAME: (Last Name) (First Name) / TODAY'S DATE: / SSN: (Middle Name) ADDRESS: (Street/Apt #) (City) PHONE: MESSAGE PHONE: BIRTH DATE: AGE: (Zip) Detailed Message OK? GENDER: EMAIL: (State) M F TG TS Yes No Other HOW DID YOU HEAR ABOUT US?: We are required to report anonymous statistical information regarding the clients we serve to our funders. The following information is reported to funders as anonymous statistical information only and is otherwise confidential. ETHNICITY: Hispanic Non-Hispanic PRIMARY LANGUAGE (if not English): RACE: Please check all races that apply. If Hispanic, also select a race. White Amer. Indian or Alaskan Native Asian & White Black or African American (AA) Amer. Indian or Alaskan Native & White Black or AA & White Asian Native Hawaiian/Other Pacific Islander Amer. Indian or Alaskan Native & Black or AA ARE YOU A U.S. CITIZEN? DISABILITY? Yes Yes PERSONAL STATUS: HOUSEHOLD SIZE: ARE YOU REGISTERED TO VOTE IN CALIFORNIA? No Married Divorced Separated NUMBER OF DEPENDENT CHILDREN: Widowed Domestic Partner Are you the head of household? Yes ARE YOU CURRENTLY A VICTIM OF DOMESTIC VIOLENCE OR SEXUAL ASSAULT? MONTHLY No Nature of Disability: No Single Yes TANF (CalWORKs) Child Supp: GA: SDI: Pension: SSDI: SSI: Unemp: Wages: Other: (If other specify source: VA benefits: CURRENT HOUSING: Permanent Non-Permanent (homeless/shelter/transitional) Yes No No None: Food Stamps: Chronically Homeless In seeking assistance in addressing my criminal record, my goals are: Legal Advice and Referral Only--No Representation Conflict of Interest Waiver and Income Certification Unless otherwise stated in a written retainer agreement, the East Bay Community Law Center provides legal information, referrals and advice only, which shall not create a future or continuing relationship with EBCLC or volunteer attorneys staffing our clinics, workshops and intake. Due to the short-term and limited nature of the legal services provided, it is not possible for EBCLC to systematically screen for conflicts of interest as is generally required. I am informed, understand, and waive all unknown conflicts of interest that may arise during the course of limited legal services provided to me at this time. I also hereby certify that, to the best of my knowledge, the above information, including income is true and correct. I understand income information is subject to verification only by authorized HUD and or City officials. Signature FOR OFFICE USE ONLY Client Intake Given at: OAK Is client on probation?: No HHJ Yes EBCLC If yes: Phone Felony Workshop Location: Misdo. Is client 290 registrant?: 44 Yes No Notes: Sent for Alameda County RAP Sent to request police report Sent to check on fines, fees, and rest. Given immigration referrals Sent for DOJ RAP Sent to request BCAP report Advised of BCAP employment rights Informed of voting rights Sent to collect letters of support Sent to homeless court Sent to request employment docs. Out-of-county reentry referrals: Other service referrals: Vol. attorney / student name: Staff attorney name: Vol. attorney / student time: Staff attorney time: Opening Code(s): Closing Code(s): Outcome Code(s): 1-Dismissal P.C. 1203.4/1203.4a 2-Felony reduction P.C. 17(b) 3-Early release from probation P.C. 1203.3 4-Seal and destroy arrest record P.C. 851.8 5-Section 8 termination for criminal record 6-Certification/Licensing denial for criminal record 7-Juvenile record sealing 8-DOJ record request 9-Sealing - Drug diversion P.C. 851.90 10-Certificate of rehabilitation P.C. 4852.01 et.seq 11-Employment issues due to criminal record 12-Erroneous RAP Sheet 13-Erroneous commercial criminal record 14-Out of Country/out of state criminal record 15-DMV issues due to criminal record 16-Penal Code section 290 registration issues 17-Immigration Issues 18-Other(education issues;voting;guns; child custody;warrants;prison visiting, etc.) 19-Eligible for infraction 20-Public benefits issues due to criminal record 21-Education issues due to criminal record 22-Gun rights due to criminal records 23-Prison/jail visitation issues due to criminal record 24-Family law issues due to criminal record 1-Administrative Agency Decision - unfavorable 2-Administrative Agency Decision - favorable 3- Advice and Counsel 4- Brief Service 5- Change in Eligibility Status 6- Client Withdrew; Never Returned 7-Court Decision - favorable 8-Court Decision - unfavorable 9-Insufficient Merit to Proceed 10-Jury Verdict - favorable 11-Jury Verdict - unfavorable 12-Case Dismissed 13-Negotiated Settlement with Litigation 14-Negotiated Settlement without Litigation 15-Other 16-Referred After Legal Assessment 17-Information and Referral 18-Sent Pro Per 1- Obtained desired occupational license/exemption request. 2- Occupational license restored 3- Licensing exemption request license denied. 4- DMV advocacy successful 5- BCAP demand letter successful, client paid 6- BCAP demand letter unsuccessful 7- Referred for outside representation 8- Sent client for RAP sheet 9- Ineligible for Clean Slate services at this time 10-Pro Per petition - Granted 11-Pro Per petition - Denied 12-Pro Per petition - Client did not file 13-DMV advocacy unsuccessful 14-RAP sheet correction advocacy successful 15-RAP sheet correction advocacy unsuccessful 16-Employment advocacy successful 17-Employment advocacy unsuccessful 18-Pardon granted 19-Pardon Denied 20-Client involved in media strategy 21-Client involved in policy work 22-Family law advocacy successful 23-Family law advocacy unsuccessful 24-Section 290 (sex offender) advocacy successful 25-Section 290 (sex offender) advocacy unsuccessful 26-Educational advocacy successful 27-Educational advocacy unsuccessful 28-Housing advocacy successful 29-Housing advocacy unsuccessful 30-Juvenile record advocacy successful 31-Juvenile record advocacy 32-Voter registration successful Date closed: form revised 8/21/12 / / CERTIFICATES OF REHABILITATION (Cal Pen Code § 4852.01 et seq.)