In the previous piece about decoding criminal case dispositions, we listed the most common dispositions (e.g., guilty, not guilty, dismissal, not prosecuted). Here is a list of less common criminal case dispositions, some of which may be only found in one jurisdiction:
Suspended Sentence: This means the court has delayed the sentencing for an offense pending the successful completion of a period of probation or successful completion of a treatment program. If the defendant does not break the law during that period and fulfills the conditions of the probation, the judge usually reduces the degree of the offense or may dismiss the case entirely. Until the sentence is reduced or dismissed, the case is considered pending.
Diversion/Deferred Prosecution: The court has delayed prosecution pending the successful completion of probation conditions, at which point the charges will be dismissed. Until charges are dismissed, they remain pending.
Adjudication Withheld: The judge orders probation but does not formally convict the defendant of a criminal offense.
Probation Before Judgment: In Maryland, probation before judgment (PBJ) is one type of disposition in a criminal case. For a defendant to receive a PBJ as a disposition, the defendant must make a plea of guilty; however, the court stays the finding of guilt and places the defendant on probation. If the defendant satisfactorily completes the probation terms, the guilty plea is stricken. PBJ is not a conviction in Maryland.
Stet Docket: The prosecutor may place the case on the stet docket. This is an indefinite postponement of a criminal case for up to three years. It is not a conviction. In Illinois, it is called “stricken off leave.”
ARD Program: Common in Pennsylvania, it stands for “Accelerated Rehabilitative Disposition Program.” This program is given to the defendant in place of adjudication. If the defendant completes the program, the case is closed.
Conditional Discharge: In New York, a conditional discharge is part of a sentence. When the judge sentences the defendant to a conditional discharge, the judge will indicate the conditions that the defendant must meet for the sentence to be successfully completed.
In New Jersey, a conditional discharge is a type of diversionary treatment program offered to individuals charged with a disorderly person’s offense involving controlled dangerous substances (e.g., heroin, Xanax, Oxycontin, or drug paraphernalia). Upon completion of the terms and conditions of the treatment program, the treatment is terminated and the proceedings against the defendant are dismissed.
Company Legal Name v. DBA
GeneralEvery business has a “legal” or “true name.” When researching a company, it is important to identify its legal name. In the case of a corporation or limited liability company, the legal name is the one on its formation document — e.g., the articles of incorporation or articles of organization. As an example, Scherzer International’s legal name is Scherzer International Corporation.
If the company does business under another name, it is commonly referred to as a DBA – which stands for “doing business as.” DBAs are also sometimes referred to as an “assumed name,” “fictitious business name,” or “trade name.” State and local laws generally require a company to register a DBA it is using; however, it is important to note that registering and doing business under a DBA name is not the same as forming a business or a business entity.
Reporting Criminal Convictions, the FCRA, and State Laws
FCRA, Other States with FCRA LawsUnder the Fair Credit Reporting Act (FCRA), criminal convictions can appear in a background report regardless of when they occurred. It does not matter how old the conviction is. However, some states have passed their own legislation similar to the FCRA that does place restrictions on reporting criminal convictions.
Which states restrict reporting on convictions?
California, Colorado, Hawaii, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, Texas, and Washington all have laws that limit the scope of reporting criminal convictions to seven years. In Hawaii, the seven-year limit is for felonies only; the reporting of misdemeanors is limited to five years. The District of Columbia limits the reporting of criminal convictions to 10 years.
All states not listed above follow the FCRA rule that criminal convictions can appear in a background report regardless of when they occurred.
The Salary Exception States
Seven of the states listed above allow an exception to their rule of limiting reporting criminal convictions to seven years. The exception is based on the salary the candidate is expected to make. If the salary exceeds a certain threshold, the seven-year limitation does not apply, and criminal convictions can appear in the candidate’s background report regardless of when they occurred.
UCC filing where the secured party is the IRS
FCRAIf the IRS wants to file a statewide tax lien against a taxpayer’s personal property, the document evidencing the lien will be filed with the secretary of state’s office. Most states (if not all) index the IRS liens along with the UCC-1 financing statement liens. Although the tax lien is indexed with the UCC filings, the tax lien is not a UCC filing.
The reasoning for indexing the federal tax liens with the UCC-1 filings has to do with a potential bankruptcy filing by the debtor/taxpayer. In most cases, there will be an issue of which lien takes priority in the bankruptcy case. The date of filing with the secretary of state usually decides the issue of priority.
Civil Judgments v. Judgment Liens: What is the Difference?
FCRAA civil judgment and a judgment lien are not the same things, although they do relate to the same debt.
A civil judgment is an official decision by the court regarding a civil lawsuit. If the judgment is in favor of the plaintiff (the party filing the lawsuit), the judgment typically awards the plaintiff a sum of money that must be paid by the defendant (the party sued by the plaintiff). A civil judgment can be located in a search of civil court records.
If the judgment debtor (the defendant who lost the lawsuit) fails to voluntarily pay or “satisfy the judgment,” it is up to the judgment creditor (the plaintiff who won the lawsuit) to enforce or collect the judgment.
There are a variety of ways to enforce a civil judgment. A common method of enforcing a judgment is for the judgment creditor to file a judgment lien, which is also often referred to as an “abstract of judgment.” This is an involuntary lien that the judgment creditor files to attach to the judgment debtor’s property in the jurisdiction where the judgment lien is filed. The judgment lien is typically filed in the county recorder’s office but may also be filed at the courthouse in some jurisdictions. In general, the lien is satisfied from the sale proceeds when the judgment debtor sells the property or when a refinance occurs.
Are independent contractors considered employees under the FCRA?
FCRAUnfortunately, there is no clear answer.
