Update Thursday 5/25: Attorney Johanna Griffiths was on THE TAKE with Sue O’Connell NECN to discuss the hearing! Check out the video.
Update 5/24/17: Great turnout at the hearing on Tuesday! Details here. There is still time to submit public comments to the DPU/ through June 9th.
Update 4/21/17: Gov Baker made some very misleading comments about the rideshare rejection appeals process, noted in the Boston Business Journal here. The DPU has stated that 455 of 1472 appeals have been granted, however these are almost entirely appeals of “discretionary disqualifications”, and not anyone who failed because of the automatic conditional appeals. What people want and need is a way to appeal the license suspension from 5 years ago, or the 2 cwofs from 20 years ago, and explain their situation. Those appeals are still not even heard.
Update 4/13/17: More press today from the Globe. There are a few interesting nuggets in here:
- Unconfirmed story of a record seal fixing a CORI background check problem, but details are limited. The story sounds pretty fishy unfortunately, and does not agree with what we understand about the sealing process and the DPU access to supersede that.
- Hints that hearings and reform may be coming. Hearings are scheduled for May 23rd at 10am at the Transportation Building in Boston (10 park plaza). Public comments through June 9th. More details to follow.
- Gov Baker is quoted as not previously understanding that a suspended license from 6 years ago is not appealable, and is seemingly open to allowing that.
- Same with Mayor Carlo DeMaria of Everett. They are both definitely in the tough background checks camp, but express sympathy towards minor issues caught up. So there may be some room for negotiation if the hard liners are amenable. Stay tuned.
Update 4/7/17: This story was covered on Channel 7 News Boston, and attorney Johanna Griffiths of the Law Offices of Russell Matson was interviewed. Over 8000 (our of 71,000) drivers rejected on strict background checks.
Unfortunately, there is nothing we can do to help drivers with this issue, but we are hoping that media attention will bring changes to the background check strictness.
A new background check requirement for rideshare drivers (Uber/Lyft) in Massachusetts is having serious and unexpected consequences for drivers without a perfect driving record, or with some very minor or old criminal incidents. The standards being applied are extraordinarily strict and include non-conviction continuances, which were never meant to follow you for years or decades.
We’ve had quite a few calls from drivers who are shocked to learn they failed the check and are now out of a job. The Commonwealth has pledged to review every ride-hailing drivers background check under this new standard by April 3, 2017, and follow up with routine rechecks of drivers every six months to catch new incidents.
Governor Baker’s stated goal is to make this strict new checks “the most comprehensive in the country”.
But do they go too far? Are we limiting the ability to get work of people with minor incidents from many years in their past?
What types of offenses are grounds for failing a background check to drive for Lyft or Uber?
The disqualifying conditions for Uber & Lyft background check failure are on the Mass DPU website. And they are is extremely strict. They include:
- Any license suspension relating to operation of a vehicle, in any state within 7 years. You can have had your license suspended for many reasons, including non-payment of fees or fines for civil offenses.
- Habitual traffic offender status within 7 years, or more than 4 traffic violations within 3 years.
- Any “violent crime” including a simple assault, threat or weapons charge within the last 7 years that resulted in a conviction or CWOF
- Any OUI conviction or CWOF within the last 7 years, or any time in the past for an OUI resulting in injury.
- Any reckless driving / negligent operation CWOF of conviction within the last 7 years
- More than one driving related CWOF, ever (leaving the scene, negligent operation, OUI). Even if there are 2 charges from the same incident.
- Any felony fraud offense conviction or CWOF within 7 years. This includes shoplifting/larceny over $250.
- Any serious violent crime, ever
- Any “sex offense” ever, including indecent exposure (which could be just public urination)
- Any violation of a restraining order or abuse prevention order
- Any open case or unresolved criminal matter on any of these charges
We have directly heard from drivers who have lost their jobs due to failed background checks for:
- Multiple people with driving charges from 18-20 years ago, with a clean record since
- Very old assault or domestic violence charges in cases they thought were dismissed
- Suspended license charges that the person didn’t know about (due to some unpaid tickets), and got immediately corrected, but are still denied for 7 years.
In addition, a number of people got lease agreements directly through Uber or otherwise paid for a car specifically for this purpose, and are now unable to work and make their payments.