—FELONIES Note: A COR will not relieve § 290 registration duty for those required to register following a conviction for the serious sex offenses listed in Cal PC § 290.5(a)(2) F E L O N I E S Yes Was Client ever convicted of any of the following: §§ 288, 288a(c), 286(c), 289(j), or 288.5? Client is ineligible for a COR in any case. Client is possibly eligible to petition the Governor directly for a pardon. No Was Client sentenced to California state prison in this case? Yes No Have the requisite rehab period passed since Client was released from prison? No Was Client convicted of a wobbler felony in this case? Yes Client is currently ineligible unless an early COR serves the interests of justice. See PC § 4852.22 Yes Has Client had any negative contact with law enforcement during the rehab period? No Consider a § 17(b) felony reduction, § 1203.4 relief, and a misdemeanor COR petition. Has this conviction been dismissed per § 1203.4/1203.4a/1203.41? No Yes Yes No Client is currently ineligible unless an early COR serves the interests of justice. See PC § 4852.22 Have all of Client’s other eligible convictions been dismissed per §§ 1203.4/1203.4a/1203.41? No Best practice (not a statutory requirement) is to have all eligible convictions first dismissed per §§ 1203.4/1203.4a/1203.41. Yes Best practice (not a statutory requirement) is to have all eligible convictions first dismissed per §§ 1203.4/1203.4a/1203.41. No Has Client continuously resided in California for the last 5 years? No Yes 5 years of continuous CA residence immediately preceding COR petition required. Client is currently ineligible unless an early COR serves the interests of justice. See PC § 4852.22 No Yes Best practice (not a statutory requirement) is to have all eligible convictions first dismissed per §§ 1203.4/1203.4a/1203.41. Has Client served any time in jail or prison in any case since this conviction was dismissed per § 1203.4? Yes Client is eligible to apply for a COR!3 Yes Client is currently ineligible unless an early COR serves the interests of justice. See PC § 4852.22 5 years of continuous CA residence immediately preceding COR petition required. Client is currently ineligible unless an early COR serves the interests of justice. See PC § 4852.22 Have all of Client’s other eligible convictions been dismissed per §§ 1203.4/1203.4a/1203.41? No Client is ineligible for a COR in this case. Has Client had any negative contact with law enforcement during rehab period? No Has Client continuously resided in California for the last 5 years? Yes Client is eligible to apply for a COR!3 Past administrations have granted very, very few pardons. Governor Brown has granted more. Note: There is a 9 year period of rehabilitation for murder, sabotage, kidnapping, trainwrecking, assault with a deadly weapon by a Lifer, and mayhem; a 10 year period of rehabilitation for § 290 convictions, except for convictions under §§ 311.2(b-d), 311.3, or 311.10, which have a 7 year period of rehabilitation. 3 In almost all cases, a court may not deny COR petition with prejudice. See People v. Lockwood, 66 Cal. App. 4th 222, 228 (1998). Rev. 01/14 2921 Adeline Street, Berkeley, CA 94703 · t 510.548.4040 f 510.548.2566 www.ebclc.org CERTIFICATES OF REHABILITATION (Cal Pen Code § 4852.01 et seq.)—MISDEMEANORS Note: A COR will not relieve § 290 registration duty for those required to register following a conviction for the serious sex offenses listed in Cal PC § 290.5(a)(2) M I S D E M E A N O R S Was Client ever convicted of any of the following: §§ 288, 288a(c), 286(c), 289(j), or 288.5? No Yes Client is ineligible for a COR in any case. Client is possibly eligible to petition the Governor directly for a pardon. Is Client seeking a COR for a misdemeanor sex offense listed in § 290? Yes No Has this conviction been dismissed per § 1203.4? No Yes Client is currently ineligible until conviction is dismissed per § 1203.4. Client is ineligible to apply for a COR in this case. Conviction may be eligible for a § 1203.4/1203.4a dismissal. Have all Client’s other eligible convictions been dismissed per § 1203.4? No Yes Best practice (not a statutory requirement) is to have all eligible convictions first dismissed per §§ 1203.4/1203.4a/1203.41 before petitioning for a COR. Has Client served any time in jail or prison since this conviction was dismissed? Yes No Client is ineligible for a COR in this case. Has Client had any negative contact with law enforcement in the last 10 years? Yes No Client is currently ineligible (10 years of successful rehabilitation required). Has Client continuously resided in California for the last 5 years? No Yes Client is currently ineligible (5 years of continuous CA residence immediately preceding COR petition required). Client is eligible to apply for a COR!4 Recent administrations have granted very, very few pardons. Note: For convictions under §§ 311.2(b-d), 311.3, or 311.10, the requisite rehabilitation period is 7 years. But see People v. Ramirez, 2009 Cal. App. Unpub. LEXIS 9440 (Trial court may grant COR to petitioner, even if petitioner has violated the law during the period of rehabilitation). 4 In almost all cases, a court may not deny COR petition with prejudice. See People v. Lockwood, 66 Cal. App. 4th 222, 228 (1998). Rev. 01/14 2921 Adeline Street, Berkeley, CA 94703 · t 510.548.4040 f 510.548.2566 www.ebclc.org DATE Re: Dispute of consumer report on Client To Whom It May Concern: I represent Client concerning a criminal record check issued by Vendor on December 12, 2011 (copy enclosed). This letter constitutes a dispute of that consumer report. The report indicates that Client’s record contains two drug charges resolved as of February 20, 2009. In fact, those charges had been expunged by court order dated April 14, 2010 (copy enclosed). That order was implemented by the Pennsylvania State Police (PSP) on May 5, 2010 (certification enclosed). As a result of this expungement, Client does not have a criminal record (PSP certification enclosed). We insist that this inaccurate report, and your database, be corrected immediately to reflect the expungement, and that an accurate report be sent to your client. Should there be any questions, please contact me at … Very truly yours, ADVOCATE Enclosures cc: Client The Truth about Voting with a Criminal Record in California I have a felony conviction or juvenile adjudication on my record. Can I still vote? Yes! As long as you are at least 18 years old, a U.S. citizen, out of prison and off felony parole.* Can I vote while I’m on probation? YES NO YES Yes! You can vote even if you are currently on probation, regardless of whether your conviction is for a felony or misdemeanor, or your probation is supervised (felony or formal probation or banked) or unsupervised (court or misdemeanor probation).* Can I vote even if I’ve been to prison in the past? NO YES Yes! As long as you are out of prison and off felony parole now, you are eligible to vote.