Unintended Consequences

I am opposed to employers holding the fact of petty non-moral-turpitude convictions against job applicants. Unless you are hiring drivers, you shouldn’t care whether a prospective employee has had a DWI. I can’t think of any job (from the office of the President right down to me and you) for which never having smoked marijuana is a reasonable qualification. (It’s not like the drunk driver or the pot smoker has been working as an internet marketer.)

But employers often seem unwilling to hire people with chickenshit criminal convictions. That DUI might stop you from getting hired in the mailroom; that possession-of-marijuana case might keep you from loading trucks at a warehouse. And computers make it easy.

A quick, simple, and cheap background check will catch most everything an employer might want to justify not hiring someone. In these recessionary times, this is bad news for the guy with the conviction (or the deferred-adjudication probation).

(The truth of this drives a good deal of my practice: not fighting is more expensive than fighting.)

Then there is the internet. Even an employer who doesn’t pay for a quick-and-dirty background check will probably google you. When it does, the unappealed conviction is probably not going to appear: records of criminal convictions are valuable, and nobody (not even the Texas Department of Public Safety) is giving them away in any organized way.

But the appealed conviction…ah, that’s another thing entirely. If you appeal your case, the court of appeals is going to publish (on the Internet, even if the internet is “not for publication”) an opinion, and the opinion is going to contain your name, prominently, several times, as well as a description of what you were charged with. Even if the court of appeals reverses and renders, it’s going to put your name out there and the internet-wielding public is going to easily find out about  the accusation against you.

I’ve got this project, the Texas Criminal Slip Opinions Server (TCSOß). It’s still in development (whence the ess-tset), but it takes the opinions in criminal cases from the Texas courts of appeals (fifteen intermediate appellate courts and the Court of Criminal Appeals), converts them from PDF to HTML if necessary, adds some tags (reversal? state’s appeal? what trial court? what county?) and posts them sequentially on the day that they are released by the courts.

The idea arose from my own need for the product: I knew that I would read more case law if it were in one place, in HTML format, and accessible via RSS. I’ve put more money into the project than it merits, perhaps, but my hope is that I won’t be the only one to use it, and that it’ll improve the quality of criminal lawyering in Texas by making it easy for anyone who’s interested to keep up with the state of the criminal law.

When TCSOß automatically republishes an appellate opinion, it republishes the name and the charge. Which wouldn’t necessarily be consequential, except that for some reason known only to Google, TCSOß often comes up first in a search for the unique name of a person. It comes up before the opinion on the court of appeals website, before the opinion on any of the slower publishers, and often before anything that the person holding the unique name would like searchers to find.

I got a telephone message today from Roxanne (Roxanne and Zulema answer my phones when I can’t be reached directly): “Joe Schmoe called he says that every time he googles his name your website comes up and he wants his name taken down please call him he feels this is hurting him when looking for a job.” I called Joe back to get some details, but I haven’t heard back from him yet.

I feel for Joe. His name is highly googleable, and when you google it the opinion on TCSOß affirming his class-B misdemeanor convictions (POM and DUI) pops up before anything else; six or so sites created by him come up next (joeschmoe.net, joeschmoe.net/joe-schmoe-blog, joeschmoe.net/formeremployer, etc.), followed by the Findlaw version of the appellate opinion. The court’s version of the opinion is on the second page.

(Aside: TCSOß doesn’t use any sort of SEO wizardry. Why does it kick Findlaw’s ass in search results? Because Findlaw sucks.)

If TCSOß weren’t there, Findlaw would still be on the first page. I expect that eventually the TCSOß and Findlaw posts will slip down off page one, but until then (and if employers look beyond page one) Joe is in a tough place.

Joe’s discomfiture is an unintended consequence of the creation of TCSOß. But Joe is just the tip of the iceberg. There are tens of thousands of people who would prefer that the appellate opinions in their cases recede into obscurity.

TCSOß is an important project, and the name of the defendant is an important part of the case. When we talk about appellate opinions, we refer to them first by the name of the defendant. Joe’s case doesn’t at first blush appear particularly important (not for publication, legal sufficiency the sole issue), but almost any case could be important to someone. Some lawyer working on something entirely different might at some point need to know about Schmoe v. State.

So what responsibility do I have, and what do I do about it?

(Incidentally, joeschmoe.net touts Joe’s internet marketing services. Joe’s problem may be as much meta—that he isn’t able to market himself above the fact of his conviction—as proto—the fact of his conviction. So Joe may not be the best test case. But there will be others looking for honest work who may be affected by TCSOß.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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19 Responses to Unintended Consequences

  1. Mike Paar says:

    I think employers fear being liable for anything an employee who has a criminal record does. And I think it transcends further, like maybe an apartment owner who may be afraid to rent to someone who has had a DWI for fear he could be sued if the resident injures someone in the parking area while driving drunk. The bottom line is what matters. I have seen a Fortune 500 corporation hire a 3-time felon who had served two recent prison sentences, but they needed someone quick who possessed the skill-set that he had. And besides, with most larger companies a criminal record may be the least of a potential employees worry as most won’t make it past their credit check.