The background checks for drivers are now much stricter than in virtually any profession or for almost any private employer. It’s is tougher than for healthcare, education, security, and many other careers.
We spoke to a driver who was denied the clearance who is a pediatric nurse at a hospital. He passed all necessary background checks required by the hospital to look after vulnerable kids with medical issues. But because of a 25 year old Continuance Without a Finding on an assault and battery charge, in a domestic case involving a fight with a family member (a “violent crime”), he can’t moonlight for Uber.
Prior to the DPU taking over these checks, Uber and Lyft used the private service (chekr) for background checks, which was unable to see many if not most of these offenses in their screening access.
Can I appeal the background check failure?
There is an appeals process at the DPU/TNC but it is fairly limited. You cannot appeal to the DPU based on a dispute about information that appears on your CORI.
For that, you have to deal directly with the Office of the Commissioner of Probation, or the Probation department at the court where the charges were brought. Probation is responsible for in-state CORI record management and accuracy.
And you can’t appeal for failing to meet any of the precise disqualifying conditions on the list. If your license is temporarily suspended for a non-driving related incident, i.e. non-payment of a fine, and you are notified by the DPU that your background check clearance is revoked, you should be appeal to appeal once your license suspension issue is corrected at the RMV.
Also if your license was suspended for medical reasons, and not a criminal charge, that could be a legitimate appeal that DPU will hear.
Can these records be sealed?
No. Because of the unprecedented level of access this new agency has, record seals are basically irrelevant. A record seal will allow you to get your nursing certification, but not to use your car to sign up as a rideshare driver to drive people around in your free time and make a couple of extra bucks.
Is it really that strict? If someone has a reckless driving conviction, isn’t it fair that they should not drive?
It’s actually really easy to get a conviction for negligent operation (reckless driving), especially if you don’t want to pay for a lawyer, and don’t think the conviction will hurt you that much.
Here’s an example of an actual call we got on this:
A man was confused by some temporary traffic cones on the highway a couple of years ago. He said there were some cones missing and the signage was vague, and that he was supposed to be driving in that lane. The officer cited him for negligent operation, claiming he was driving too fast for the conditions around the cones.
He represented himself in court, was given a CWOF, did 3 months probation, paid some fees to a victims fund, and took a highway traffic safety course.
At no point was his driver’s license ever suspended.
Now, less than 2 years later, he gets a call from the Public Utilities agency saying he failed the background check and can no longer drive for Lyft or Uber in the Commonwealth until at least 2023.
Had he known at the time that this would destroy his employment, he might have made a different choice in court about agreeing to a CWOF in a case that was very likely beatable, since it was a fairly minor incident.
License Suspension Issues
The biggest category of failed background check reasons, is a license suspension for any reason within the last 7 years, 1640 rejections out of the over 8000 flagged.
But that is a broad category. You can get your license suspended for multiple traffic offenses, and subsequent non-payment of those tickets. You can also easily have not known that your license was suspended, due to a change of residence of failed notification, and then correct it as soon as you found out. But then you are still in that 7 year window of having had your license suspended. And if it’s on your CORI, then it’s not appealable. Even if it was a perfectly innocent mistake.
And some people get their license suspended because they got a few tickets they were too poor at the time to pay.
I’ve been hearing stories like this from deactivated ride-hail drivers for months https://t.co/4o59z5HKUf
— Jordan Graham (@jordanmgraham) April 6, 2017
— Iman Abdullah (@ImanAbu6) April 6, 2017
We are truly punishing people for being poor, even years in the past, and making it that much harder to ever dig out of that hole.
What is a CWOF exactly?
CWOF stands for “continuance without a finding”, or continuation without a finding. Under Massachusetts law, it is an “admission to sufficient facts” to find you guilty, but not strictly speaking, an admission of guilt. It mean that you accept that they could find me you guilty, but you don’t have to formally plead guilty. After the continuance period of the CWOF (usually 1 year or less), the incident does not show on a standard CORI background check to most employers or landlords.
CWOFs exist so that you can honestly say that you have not been convicted of a crime. A conviction can cause you problems on job applications or for other purposes. But any CWOF will still count as a prior offense if you are charged with a crime again, so it is not erased, or a free pass to commit more crimes. You can’t get a CWOF on a second offense, it’s a one time deal.