* NO Can I vote if I am currently in jail? YES Yes! You can vote if you are in jail serving a sentence for a misdemeanor or a felony conviction that did not result in a prison or a Realignment (PC § 1170(h)) sentence. Ask a friend or family member to send you a voter registration form and request an absentee ballot to vote by mail. Use your jail address if you will be in jail on election day; use your home address if you will be released before election day.* I have a pending felony charge. Can I still vote? NO YES Yes! You can vote even if you are currently charged with a felony if you have not been convicted and sentenced to state prison or under Realignment (PC § 1170(h)) at the time of the election. NO Do my civil rights have to be restored after my release from prison or parole before I can vote? YES No! There is nothing you need to do to restore your voting rights once you are off felony parole. Just register or re-register to vote. Go to registertovote.gov NO *Note: If you were convicted of a felony under Realignment (PC § 1170(h)) and are serving that sentence in jail (county prison), or are under mandatory Realignment probation supervision, or are on PostRelease Community Supervision (PRCS), you can vote when your sentence is over. Questions? Call EBCLC’s Clean Slate Practice: 510-548-4040 THE NEXT ELECTION IS ON NOVEMBER 4, 2014 - REGISTER BY OCTOBER 20, 2014 To register, all you need to do is complete a voter registration form and put it in the mail. Or you can register online: REGISTERTOVOTE.CA.GOV EAST BAY COMMUNITY LAW CENTER – CLEAN SLATE PRACTICE t 510.548.4040 f 510.548.2566 www.ebclc.org 2921 Adeline Street, Berkeley, CA 94703 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________ NJ : : CIVIL ACTION Philadelphia, PA 191 : Plaintiff v. : NO. : : BACKGROUND CHECKER : JURY TRIAL DEMANDED : : Defendant _____________________________________ : : : Complaint I. Preliminary Statement 1. This is an action for actual and punitive damages, costs and attorneys fees brought under the Federal Fair Credit Reporting Act, 15 U.S.C. _ 1681 et. seq. 2. Plaintiff, N J, brings this action against Defendant, K (“K”), for violations of the Fair Credit Reporting Act. K provided a background check report on Ms. J to her new employer that included another individual’s criminal record for a drug offense, despite numerous indicators that the conviction was not attributed to the plaintiff. As a result of this erroneous report, Ms. J, who has never been arrested or convicted of a crime, was fired from her job and suffered substantial humiliation, mental anguish and distress. II. Parties 3. Plaintiff N J (“Ms. J”) resides at ____________, Philadelphia, Pennsylvania, 191__. 4. Defendant K Background America, Inc. (“K”), upon information and belief, is a _________ corporation based at _______________________________________________. K is doing business in the Commonwealth of Pennsylvania by providing Pennsylvania employers with background check reports on prospective and current employees. III. Jurisdiction and Venue 5. This court has jurisdiction over this matter based upon 28 U.S.C. _ 1331 in that the dispute involves predominately issues of federal law arising under the Fair Credit Reporting Act 2 (“FCRA”), 15 U.S.C. _ 1681 et. seq. 3 6. Venue is properly laid, pursuant to 28 U.S.C. _ 1391(b), in the judicial district where the claim arose. IV. Factual Allegations 7. In or about August 2005, Ms. J applied for a position as a provider service representative with Independence Blue Cross (“IBC”) in Philadelphia, Pennsylvania. 8. As part of her employment application, Ms. J authorized IBC, by and through Defendant K, to procure a consumer report and/or investigative consumer report on her, which could include her criminal history. To facilitate that background search, Ms. J was asked to provide and provided her full name, a list of any other names she had used, her current and former addresses, her Social Security number, date of birth, and driver’s license number. See, Exhibit 1. 9. Shortly after she completed this application, IBC offered her the position of provider service representative, and she was scheduled to begin her training on September 12, 2005. 10. Ms. J was delighted to obtain what she considered to be a very good job at IBC, which offered her a chance to provide much better for her family. At the time that she applied for the job with IBC, Ms. J was working in a job that paid her only $34.76 per diem. 11. Ms. J reported for training at IBC on September 12, 2005 and experienced no problems with her job until Thursday, September 22, 2005. 12. On or about September 22, 2005, Ms. J was informed that Nancy, a representative from IBC’s Human Resources Department, wanted to see her. Nancy told Ms. J that she has a criminal record and that her job required her to have a clear criminal record. As a result, IBC would not permit Ms. J to continue her training. 13. Ms. J truthfully responded by denying that she has a criminal record. 4 14. Ms. J, in fact, has no criminal record. 15. Ms. J’s protestations that she has no criminal record were unavailing. Nancy told her that if she could prove that she did not have a criminal record, then she could be considered for rehire at IBC. 16. During this discussion between Ms. J and Nancy, a security guard stood watch at the door. At the end, Ms. J asked whether she could return to her desk to gather her personal items. She was told that her desk already had been cleaned out. 17. Ms. J, humiliated and crying, then was escorted out of the building by the security guard, in front of many other individuals and employees of IBC. The security guard watched her until she left the building. 18. Ms. J had proudly told family and friends that she had obtained the job at IBC. She suffered humiliation from having to tell family and friends that she had been fired from the job, especially because she had been fired as a result of false accusations that she had a criminal record. 19. On or about Saturday, September 24, 2005, Ms. J had her first opportunity to see the report of her putative criminal record when it arrived in the mail along with a letter from N. Elise Nocito, Human Resources Representative from IBC. See, Exhibit 2. 