The Federal Trade Commission (FTC) in its most recent staff report (in 2011) states that “employment purpose” is interpreted broadly and may apply to situations where individuals are not technically employees. Reports on consumers who are clearly not employees under traditional common law principles can nevertheless be construed as consumer reports for employment purposes.
It is up to the employer to determine the purpose of the background check based on its particular facts and circumstances. Some points to consider include:
1) Is the individual free from control and direction in connection with the performance of the service?
2) Is the service performed outside of the usual course of business of the employer?
3) Is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed?
If the answer is “yes,” then most likely a report on the individual would not be under the FCRA’s employment purpose.
While a few recent district court decisions have held that the FCRA employment purpose does not apply to contractors, the FTC has not budged on its stance that employees and nontraditional workers alike are protected under the FCRA.
Where there are gray areas, the conservative approach is to follow the employment purpose requirements but modify disclosure and authorization forms and other documents to reflect an independent contractor status.
State and Federal Court Searches: Removal vs. Remand
GeneralThe 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.
Workplace Investigations and the FCRA
FCRABefore a background check can be conducted on an applicant or employee, the FCRA requires that an employer (our client) provide a written disclosure form and obtain a signed authorization from the applicant or employee. While these requirements will apply to nearly all background checks, there are two situations in which the FCRA permits an employer to dispense with the disclosure and authorization requirements — an investigation of (1) suspected misconduct relating to employment or (2) compliance with federal, state, or local laws and regulations, the rules of a self-regulatory organization, or any preexisting written policies of the employer.
This alleviates the concern that providing the subject with advance disclosure of the investigation and obtaining the subject’s authorization to conduct the investigation would greatly hamper the investigation itself.
However, the FCRA does impose an obligation on the employer if adverse action, such as termination or suspension, is taken against the employee because of the investigation. In those situations, the FCRA requires the employer to provide the employee with a summary of the nature and substance of the investigation. Although the FCRA does not specify the time period within which the employer must provide the summary, it seems reasonable to provide it just after the adverse action is taken.
The FCRA does not require the employer to provide the employee with a copy of any report prepared for the investigation, nor does the FCRA require the employer to disclose in the summary the sources of the information obtained in the investigation. If co-workers, vendors, customers, or other individuals provided damaging information about the employee, their identities would not need to be disclosed to the employee in the FCRA summary.
Decoding Criminal Case Dispositions – Part II
GeneralIn the previous piece about decoding criminal case dispositions, we listed the most common dispositions (e.g., guilty, not guilty, dismissal, not prosecuted). Here is a list of less common criminal case dispositions, some of which may be only found in one jurisdiction:
Suspended Sentence: This means the court has delayed the sentencing for an offense pending the successful completion of a period of probation or successful completion of a treatment program. If the defendant does not break the law during that period and fulfills the conditions of the probation, the judge usually reduces the degree of the offense or may dismiss the case entirely. Until the sentence is reduced or dismissed, the case is considered pending.
Diversion/Deferred Prosecution: The court has delayed prosecution pending the successful completion of probation conditions, at which point the charges will be dismissed. Until charges are dismissed, they remain pending.
Adjudication Withheld: The judge orders probation but does not formally convict the defendant of a criminal offense.
Probation Before Judgment: In Maryland, probation before judgment (PBJ) is one type of disposition in a criminal case. For a defendant to receive a PBJ as a disposition, the defendant must make a plea of guilty; however, the court stays the finding of guilt and places the defendant on probation. If the defendant satisfactorily completes the probation terms, the guilty plea is stricken. PBJ is not a conviction in Maryland.
Stet Docket: The prosecutor may place the case on the stet docket. This is an indefinite postponement of a criminal case for up to three years. It is not a conviction. In Illinois, it is called “stricken off leave.”
ARD Program: Common in Pennsylvania, it stands for “Accelerated Rehabilitative Disposition Program.” This program is given to the defendant in place of adjudication. If the defendant completes the program, the case is closed.
Conditional Discharge: In New York, a conditional discharge is part of a sentence. When the judge sentences the defendant to a conditional discharge, the judge will indicate the conditions that the defendant must meet for the sentence to be successfully completed.
In New Jersey, a conditional discharge is a type of diversionary treatment program offered to individuals charged with a disorderly person’s offense involving controlled dangerous substances (e.g., heroin, Xanax, Oxycontin, or drug paraphernalia). Upon completion of the terms and conditions of the treatment program, the treatment is terminated and the proceedings against the defendant are dismissed.
Civil Case Dispositions – Dismissals
GeneralA dismissal also can take one of two forms:
A dismissal can be made by the court, the plaintiff, or an agreement between both the plaintiff and defendant.
New York Drunk Driving Laws: DWI v. DWAI v. DUI
New YorkAlmost everyone has heard the terms DWI and DUI, and many think that both are interchangeable. New York law uses a third term – DWAI. None of these terms are interchangeable, and New York law does not use the term DUI or driving under the influence.
In New York, there are two main “drunk driving offenses” – DWI and DWAI. DWI stands for “driving while intoxicated,” while DWAI stands for “driving while ability impaired.” A DWI means that the driver is legally intoxicated, with a blood alcohol content of at least 0.08 percent. A DWAI involving alcohol means the driver’s blood alcohol content is between 0.05 and 0.07 percent.
Although the penalties for a New York DWI and DWAI are nearly the same, there is a big difference between them regarding the offense level. A DWI conviction is a criminal offense, while a DWAI conviction is a violation – which in New York is a non-criminal offense.
The practical effect of this distinction is that a DWAI conviction will appear on a New York driving record (usually stated as “driving while impaired”), but the court conviction will not appear on a New York Statewide CHRS report because these reports do not include non-criminal offenses such as violations.