Driver’s rape case reignites back­ground check de­bate

All screen­ing poli­cies for ride-hail­ing firms have flaws, some ex­perts say.

Austin American-Statesman - - FRONT PAGE - By Se­bas­tian Her­rera sher­rera@states­man.com

When Os­mani Li­monta Diaz ap­plied to be­come a driver for ride-hail­ing non­profit RideAustin, his crim­i­nal record looked clean. It gave no sign of the le­gal trou­ble he faces now.

Diaz is ac­cused of rap­ing a fe­male pas­sen­ger while work­ing for RideAustin on June 10. He was for­mally charged on Oct. 13. Diaz, how­ever, had passed fin­ger­print- and So­cial Se­cu­rity num­ber-based back­ground checks be­fore be­ing hired as a RideAustin driver, the non­profit said.

The ac­cu­sa­tions against him have reignited a de­bate about how ride-hail­ing en­ti­ties such as

RideAustin, Uber and Lyft con­duct back­ground screen­ings for their driv­ers.

Some ex­perts say there are is­sues with the re­li­a­bil­ity of all back­ground screen­ing pro­ce­dures — even fin­ger­print-based screen­ings.

“Em­ploy­ers should be very dis­sat­is­fied with the cur­rent state of back­ground check op­tions,” said Sarah Lage­son, an as­sis­tant pro­fes­sor and re­searcher at the Rut­gers Univer­sity-Ne­wark School of Crim­i­nal Jus­tice.

Last year, Uber and Lyft lost a costly bat­tle with the city over an or­di­nance that re­quired ride-hail­ing com­pa­nies to use fin­ger­print-based back­ground checks on their driv­ers — a rule both com­pa­nies op­posed. In a May 7, 2016, spe­cial elec­tion, Austin vot­ers sided with the city. Both Uber and Lyft ended ser­vice in Austin city lim­its a few days later.

The two com­pa­nies re­turned May 29 of this year af­ter the state su­per­seded Austin’s or­di­nance with a state law that al­lows ride-hail­ing firms to op­er­ate with­out con­duct­ing fin­ger­print-based back­ground checks.

RideAustin, though, has con­tin­ued to use the more thor­ough fin­ger­print-based checks, which ex­am­ine crim­i­nal records col­lected by the FBI.

“There is noth­ing else we could have done in ad­vance to weed this driver out, or we would have,” RideAustin CEO Andy Tryba said.

Tryba said he learned of the rape al­le­ga­tions against Diaz from an Austin po­lice de­tec­tive two or three weeks af­ter the al­leged in­ci­dent. Tryba said RideAustin im­me­di­ately sus­pended Diaz, and then per­ma­nently ter­mi­nated him af­ter for­mal charges were filed.

Diaz, who has a court hear­ing sched­uled for Nov. 28, has de­nied the ac­cu­sa­tions against him.

“I am a pas­sion­ate be­liever that the checks that (ride-hail­ing com­pa­nies) do as an in­dus­try as far as track­ing is a very safe way and in­tel­li­gent way for peo­ple to be tak­ing rides,” Tryba said.

Flaws in the sys­tem

While fin­ger­print-based back­ground checks are con­sid­ered the best pre-em­ploy­ment screen­ing com­pa­nies can per­form, re­search has found flaws in the sys­tem.

A 2013 re­port by work­ers’ rights or­ga­ni­za­tion the Na­tional Em­ploy­ment Law Project, for ex­am­ple, found that roughly 1.8 mil­lion work­ers per year un­der­went FBI back­ground checks that in­cluded faulty or in­com­plete in­for­ma­tion, though many cases in­volved wrong in­for­ma­tion that hurt a job can­di­date, such as a dropped charge that was still listed as ac­tive on a re­port.

The study also says nearly half of FBI back­ground re­ports fail to in­clude in­for­ma­tion on the fi­nal out­come of a case.

The So­ci­ety for Hu­man Re­source Man­age­ment, which tracks work­place is­sues, also re­ported last year that FBI records can at times be weeks or months out of date. The or­ga­ni­za­tion used data from Ster­ling-Backcheck, a New York­based back­ground screen­ing com­pany.

“There are a ton of doc­u­mented is­sues with in­ac­cu­ra­cies” re­gard­ing FBI back­ground checks, Lage­son said. “Even the com­pa­nies that pay for it, they don’t al­ways up­date their records.

“The FBI has a dif­fer­ent re­la­tion­ship with each state, so things can get lost in the cracks.”