20. The criminal record report was a consumer report from K that was requested on September 2, 2005. The report listed a drug offense with an arrest date of May 4, 2005 and a conviction date of July 20, 2005, with a sentence of nine months probation. It also noted that the court record was obtained from the Philadelphia County Court of Common Pleas. 21. The indices and records of the Philadelphia County Court of Common Pleas do not permit searches by the person’s Social Security number. A match between the person being 5 searched and the person who was the subject of a criminal court case is made primarily through name, date of birth and address. 22. The criminal record report prepared by K stated that the court record for the drug offense was found under the name N J with a “similar” date of birth to the N J who was the subject of the search and an address of ______________ Street, in Philadelphia, PA. 23. The report K provided to IBC included inaccurate information regarding Plaintiff Ms. J. 24. The birth date noted in K’s report is not Plaintiff Ms. J’s date of birth. Although the birth date of the N J for whom the record was found was close to that of plaintiff Ms. J, it is not a match. 25. Plaintiff Ms. J has never resided at ______________ Street, the address of record for the N J with a criminal conviction. 26. The same report by K also indicates that a search was performed of Plaintiff Ms. J in the database of the Pennsylvania State Police (“the PSP”) and that no criminal record was found. 27. The PSP maintains the central repository of criminal records for the Commonwealth of Pennsylvania. A conviction in the Court of Common Pleas in Philadelphia is reported to the PSP. It would be expected that a conviction that appears in Philadelphia court records would also be reported when a background check is performed through the PSP. 28. The PSP reports an offense to an individual when two of three criteria – name, date of birth, Social Security number – match. Thus, the criteria for matching individuals in a PSP database check is more reliable than a database check of Philadelphia court records, because the searcher can determine whether the unique Social Security number of the person being searched matches that of the person who was convicted. 6 29. The fact that the PSP database search resulted in a clean record for Plaintiff Ms. J was very strong proof that the Philadelphia County criminal record that K identified is not that of Plaintiff Ms. J. Therefore, the “no record” result of the State Police report means that neither Plaintiff Ms. J’s Social Security number or date of birth match those identifiers of the N J convicted for the drug offense. 30. Given (1) the inconsistencies between the record results from the PSP database and the Philadelphia county court database, and (2) the different date of birth and address for the N J with the drug offense and Plaintiff Ms. J, K either knew or should have known that the criminal record found for N J was for a different person than Plaintiff Ms. J. K, therefore, either knew or had reason to know that the report it provided to IBC contained inaccurate information about Plaintiff Ms. J. 31. The consumer report prepared by K contained “remarks” indicating that the record found in the court of common pleas contained a “similar date of birth,” that the record might not be for the job applicant under investigation, and that the employer should seek confirmation from the applicant. However, these remarks have no relevance, because K did not employ reasonable procedures to insure maximum possible accuracy, given the multiple indicia that the record did not concern Plaintiff Ms. J. Nor did the remarks mitigate the harm suffered by Plaintiff Ms. J as a result of having the other person’s criminal conviction wrongly attributed to her in the first place. 32. K either was aware or should have been aware that its procedures for conducting criminal record searches had resulted in the company issuing consumer reports erroneously linking an individual to the criminal history of another individual. 7 33. A March, 20, 2006, article in People magazine detailed a similar case in which K issued a criminal background report to an employer that erroneously linked a job applicant to an offender with the same name. According to the article, K makes no apologies for how the case was handled. In response to inquiries about that case, K’s general counsel, Jesse N. Bacon, admitted that mismatched criminal records are a problem. He is quoted as taking the position that mix-ups are unfortunately inevitable and saying, “In a former life I was a district attorney, and I used to see it weekly... You get crossed records, or maybe somebody transposed a number or you don’t have a middle initial.” 34. K did not follow reasonable procedures to assure the maximum possible accuracy of the information about Ms. J when it prepared the September, 2005 consumer report about her for IBC. 35. As a result of the inaccuracy in the consumer report K provided to her employer, Ms. J suffered actual damages. Specifically, she was terminated from her job, and she also suffered humiliation, embarrassment, mental anguish and emotional distress. 36. Ms. J had to take steps to clear her own name. She had her fingerprints checked against the Philadelphia Police Department Criminal Records File so that she could satisfy IBC that she has no criminal record. 37. Based on that fingerprint check, on or about November 15, 2005, Ms. J obtained documentation from the Philadelphia Police Department that she does not have a criminal record in Philadelphia. See, Exhibit 3. 38. Ms. J also was required to get an attorney in order to seek reinstatement to her job at IBC. 8 39. After her attorney provide IBC with a copy of the results of the fingerprint check, Ms. J was rehired by IBC on or about December 7, 2005. V. Causes of Action Count One: Violation of the Fair Credit Reporting Act, 15 U.S.C. _ 1681e(b) Failure to Follow Reasonable Procedures to Assure Maximum Possible Accuracy of the Information Concerning Ms. J 40. Plaintiff realleges and incorporates by reference all preceding allegations of law and fact. 41. Ms. J is a “consumer,” as defined by the federal Fair Credit Reporting Act, 15 U.S.C. _ 1681a (c). 42. K is a “consumer reporting agency,” as defined by the federal Fair Credit Reporting Act, 15 U.S.C. _ 1681a (f). 43. The background check report on Ms. J that K provided to IBC in or about September, 2005 is a “consumer report,” as defined by the federal Fair Credit Reporting Act, 15 U.S.C. _ 1681a (d). 