  2. Charles B. "Brad" Frye says:

    Your “responsibility” (if any) is fulfilled by your explanation of a non-malicious motive toward Joe. You may also (and apparently do) feel empathy for his situation. Nonetheless, regardless of how many times I wish it not so, facts are facts. (And, as you imply, Joe needs to do a better job promoting his Internet presence to try to “fix” this situation. Perhaps you could refer him to a good “reputation manager”?)

  3. Roger Cook says:

    Perhaps you could anonymize defendants automatically–is the name in a given format in the same place on all of the opinions? Then, have the anonymized versions available publicly, but require a login (one that is not automatically granted, but approved by you or someone you appoint) to download the original versions through your site? The hope is that other attorneys will be given logins, but HR managers won’t.

    If you require a login to download, you can also compose a terms of service agreement with big bold letters stating that this site is for legal and academic research purposes only, any other use constitutes breach of agreement with penalties, yadda yadda?

    Log IPs, correlate to businesses as well as possible (What’s IBM doing looking at a case of a protested speeding ticket?), keep the records, and if someone’s denied a job, maybe they can look up that the employer did download the original version from you, violating the ToS, blah blah blah.

  4. Larry Standley says:

    To Mike Parr: WOW! Even at this hour your following comment woke me up:

    “I have seen a Fortune 500 corporation hire a 3-time felon who had served two recent prison sentences, but they needed someone quick who possessed the skill-set that he had. And besides, with most larger companies a criminal record may be the least of a potential employees worry as most won’t make it past their credit check”.

    Did any of the Fortune 500 company executives share a federal detention facility cell with their new hiree? Pray tell, WHAT on earth was this “Italian Job” like person’s so valuable qualifications that this big company just had to have him? Damn, where was this guy when Enron needed him?

    Larry Standley

  5. Mark Draughn says:

    You could always tell Google not to index your site. People would have to find out about it in some other way, but once they got there they could still use a built-in search (you’d have to stop using Google for that). Otherwise, Roger Cook’s approach of finding and hiding the name seems appropriate.

    Perhaps you could replace the name with a tag of some kind and then use a bit of Javascript to put the name back. It would look the same but the HTML wouldn’t have the name in the clear, so search engines would generally have trouble finding it. (This would also mess up RSS feeds and screen readers.) You could include a link to the unaltered content for download. The hard part, of course, would be picking out the names.

  6. Thomas Stephenson says:

    Well, even if your service were to anonymize the appellant, the COA/CCA website still will not.

    I didn’t even think about this. Your conviction is reversed, and yet the details of your offense are still available on Google.

  7. Mr. B., awesome idea. I envision you rolling in big bucks from the very first month of launching the project (via those wiishing to purchase Site Use Credits & Advertise) that they dabble in Criminal Appeals from all 254 counties. It’s a win-win therefore it should be a winner, especially if you consider the additional ideas provided by those above. Pease vett ‘all’ advertisers, for the client’s sake.

    *Mr. Paar reminded us about the nation’s number one ‘Job Killer’ (credit check) a form of ‘discrimination’ that doesn’t get very much play. I’m working on a ‘project’ that will lead to the death of it being utilized for anything other than individuals or businesses seeking to purchase something via credit. Thinking about including a clause that rids job seekers (paralegal / legal assistant) of the repulsive pre-video or pre-photo hurdle being utilized by law temp to perm headhunters.

    Of course, it’ll take a few lawyers (and not the practicing type) to consider growing a pair and refuse to sale-out to lobbyist and bribers. Look forward to a Bill that will get the coffin built and look even further for the nails (votes) to seal it up. A fellow can dream can’t he, even if it’s in the DP comment section. Good luck in your endeavors. Thanks.

  8. Ric Moore says:

    “You could always tell Google not to index your site. ”
    Just google up on robot.txt to edit your file to disallow spiders from indexing your site. Simple. That would spare a lot of folks from the embarrassment.

    You also might want to check out our website of our “Second Chances” rally day at our state Legislature. It works. :) Ric

  9. Mark Bennett says:

    Thank you, gentlemen, for your thoughts on the subject. It would not be difficult to change the script to change the defendant’s name to his initials (just throw more money at it…). I’m not interested in telling Google not to index the site.

    I guess the more interesting question to me is the question of responsibility, which only Brad seems to have addressed.

    Your comments?

  10. I love your TCSOß, it’s a great project and a great service to this state. Other states just publish these, like the public documents they are. Texas’s lag has made privacy a question for benevolent aggregators like yourself. Even if you accommodate him, Joe is fighting a losing battle because eventually these will be published by more than just you and Findlaw.