Should a CWOF count as a conviction on a background check?
That’s a question of the intent of the criminal justice system in agreeing to a CWOF, and the state legislature in creating this legal disposition.
But a CWOF has no meaning or purpose if it treated exactly the same as a guilty finding, and if it can can impact your life and your job exactly the same. It defeats the purpose of having a CWOF if it’s exactly the same as a guilty plea for these background checks.
For almost every other background check under CORI reform, a CWOF only shows up on your record to potential employers for the duration of the continuance period, usually 6 months to a year. But in this case it’s a 7 year issue for many minor charges, and a lifetime for others.
A CWOF in your criminal history is suddenly much worse than anyone ever thought it would be. But you can’t go back 5 or 7 years to fix a single incident (or decades for more than one) and reconsider your legal options in accepting that deal.
Is it easy to get a CWOF ?
Yes. People cut these deals all the time, even for cases that could probably be won if taken to trial. And for certain types of offenses like restraining order violations, even with weak facts over a trivial incident, the District Attorney will rarely agree to drop a case that probably never should have been charged.
We had an Uber driver call us about failing a background check for an old CWOF on a violation of a restraining order case. That CWOF deal, which I’m sure didn’t seem like a big deal to him at the time, will now prevent him from rideshare driving FOR LIFE. Because even a minor, non-violent, non-sexual mistake that ends in a CWOF on a restraining order is subject to a lifetime ban from driving for ridershare companies under this background check agreement.
Prosecutors fight hard against restraining order violation cases even in completely trivial situations where there is no evidence of malicious intent. No prosecutor wants to be lenient in dismissing a domestic case for fear of another case arising from the same defendant, and it later appearing that they let him off easy. DAs would rather lose in court at trial, or at least make the person accept a CWOF, so there is a record of the incident. And to the defendant, the consequences of a CWOF don’t seem that bad, since the alternative of taking a case to trial can cost a lot in legal fees, even for a trival case, and can take up to a year. So people accept these deals all the time.
So now we punish people for:
- not having the money or understanding to get a good lawyer to fight against a CWOF for what seemed like a minor issue at the time.
- not predicting the future that this would become a problem years later (and forever thereafter)
Multiple Serious Driving Offenses and the Lifetime Lookback
If you have more than one incident, then it is no longer a background check for the prior 7 years, but over your entire life. Even if it was just one incident with 2 charges that happened at the exact same time.
We got a call from someone who failed the background check for two CWOFs (OUI and driving to endanger) from eighteen years ago. Basically that means he got in an accident and was charged with drunk driving. Certainly, that sounds like a fairly serious incident. But, still, it was 18 years ago, and his record is completely clean since then.
When we represent clients on OUI charges, we very often get the extra charge dropped during the plea. Had we represented this man, there is a good chance he would have passed this background check.
But it’s not his fault that he possibly didn’t have the best lawyer eighteen years ago. And agreeing to a CWOF deal on 2 charges almost certainly didn’t matter to him at the time, because there was probably no extra penalty for essentially admitting to both charges.
And the entire point of a CWOF if that it is not supposed to follow you for life. If you don’t have any additional problems with the law, a CWOF plea fades into the background. That’s why they exist.
The lifetime lookback ban applies to any assault and battery with a “dangerous weapon” charge, no matter how minor.
Any conviction on a violent offense for which you take a CWOF or a guilty, and the maximum penalty for that offense is 10 years in prison means a lifetime ban. Assault and battery with a dangerous weapon is in that category.
Sure, assault with a dangerous weapon sounds bad, and often is. However, you can be charged with felony ABDW for kicking someone (a “shod food” is commonly classified a dangerous weapon), or throwing almost any object at someone. We know of someone who was charged with ABDW for throwing a wicker wastebasket toward someone (and missing, btw).
But if you get in a fight, and agree to take a CWOF on this charge, which is not uncommon, you are banned for life from driving. There is no appeal possible to explain the circumstances on a 20 year old charge.
I’m a current Lyft/Uber Driver (or thinking about driving) and I’ve got a criminal issue to be resolved. What should I do?