44. As detailed above, the consumer report on Ms. J that K provided to IBC in or about September, 2005 contained inaccurate information about Ms. J. 45. K violated the federal Fair Credit Reporting Act, 15 U.S.C. _ 1681e(b), by failing to follow reasonable procedures to assure the maximum possible accuracy of the information about Ms. J when it prepared the September, 2005 consumer report it provided to IBC. 46. As a result of K’s conduct, actions and inaction, Ms. J was terminated from her job. She consequently lost pay until she was restored to her position after she arranged and paid to have her fingerprints checked against the Philadelphia Police Department Criminal Records File. 9 47. As a result of K’s conduct, actions and inaction, Ms. J also suffered actual damages in the form of humiliation, mental anguish and emotional distress. 48. K’s conduct, actions and inactions were willful, rendering the Defendant liable for actual damages and punitive damages in the amount to be determined by the Court pursuant to 15 U.S.C. _ 1681n. Alternatively, K’s conduct, action, and inactions were negligent, rendering the Defendant liable for actual damages pursuant to 15 U.S.C. _ 1681o. 49. Plaintiff is entitled to recover costs and attorney’s fees from the Defendant pursuant to 15 U.S.C. _ _ 1681n, 1681o. Count Two Violation of the Fair Credit Reporting Act,, 15 U.S.C. _ 1681k Failure to Comply with Requirements Regarding The Use of Public Record Information for Employment Purposes 50. Plaintiff realleges and incorporates by reference all preceding allegations of law and fact. 51. Pursuant to 15 U.S.C. § 1681k, when a consumer reporting agency provides a consumer report for employment purposes that includes public record information that is likely to have an adverse affect upon a consumer’s ability to obtain employment, the consumer reporting agency must either: (a) notify the consumer that the public record information is being reported, together with the name and address of the person to whom the information is being reported, or (b) maintain strict procedures to insure that the information it reports is complete and up to date. 52. The consumer report that K provided to IBC about Ms. J was furnished for employment purposes. 53. The consumer report that K provided to IBC about Ms. J included information that is a 10 matter of public record that is likely to have an adverse affect upon a consumer’s ability to obtain employment. 54. K violated the federal Fair Credit Reporting Act, 15 U.S.C. _ 1681k, by: (a) failing to notify Ms. J that it was furnishing adverse public record information to IBC, and (b) failing to maintain strict procedures to ensure that the public record information was complete and up to date. 55. As a result of K’s conduct, actions and inaction, Ms. J was terminated from her job. She consequently lost pay until she was restored to her position after she arranged and paid to have her fingerprints checked against the Philadelphia Police Department Criminal Records File. 56. As a result of K’s conduct, actions and inaction, Ms. J also suffered actual damages in the form of humiliation, mental anguish and emotional distress. 57. K’s conduct, actions and inactions were willful, rendering the Defendant liable for actual damages and punitive damages in the amount to be determined by the Court pursuant to 15 U.S.C. _ 1681n. 58. Alternatively, K’s conduct, action, and inactions were negligent, rendering the Defendant liable for actual damages pursuant to 15 U.S.C. _ 1681o. 59. Plaintiff is entitled to recover costs and attorney’s fees from the Defendant pursuant to 15 U.S.C. _ _ 1681n, 1681o. VI. Prayer for Relief Plaintiffs request that this Honorable Court provide Plaintiff N J with the following relief: 1. Declaratory judgment that K violated Ms. J’s rights under the Fair Credit Reporting Act; 11 2. Actual damages, including both the pecuniary damages of lost wages and non-pecuniary damages for humiliation, embarrassment, mental anguish, and emotional distress; 3. Punitive damages; 4. Attorneys’ fees and costs incurred by the plaintiff in the prosecution of this action; and 5. All other relief that the Court may deem just and proper. __________________________________ SHARON DIETRICH, Attorney Identification #44464 KERRY SMITH, Attorney Identification #94473 Community Legal Services, Inc. 1424 Chestnut Street Philadelphia, PA 19102 Attorneys for Plaintiff N J 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________ NJ : : CIVIL ACTION Philadelphia, PA 191__ : Plaintiff : NO. v. : : BACKGROUND CHECKER : : Defendant _____________________________________ : : : : Demand for Jury Trial Please take note that plaintiff demands trial by jury of all issues raised in this action. __________________________________ SHARON DIETRICH, Attorney Identification #44464 KERRY SMITH, Attorney Identification #94473 Community Legal Services, Inc. 13 1424 Chestnut Street Philadelphia, PA 19102 Attorneys for Plaintiff N J 14 Firearm Possession & Your Criminal Record A criminal convic on may trigger a ﬁrearm ban under both California and federal law. Even if you have the right to possess a ﬁrearm under California law, you may be prohibited from possessing a ﬁrearm under federal law. If you lose your ﬁrearm rights under federal law, you cannot possess a ﬁrearm anywhere in the United States. Federal law has ﬁnal say about whether or not you can possess a ﬁrearm. If you are not sure about your rights, do not a empt to buy a ﬁrearm un l you check with the California Department of Jus ce (www.ag.ca.gov/ﬁrearms) or an a orney with exper se on gun rights. FEDERAL LAW—You Cannot Possess A Firearm if You Have Been Convicted of: A state or federal felony, any state oﬀense for which you served a jail term for longer than one year, any misdemeanor oﬀense punishable by imprisonment for more than two years, or any misdemeanor crime involving domes c violence. OR IF YOU: Are currently charged with a felony Have an ac ve criminal warrant Have an addic on to any controlled substance Received a dishonorable discharge from the Armed Forces Are an undocumented immigrant Were adjudicated as a “mental defec ve” or involuntarily commi ed to a mental ins tu on in the last ﬁve years Are currently under a court order (or restraining order or T.R.O. or keep away order) pre-‐ ven ng you from harassing, stalking, or threatening your child, an in mate partner, or child of such