    It’s interesting to me that the substance of Joe’s charges matter to your view of his privacy, and perhaps the fact that the conviction was not overturned. Is it just the misdemeanor part or the “chickenshit” part? Domestic violence comes to mind as a completely relevant misdemeanor that could have far worse slip opinion facts.

    • Mark Bennett says:

      Rebecca, Texas publishes these opinions, just not all at one place and not all in HTML format (the courts of appeals are moving toward PDF publication for some reason that I can’t divine).

      I don’t have as great an issue with employers making hiring decisions based on crimes of dishonesty or violence, but I’m not comfortable drawing the line between “relevant to employment” and irrelevant. So if I were to make changes to the site they would apply to all sorts of cases.

      If Joe’s conviction had been overturned and he had beaten the case and gotten the records expunged, I wouldn’t hesitate to remove his name from the opinion. Short of that, I’m not sure that the outcome of the appegal affects my view of his privacy. Reversals are more important than affirmances, though, so there’s a stronger public interest in publishing the cases in which convictions are overturned.

      • I am well aware of the pdfs. I completely agree that a more accessible form will result in more educated criminal attorneys — and that overturned convictions have more public impact.

      • Mark Bennett says:

        I figured you were probably aware of the PDFs, but I do have one or two other readers. Any thoughts on the ethical issue?

      • I might accomodate this one guy, but not because of an ethical duty. Things get more complicated when you don’t know about expungement orders.

      • Mr. B., the reason why they are jumping on the PDF bandwagon is due to it being easier to download. I Hope that helps.

        Re: “I don’t have as great an issue with employers making hiring decisions based on crimes of dishonesty or violence,” – That outlook has become the norm for those not directly contaminated by the issue. I have been since 1984 and counting.Which affords me an obligation to argue for the lesser man.

        It doesn’t matter if you can provide proof that you were falsely arrested and wrongfully convicted. The job application consideration ends the very moment that one marks ‘Yes’ to the question – Have you ever been convicted of a felony and if ‘Yes’ please explain. Sadly, when the public has no problem with this form of discrimination it results in mass unemployment, subsequent homelessness and unnecessary crimes.

        Which is why, those convicted of a felony & certain Misdemeanors deserve to fall under the protections afforded by the Americans with Disabilities Act. Anyone with a criminal record showing; they’ve applied for no less than 1 job a day, for no less than 4 days a week in a 3 month period should be eligible for immediate & full assistance from the county convicted in until gainfully employed. Anyone willing to put this sub group of the population on the payroll should deserve a 100% tax rebate for 100 workers and above, 75% for 50 to 75 workers, 50% for 1 to 24 workers. Cities that participate could reduce their tax burden as well.

        If the taxpayers have no problem with the abuse of the plea bargain system that allows the innocent to be pled out vs. released, and employers have no problem denying the entire ‘YES’ crowd due to security / insurance / it’s the economy excuses, then so be it. One way or another, the taxpayers are paying for the consequences. We have to do something even if it’s just insignificants dreaming out loud. Thanks.

  11. Also consider the fact that many employers use criminal background checks in a manner that violates the FCRA. Those quick and cheap criminal checks (and all google searches) that are used to cause adverse hiring decisions are not allowed, since these searches (typically third party databases) are not verified with the source (i.e. a search of the actual court in question).

    • Mark Bennett says:

      Brian, I had no idea. Do you have a cite to the relevant portion of the FCRA?

      • § 613. Public record information for employment purposes [15 U.S.C. § 1681k]
        (a) In general. A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer’s ability to obtain employment shall
        (1) at the time such public record information is reported to the user of such
        consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
        (2) maintain strict procedures designed to insure that whenever public record
        information which is likely to have an adverse effect on a consumer’s ability to
        obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.
        (b) Exemption for national security investigations. Subsection (a) does not apply in the case of an agency or department of the United States Government that seeks to obtain and use a consumer report for employment purposes, if the head of the agency or department makes a written finding as prescribed under section 604(b)(4)(A).
        § 614. Restrictions on investigative consumer reports [15 U.S.C. § 1681l]
        Whenever a consumer reporting agency prepares an investigative consumer report, no adverse information in the consumer report (other than information which is a matter of public record) may be included in a subsequent consumer report unless such adverse information has been verified in the process of making such subsequent consumer report, or the adverse information was received within the three-month period preceding the date the
        subsequent report is furnished.

  12. Also here’s a good “Opinion” that the FTC made on the issue:
    http://www.ftc.gov/os/statutes/fcra/allan.shtm

    It’s one of the big problems I see and try to warn my clients about. Places like PublicData.com or even LexisNexis have less than complete and accurate data in their databases. This is well established.
    Heck, even official government data collections are inaccurate or incomplete. Case in point, Texas DPS criminal conviction database. There have been several news stories (I think the most recent was a Dallas area newspaper) documenting how incomplete it is – even the big counties like Harris & Dallas are years behind in providing data for it.

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