Aside from that, the poli­cies that gov­ern ride-hail­ing firms in Austin are dif­fer­ent from the rules that taxi com­pa­nies here abide by.

All taxi driv­ers in Austin are re­quired to un­dergo fin­ger­print-based back­ground checks, and they also have to ob­tain a chauf­feur’s per­mit, which al­lows the city to track real-time crim­i­nal records in­volv­ing a driver. Taxi driv­ers also must dis­play an iden­ti­fi­ca­tion plate in­side the cab.

At the same time, Austin al­lows driv­ers who have been con­victed of se­ri­ous crimes, such as fraud, theft and sex­ual as­sault, to ap­ply for a chauf­feur’s li­cense as long as those driv­ers show “proof that the ap­pli­cant has main­tained a record of good con­duct and steady em­ploy­ment since re­lease” and has paid all le­gal fees, ac­cord­ing to the city code.

While ev­ery com­pany has dif­fer­ent back­ground screen­ing poli­cies, all are re­quired to fol­low guide­lines from the U.S. Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, which en­forces nondis­crim­i­na­tory poli­cies and rules about job can­di­dates’ rights to know if they are hav­ing their back­ground checked.

“The bur­den mostly falls on the state to main­tain ac­cu­rate records,” Lage­son said. “Hav­ing more trans­parency over how crim­i­nal back­ground checks are as­sem­bled and dis­sem­i­nated — and keep­ing it within gov­ern­ment, not through cor­po­rate third par­ties — will lead to bet­ter in­for­ma­tion for em­ploy­ers.”

‘Vol­un­tary adop­tion’

De­spite the po­ten­tial flaws with fin­ger­print-based back­ground screen­ings, some in Austin’s city gov­ern­ment say that re­mains the best cur­rent op­tion — and that all ride-hail­ing com­pa­nies would be wise to use that as stan­dard pro­ce­dure.

Austin City Coun­cil Mem­ber Kathie Tovo said she en­cour­ages ride-hail­ing com­pa­nies to do the most they can in screen­ing driv­ers.

“While in­ci­dents such as this one (the al­le­ga­tions against Diaz) demon­strate that crim­i­nal back­ground checks can­not al­ways pre­vent vi­o­lent crimes, I sup­port RideAustin’s use of bio­met­ric back­ground checks to en­sure a higher level of scru­tiny than state law now re­quires,” Tovo said in an email to the Amer­i­can-States­man.

“I hope that we see other trans­porta­tion net­work com­pa­nies move to­ward vol­un­tary adop­tion of such mea­sures.”

Though RideAustin uses the more thor­ough back­ground checks, the non­profit said it con­tin­ues to ex­am­ine its in­ter­nal prac­tices to see what changes, if any, need to be made to im­prove safety mea­sures, Tryba said.

Ad­di­tion­ally, Tryba and other ride-hail­ing rep­re­sen­ta­tives said their or­ga­ni­za­tions reg­u­larly re­view rat­ings and com­ments left by pas­sen­gers and some­times tem­po­rar­ily or per­ma­nently sus­pend driv­ers based on that in­for­ma­tion. Tryba did not say whether the woman who ac­cused Diaz of rape com­plained through the RideAustin phone app af­ter the al­leged in­ci­dent.

Tryba said RideAustin is also ex­am­in­ing whether to re­quire its driv­ers to ob­tain a chauf­feur’s li­cense, a mea­sure Tryba said RideAustin was ex­plor­ing be­fore the al­le­ga­tions against Diaz. RideAustin also wants to pro­mote its other safety fea­tures, he said, such as a ser­vice in which cus­tomers can re­quest a ride from only fe­male driv­ers.

“I be­lieve that RideAustin went over and above to not only co­op­er­ate with the in­ves­ti­ga­tion but also take proac­tive stances while the in­ves­ti­ga­tion was go­ing on,” Tryba said. “I also be­lieve we have se­cu­rity fea­tures that are un­par­al­leled to the ride-hail­ing in­dus­try.”

Os­mani Li­monta Diaz had passed back­ground checks be­fore be­ing hired.

RI­CARDO B. BRAZZIELL / AMER­I­CAN-STATES­MAN

Os­mani Li­monta Diaz, a for­mer RideAustin driver ac­cused of rap­ing a pas­sen­ger on June 10, is led out of Judge Clif­ford Brown’s 147th Dis­trict court­room on Nov. 3 with his at­tor­ney, Julie Pen­ning­ton.

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