partner. CALIFORNIA LAW: YOU MAY HAVE A LIFETIME FIREARM BAN IF: You have been convicted of a felony (which has not been reduced to a misdemeanor ) You have been convicted of any violent oﬀense listed in Pen. Code § 29905 You have two or more convic ons for brandishing a ﬁrearm You are currently addicted to any narco c drug See Cal Pen Code §§ 23515, 29800, 29900, and 29905 CALIFORNIA LAW: YOU MAY HAVE A 10-YEAR FIREARM BAN IF: You were convicted of certain misdemeanors, including: Assault Ba ery Assault with a deadly weapon or force likely to cause great bodily injury Discharging a ﬁrearm in a grossly negligent manner Drawing or exhibi ng any deadly weapon See Cal Penal Code § 29805 This ﬂyer is intended to provide general informa on only. It is not an exhaus ve list of California and feder-‐ al ﬁrearm laws. It does not cons tute legal advice, and it is not a subs tute for the advice of an a orney with exper se in gun rights who knows the details of your record. If you have speciﬁc ques ons about your rights, you should contact an a orney with gun rights exper se and the California Department of Jus ce for informa on about your par cular case. East Bay Community Law Center • 2921 Adeline Street, Berkeley, CA 94703 • t 510.548.4040 • f 510.548.2566 • www.ebclc.org Rev 2/11/14 Frequently Asked Ques ons About Gun Ownership with a Criminal Record Does a Penal Code § 1203.4 Dismissal (or “expungement”) restore my right to possess a ﬁrearm? No. A Dismissal under PC §§ 1203.4/1203.4a/1203.4a/1203.41 has no impact on your right to possess or purchase a ﬁrearm. A felony reduc on under § 17(b) may reinstate your rights. What if my oﬀense occurred when I was a juvenile? If your oﬀense falls into any of the above categories you are subject to a ﬁrearm ban un l you reach the age of 30. How can I ﬁnd out if I am permi ed to purchase or possess a ﬁrearm? You may apply to the Department of Jus ce for an eligibility determina on. The applica on and instruc-‐ ons are available at h p://www.ag.ca.gov/ﬁrearms/forms/; click on the link en tled Personal Firearms Eli-‐ gibility Check Applica on. You must ﬁll out the form, submit your ﬁngerprints, and have the form nota-‐ rized. There is a fee for this service. Can’t I just try to buy a gun and see if I’m turned down? No! It is a felony under both state and federal law to a empt to buy a gun if you know you are prohibited from doing so. You also run the risk of losing any money you put down, as well as the cost of the back-‐ ground check all ﬁrearm dealers are required to run before selling ﬁrearms. If you have any doubts about your eligibility, obtain a ﬁrearms eligibility check from the DOJ. What does “possession” mean? How do I protect myself from prosecu on? DO NOT a empt to purchase or possess any ﬁrearms or ammuni on. DO NOT allow people with ﬁrearms or ammuni on to ride in your car, even if they are carrying the gun lawfully. DO NOT stay in homes or ride in cars where other people store their ﬁrearms or ammuni on. If you live with other people, make sure that no one—including guests, friends, or family members—brings ﬁrearms or ammuni on into your home or onto your property. This ﬂyer is intended to provide general informa on only. It is not an exhaus ve list of California and federal ﬁrearm laws. It does not cons tute legal advice, and it is not a subs tute for the advice of an a orney with exper se in gun rights who knows the details of your record. If you have speciﬁc ques ons about your rights, you should contact an a orney with gun rights exper se and the California Department of Jus ce for infor-‐ ma on about your par cular case. EAST BAY COMMUNITY LAW CENTER- CLEAN SLATE PRACTICE 2921 Adeline Street, Berkeley, CA 94703 • t 510.548.4040 • www.ebclc.org Privileged and Confidential Attorney-Client and Work Product Document Clean Slate Participant Follow-up Checklist Assisted by Attorney or Advocate: ___________________ Phone: ________________ Date:__________ Collect more information regarding your criminal history: Obtain a copy of your RAP sheet from the Alameda County Sheriff’s Dept., 15001 Foothill Blvd., San Leandro, between 8:30 am and 3:30 pm. You must appear in person. The process takes one hour. Check with the criminal division of the courthouse if you are unsure whether or not you have an outstanding warrant. If you have an outstanding warrant, visit the criminal division of the courthouse that issued the warrant to be put on the court calendar. Obtain a RAP sheet from the California Department of Justice. You must complete LiveScan electronic fingerprinting. You will receive your RAP sheet in the mail. Obtain your “H-6 10-year driving record” and print-outs of “Failure to Appear & Failure to Pay” from the Dept. of Motor Vehicles. The cost is $5. Request a copy of your commercial criminal background report from . Collect supporting documents for your clean slate petitions: Collect 2-3 letters of support. Make sure the letters are addressed To Whom It May Concern, signed and dated by the person writing the letter and contain that person’s contact information. (See Sample Letter) Obtain letter from Alameda County Central Collections Department showing that you have no financial obligation in case number (s) _______ in Alameda County. (See sample). Go to 1221 Oak Street, Room 220, Oakland CA 94612 or call (510) 208-9900. If your account has been sent to the Franchise Tax Board, you can check on your balance by calling (916) 845-4064. For assistance with criminal records remedies outside of Alameda county: Explain that you need help with records remedies, such Penal Code section 1203.4 dismissals. Contact information: Case #s: Other: 2921 Adeline Street, Berkeley, CA 94703 • t 510.548.4040 f 510.548.2566 www.ebclc.org Rev. 05/12 Client’s name here Philadelphia, PA 19139 Date Background check company Attn: FCRA Disclosures/Reinvestigations Via Certified Mail Dear Sir or Madam: I am writing to dispute inaccurate information in my credit file and to request that you investigate and remove it from my file. For your reference, I have enclosed a copy of my report which you recently provided to a prospective employer. I have circled the item that I dispute. The report erroneously associates my identity with a record of criminal conviction. Specifically, the report lists a drug offense from earlier this year found in a Philadelphia County criminal records database. I am not the person named in that record, as evidenced by the following facts: 1. My date of birth is ___________. Although it is close to the birth date of the NJ for whom the criminal record was found, it is not a match. 