Media Coverage Affecting Career.

The consequences of media coverage, including both online and offline coverage, are highly dependent on various factors. These include, but are not limited to, the industry involved, the jurisdiction in which you practice, the nature of the federal charges or allegations, the case’s ultimate disposition (i.e., the manner in which the case was resolved), and the extent of your exposure.

Many individuals affected by federal prosecution or federal investigations are concerned with the implications of media coverage for their professional license and/or their ability to remain in their current position. In some cases, an individual may maintain their professional license and still face consequences in the private sector, as private employers may impose their own standard for continuing employment. In other cases, media coverage may lead to reputational concerns that are wholly independent of any legal consequences. These concerns can often be the result of the perception generated by media reports, rather than any underlying allegations or the actual resolution of the case.

Importantly, pending charges are merely allegations, and they should not be conflated with adjudicated findings of criminal guilt. While employers should be fully aware of this fact, it may still be important to engage in outreach or damage-control measures to avoid any negative determinations. While some employers may not view pending allegations in the same light as convictions, other employers may view pending allegations and dismissed charges as important factors to be taken into consideration when making personnel decisions. Employers may take these factors into consideration in conjunction with other factors that are known to them.

What May Employers Learn from News Coverage, Background Searches, and Criminal-History Questions?

While some states have adopted “ban-the-box” rules, which prohibit employers from inquiring about criminal history on an application, these rules differ by jurisdiction. In some cases, arrests are not covered by these rules; and in other cases, the rules only apply to public employers (i.e., government entities). Additionally, while some states impose “ban-the-box” rules that are quite extensive, others impose rules that are narrowly tailored to apply in very limited circumstances.

In California, for example, employers are generally prohibited from inquiring about an applicant’s criminal history prior to making a conditional offer of employment. Importantly, California employers are also prohibited from adopting blanket policies against hiring individuals with criminal convictions, and instead must generally conduct an individualized assessment before making any adverse decision. Similarly, Illinois law imposes restrictions on when many employers may inquire about criminal history.

In addition to “ban-the-box” rules, the extent of any state-imposed reporting limits may depend on whether an employer is located in the state, what specific law applies to the employer, and other factors.

While any criminal-history inquiry will be subject to the law, an employer’s internet search may result in a completely different level of insight. Media reports may become an employer’s primary source of information regarding an individual’s background or an individual’s prior involvement with federal law enforcement, and the information revealed may, in some cases, inform the employer’s decision not to present an application, seek further information, or extend a conditional offer. Thus, even in states that have adopted “ban-the-box” rules, media coverage can have its own set of potential implications for an individual’s employment opportunities.

When Must a Federal Case Be Disclosed to a Licensing Board, Securities Employer, or Healthcare Program?

Licensed professionals subject to state licensing boards can face professional disciplinary proceedings in addition to facing federal criminal charges. These proceedings are often initiated independently of federal law enforcement intervention, and they can depend on a wide range of factors.

Individuals who work in the financial services industry may have additional disclosure obligations that are independent of media coverage. For example, many securities professionals are subject to the reporting requirements established under the Financial Industry Regulatory Authority (FINRA). If an individual is already the subject of a filed FINRA Form U4, the individual and the firm generally must ensure that the Form U4 is amended within thirty days after learning of reportable information.

The fact that an individual has not yet been convicted of a crime, and the fact that they should not be presumed guilty based on the contents of a media report, does not mean that a securities professional does not have reporting obligations. The extent to which an individual must disclose or amend information on FINRA Form U4 depends on the specific language in question. With this in mind, if you are subject to a FINRA Form U4, it is imperative to review your obligations in light of any pending federal prosecution.

For professionals in the healthcare industry, the Office of Inspector General (OIG) exclusion list may present an additional area of concern. Rather than determining whether an individual is eligible to practice in a particular profession, OIG’s exclusion list determines whether an individual or entity is eligible to participate in federally funded healthcare programs. If you are concerned about the implications of media coverage on your ability to practice, these are among the potential issues that need to be addressed.

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How Do Pending Charges and Media Publicity Affect Security Clearances and the Criminal Case?

When assessing security clearances, the federal government conducts comprehensive investigations and does not rely on news coverage alone. For example, security clearance determinations made under 10 C.F.R. Part 10 concern eligibility for access to Restricted Data or National Security Information or for an employment clearance, using specified criteria such as criminal conduct, mental conditions, alcohol use, and reliability or trustworthiness. Adjudicative determinations are subject to review under the National Security Adjudicative Guidelines promulgated by the Defense Counterintelligence and Security Agency (DCSA) (which replaced the Defense Security Service), and they are subject to procedural review in certain cases. If you are facing challenges related to your security clearance, it is important to consult with an attorney who can help you understand what steps may be necessary to address your specific situation.

Regarding the criminal case itself, public statements, including those made on social media, can have the potential to provide federal prosecutors with evidence, materials for cross-examination, and other opportunities to undermine the defense. Even though you may be hesitant to believe that anything you have posted is being preserved, prosecutors will go to great lengths to ensure that they can seek and subpoena information such as emails, text messages, and telephone records. Furthermore, prosecutors may seek to use a public statement against you at trial, even if it is out of context. In light of these concerns, it is important to consult with an attorney who can help you determine how to best protect yourself and make informed decisions moving forward.

What Can You Challenge When Coverage or an Employment Screening Report Is Inaccurate or Damaging?

The Fair Credit Reporting Act (FCRA) governs a variety of matters when individuals receive reports from consumer-reporting agencies. While most commonly discussed in the context of credit reports, the FCRA also applies to “employment reports” and “investigative consumer reports” that are prepared by consumer-reporting agencies in order to determine an individual’s qualifications for employment.

While there are potential opportunities for dispute resolution, it is important to recognize that disputes under the FCRA are limited to cases where information is incomplete or inaccurate. This means that disputes are not available to challenge information that is unfavorable but that the report’s preparers can reasonably show to be accurate. When an individual affirmatively disputes information with a consumer-reporting agency that qualifies as “incomplete” or “inaccurate” under the FCRA, the agency generally has thirty days to investigate the validity of the information. At the conclusion of its investigation, the consumer-reporting agency must correct the information if it is inaccurate or otherwise make sure that it will not be included in any future report.

Along with placing obligations on consumer-reporting agencies and other types of companies and agencies, the FCRA also places obligations on employers. For example, in most circumstances, employers must provide certain notices before using any consumer report information as a factor when making an adverse employment decision.

With regard to news coverage, while there are various options for those who believe that they are being depicted in a misleading or defamatory light, options for news publications may depend on a variety of factors, including whether the publication’s report is factually inaccurate. For example, accurate reporting of criminal allegations is not automatically removable from a news publication. In any event, those who are concerned about their reputations should reach out to an attorney as soon as possible.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.