The fact that you have an open case is a problem, and if they run your record, as they are supposed to do bi-annually, they will presumably pull your eligibility to drive.
As far as working out a deal, you can’t accept a CWOF for the offenses listed above, or you won’t be able to keep that gig for 7 years.
So you need to make every effort to get a deal that is better than a CWOF. If you have a Clerk Magistrate’s hearing, you have a real opportunity to beat the case there, so it is almost certainly worth getting an experienced lawyer for your hearing.
If you lose the hearing, or you get a summons to an arraignment, or are arrested. There are other alternatives to convictions short of a CWOF that your attorney can fight for.
I failed my Uber / Lyft background check. What are my options?
Not much. The options in the appeals process are extremely limited. If your CORI is wrong, it should be possible to get that fixed.
But there is no way to clear up the issue with a record seal or expungement. Massachusetts doesn’t have an expungement law, and a record seal doesn’t change anything in this case, because the DPU background check access is high enough to look right through sealed records.
Two ridesharing companies/apps that currently ARE NOT part of this agreement with the state and subject to DPU backgrounds checks are
Fasten* and Safr. But if they gain marketshare, and the executives at those companies chose to buy in to the state demands, that can easily change. And Safr is the ridesharing app for women drivers and passengers, so it is safety focused.
*Update the Herald Reports that Fasten has opened in to the voluntary DPU rideshare driver background check system.
You can also apply for other on demand delivery jobs like GrubHub. Grubhub is an app driven food delivery service.
Grubhub does do background checks, but they aren’t run through the State, so many things that would disqualify you won’t even show up on one of these searches, like an older CWOF. And they also have an internal appeal process. I asked Grubhub about this, and they said:
Having some sort of infraction on your record does not automatically disqualify you from becoming a driver. If something comes up one of our compliance specialists will be reaching out to you to get the full story.
Other alternative sites that do on demand deliveries include Postmates, DoorDash, and Instacart. And some will argue that these jobs offer advantages over the rideshare gigs.
UberEATS also launched in Boston on 4/27/17. Since it is a different app and business model, the driver background check model may not apply, but we don’t have official confirmation of that as yet.
What’s the equivalent of a CWOF in “other jurisdictions”?
Good question, we don’t know exactly. Yes, all the offenses in these background checks apply in all other jurisdictions, i.e. other states. But when the background checks are looking other states, what is going to pop up? We don’t know.
“CWOF” is a Massachusetts specific term, because we love to make up our own acronyms for criminal charges here. (Almost no one else uses “OUI” for drunk driving).
Other state’s commonly use terms like “nolle prose” or “Nolle prosequi”, for “will no longer prosecute”, which is similar in that you can be theoretically retried for the offense if you violate the terms of the agreement within a certain amount of time. It’s a dismissal “without prejudice”, meaning, it can still be refiled and come back.
What’s the equivalent of a “Habitual Traffic Offender” in other states?
Who knows. That’s another Massachusetts specific designation that is open to interpretation, and used differently in other states with different standards.
With both of these issues, we don’t know exactly what something on an out of state record might look like to the person at the DPU looking at the data.
Why is the Massachusetts Department of Public Utilities overseeing background checks for private companies?
That’s a good question. A bill was signed creating a new DPU office called the Transportation Network Company Division (TNC) in August. This new department does the background checks and oversees these companies. The Mass DPU’s normal purview is traditional utilities like power and gas.
Funding of this agency is from the rideshare companies paying 20 cents per ride to pay for it.
The interesting and troubling implication of the agency doing the background checks is that they have an extremely high level of access. Under CORI reform, few private companies would ever be able to see a CWOF from more than 5 years ago, but those are routinely disqualifying for someone who you want to drive you across town.
What are the long term implications of government run background checks for private companies?
We don’t know, but they could be chilling. Essentially any future “gig economy” employer could end up being regulated by a DPU agency, or simply have to submit to their background check standards by law. Or any private employer, really.
It’s easy to imagine a strict background check being required if you want to rent out your place through Airbnb.
And working out a deal for a CWOF for a minor criminal offense used to be a pretty good deal for most people. Now, maybe it isn’t. It’s a problem for this exact employment background check, and we don’t know if it could be expanded into other job requirements, now that the president is set.
More press and further reading