2. I have never resided at ________ Street, Philadelphia, Pennsylvania, the address of record for the NJ with the criminal conviction. 3. The fact that your September 2, 2005 search of the Pennsylvania State Police criminal records database revealed that I have a clean record is conclusive that the Philadelphia County criminal record that you identified is not mine. The State Police reports an offense to an individual when two of three criteria—name, date of birth, or Social Security number—match. Therefore, the “no record” result of the State Police report means that neither my Social Security number (xxx-xx-xxxx) nor my date of birth (xx/xx/19xx) match those identifiers of the NJ convicted of a drug offense. I have enclosed a copy of the certification of my clean record from the Pennsylvania State Police, which may be validated as indicated in the certification. 4. My fingerprints have been checked against the Philadelphia Police Department’s Criminal Records File and no match has been found. As a result of this search, the City of Philadelphia Police Department has determined that I do not have a criminal record in Philadelphia. I have enclosed a copy of the certification of my clean record from the City of Philadelphia Police Department, which may be validated by contacting Lieutenant Gabriel Keown as indicated in the certification. I request that you delete all references to the Philadelphia County criminal record from my credit file because the record does not belong to me. Once this information has been deleted from my file, please notify [employer], which previously has received my consumer report for employment purposes, that this erroneous record was removed from my file. Sincerely, NJ Date ChoicePoint Workplace Solutions Consumer Report Disputes P.O. Box 49429 Charlotte, NC 28277 To Whom It May Concern: I am writing to request a copy of all information that ChoicePoint has about me, especially about ________________. Please send me a copy of my complete ChoicePoint file, including the public record information that ChoicePoint relied upon to report the criminal cases on my background check and a list of all employers to which you sent criminal background reports on me. Very truly yours, Client Address Philadelphia, PA 191 Phone INFORMATION ABOUT YOUR CLEAN SLATE CRIMINAL RECORD REMEDIES WHAT IS A PENAL CODE SECTION 1203.4 DISMISSAL? DOES A DISMISSAL MEAN MY RECORD IS TOTALLY CLEAN? There is no true “expungement” or sealing of convictions under California law. A 1203.4 dismissal, the available remedy for nonprison convictions, won’t remove the conviction from your record or court records, but it can help you obtain employment and it will release you from some penalties and disabilities of your conviction. Note: if you have to register as a sex offender (PC section 290), a 1203.4 dismissal does not end that requirement. A 1203.4 dismissal does not reinstate firearm rights, which you lose after a felony conviction and some misdemeanor convictions. To check your eligibility for firearms, complete a Personal Firearms Eligibility Check at www.ag.ca.gov/firearms. For more information about the impact of you criminal record remedies, contact EBCLC. WHAT IS A FELONY REDUCTION? After your felony is reduced to a misdemeanor under Penal Code section 17(b), it becomes a misdemeanor for almost all purposes, and you are entitled to say that you have not been convicted of a felony in that case. HOW SHOULD I ANSWER QUESTIONS ABOUT MY CRIMINAL RECORD ON JOB APPLICATIONS IN CALIFORNIA? Read the questions on the application carefully and disclose only the information requested. For example, some employers ask only about felony convictions or only recent convictions, not misdemeanors. In most cases, you need not disclose your arrests that don’t lead to conviction, your juvenile record, or successful diversions. Your answer about your conviction history depends on the type of employer – public or private. California “Public” Employers Jobs that require fingerprinting (LiveScan), jobs at government entities, jobs that require a governmentissued license, certificate or permit, or require a government security clearance, jobs that involve working with children or the elderly, healthcare work, etc. Examples: AC Transit, BART, school districts, banks, teacher A criminal background report prepared for government employers and professional licensing will almost always include all convictions, including those dismissed under section 1203.4. You are entitled to a copy of this background check. Always ask for a copy and check it for accuracy. Follow the directions on the application about which convictions to disclose. Most public employers cannot ask about your convictions that were dismissed under section 1203.4, but note that these convictions may still be reported on your LiveScan (fingerprints) background check. If you must disclose your dismissed convictions, write: “dismissed pursuant to Penal Code section 1203.4.” If you are uncertain about how to answer questions about your criminal record, contact EBCLC for help. California “Private” Employers Private, non-governmental companies hiring for jobs that do not involve work with sensitive populations or government contracts Your California background report for private employers should not include any of the following information about your criminal history: o Any convictions over 7 years old o Any arrests not leading to conviction o Dismissed (1203.4) misdemeanor convictions o Successful diversion programs o Certain marijuana convictions After you have had all of your convictions dismissed under section 1203.4 in all California counties, you are legally permitted to state that you have no convictions. A potential private employer must first get your written permission before running a criminal background check on you. You are entitled to see any background check run on you. Always get a copy and check it for accuracy. If you are uncertain about how to answer questions about your criminal record, contact EBCLC for help. CRIMINAL RECORDS AND EMPLOYMENT – YOUR RIGHTS You have a right to request a copy of your background check report. Always ask the employer for a copy. Your criminal record must be reported correctly, and you have the right to have errors corrected. It is illegal for most employers to use your criminal history as the reason not to hire you without first considering: (1) the type of your offense, (2) the requirements of the job in question, and (3) the age of your cases. For most jobs, employers are not permitted to use a conviction that has been dismissed under section Penal Code 1203.4 as a factor in determining eligibility for employment or promotions. A potential employer may be eligible for tax breaks and other benefits for being a fair chance employer. _IF ANY OF YOUR RIGHTS ARE VIOLATED OR YOU HAVE QUESTIONS, PLEASE CALL EBCLC AT 510-548-4040_ This flyer provides general information only. It does not constitute legal advice, nor does it substitute for the advice of an expert representative or attorney who knows the particulars of your case. We have made every effort to provide reliable, up-to-date information but we do cannot guarantee its accuracy. The information in this flyer is current as of June 2014 East Bay Community Law Center 2921 Adeline Street, Berkeley, CA 94703 t 510.548.4040 f 510.548.2566 www.ebclc.org CHECKLIST FOR IMPACT LITIGATION ISSUES CORI/CINI Issues CORI = version of state summary criminal history info distributed to anyone other than the subject CINI = version of state summary criminal history info distributed to the subject □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ CORI with entry for arrest or detention that did not lead to conviction CORI with entry for arrest or detention without any disposition information/ or “NDIA” CORI with reference to successfully completed diversion program, including PC §1210.1/prop 36, or successfully completed deferred entry of judgment program CORI or CINI with entry for arrest or conviction under H&S Code §§11357(b), (c), (d), (e) or 11360(b) that is more than two years old CORI or CINI with entry for an arrest for which the conviction (whether or not an entry for the conviction appears on the CORI) was under H&S Code §§11357(b), (c), (d), (e) or 11360(b) Denials of CORI correction requests (requested pursuant to PC §11105) by the California DOJ Licensing/Employment Issues State agency (esp. DSS) denials of initial work clearance to individuals with arrest-only records Significant delays in processing applications for licenses, clearances, exemptions, or benefits due to an applicant’s criminal history information Denials of jobs based on dismissed or sealed convictions (including convictions dismissed under PC §1203.4), infractions, juvenile adjudications, arrest/detentions not leading to conviction, offenses resulting in successful completion of diversion or deferred entry of judgment program, arrests or convictions under H&S Code §§11357(b), (c), (d), (e) or 11360(b), and/or convictions that are very old or not closely related to the job function Denials of licenses based on infractions, dismissals (but not PC §1203.4), arrests resulting in successful completion of diversion or deferred entry of judgment program, arrests not leading to conviction, arrests or convictions under H&S Code §§11357(b), (c), (d), (e) or 11360(b) Applications for job or license instructing applicant to disclose criminal record information and not expressly stating that applicant is not required to disclose certain types of criminal history information that may not be considered in employment/licensing decisions (roughly, the categories described in prior two bullet points) Employer or licensing agencies’ denials of individuals’ requests for copies of CORI provided by the DOJ to the employer or licensing agency Employer or agency decisions relying on criminal history information reported DMV record Procedure for Flagging Case Issue(s) SCAN COPIES OF KEY CASE DOCUMENTS AND SAVE TO K:\Data\Cleanslate\Sarah ENTER CASE ISSUES IN PIKA: - Assign Sarah Crowley as “Primary Counsel #2” or “co-counsel” for the case - Select “Duplicate this case” on the left side of screen; select appropriate opening code - In the “Notes” tab, describe issue PLEASE TURN OVER! □ □ DOJ RAP Sheets/CORI Reports ALWAYS ASK CLIENT FOR COPY OF THEIR DOJ RAP SHEET AND ANY CORI REPORTS PROVIDED TO EMPLOYERS/LICENSING AGENCIES (AS WELL AS ANY PRIVATE BACKROUND CHECK REPORTS) IF NO RECENT DOJ RAP SHEET, ASK CLIENT TO REQUEST COPY Procedure for DOJ RAP sheet request: - Complete DOJ Fee Waiver Application – K:\EBCLC\Data\CleanSlate\Advocate Intake Tools\Getting your RAP Sheet - Info & Forms – and fax to DOJ. - Client receives a “Request for Live Scan” form in the mail from the DOJ. - Helps/instruct client make an appointment with Sparkle at All Scan Live Scan, 492 7th Street in Oakland, (510) 409-7463 (Sparkle gives discount to EBCLC clients). - Follow up with client to make sure they send us a copy of the RAP sheet when they get it (probably within a week). □ □ DMV Records ALWAYS ASK CLIENT FOR COPY OF THEIR 10-year certified driving record FOLLOW PROCEDURE FOR DMV RECORD REQUEST if client doesn’t have an up-to-date 10-year record and if client has any of the following: (1) DUI (VC §§23152, 23151, or 23140) conviction older than 7 years; (2) DUI arrest older than 3 years; or (3) any successfully completed drug diversion (DIVERSION, DIV, DISM-DRUG, Penal Code 1210.1 (Prop 36)) Procedure for DMV record request: - Schedule in-person appointment online: http://www.dmv.ca.gov/foa/welcome.do?localeName=en - OR, if client is reluctant to go in person to DMV, help them fill out request form to submit by mail: http://apps.dmv.ca.gov/forms/inf/inf1125.pdf - Notify client EBCLC can reimburse them for the $5 cost of DMV record □ □ REQUEST CORRECTION OF ERRONEOUS CRIMINAL HISTORY INFORMATION ON DMV RECORD - Submit DL 207 form: https://apps.dmv.ca.gov/forms/dl/dl207.pdf REQUEST REMOVAL OF CRIMINAL HISTORY INFORMATION ON DMV RECORD OLDER THAN - 10 years for violation of VC §23140, 23152, or 23153 (DUI) - 7 years for VC §§2800.2, 2800.3, 14601, 14601.1, 14601.2, 14601.3, 14601.5, 20001, 20002, 21651(b), 22348(b), 23103, 23109(a) or (c), 23109.1, 23140(a) or (b), 31602; PC §§191.5, 192 - 3 years for other violations and any accidents Procedure for requesting removal of old information: - Call the DMV’s Mandatory Actions Unit: (916) 657-6525 or (916) 657-6526 - Log any communications with (and/or attempts to reach) Mandatory Actions Unit in Mandatory Actions Unit Log (K:\Data\Cleanslate\Sarah) PLEASE TURN OVER!
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