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Introduction to International Screening

by Lester S. Rosen

Employers have long recognized that conducting due diligence on new hires is a mission critical task. Firms cannot afford to be sidetracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers can be the subject of lawsuits for negligent hiring if they hire someone that they should have known, through the exercise of due diligence, was dangerous, unfit or unqualified.

However, with the mobility of workers across international borders it is no longer adequate to conduct these checks just in the United States. A 2000 government study shows that 11.5% of the population consists of immigrants. In addition, an increasing number of workers have spent part of their professional career abroad. The number of countries from which employers seek additional information about applicants is expansive, and includes India, China, Philippines, France, Germany, Russia, Brazil, Mexico, Australia, Japan, Canada, among others.

International Background Screening Perceived As Difficult
Because of the perceived difficulty in performing international employment screening, some employers have not attempted to verify international credentials or to perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer from their due diligence obligation.

Nor can employers simply assume that the U.S. government has conducted background checks if the worker was issued a visa. After the events of 9/11, the U.S. has increased checks on foreign visitors and on workers on government "watch lists." However, the government checks are generally not aimed at verifying a credential or checking for criminal records for employment purposes.

To exercise due diligence in hiring, employers should consider screening internationally for criminal records, employment, education, and publicly available terrorist lists.

Criminal Records
When it comes to criminal records, each and every country is completely different. The availability of public records that is taken for granted here in the United States is often times not available abroad. In some countries, records are available at the courthouse, similar to how criminal records are obtained in the US. In other countries, records can be obtained from a police agency. In some countries, the best course is to have the applicant obtain their own certificate of good conduct from their local police station.

For criminal records searches, it is important to know exactly where the person has lived to ensure you are searching the appropriate court. Keep in mind also that that turnaround time for international criminal searches takes longer than domestic searches. Different countries also have different rules on the level of searches, but in most countries it is possible to obtain information of offenses that are at the felony level.

Another concern is name variations. Many countries have naming convention that is different then the US, such as the use of the mother's name. Complications can also arise for applicants whose name is based on a non-English alphabet, such as Chinese, Arabic or Japanese. There are numerous ways that such names can be translated into English.

Privacy and data protection is another crucial issue. For example, the European Union has passed strong privacy rules affecting how personal data can be obtained and utilized. U.S. background firms that do international searches should be a member of the U.S. Department of Commerce Safe Harbor program, which demonstrates a commitment to the E.U. privacy and data protection rules.

Education
Verification of an educational degree earned abroad is critical to verify credentials and to avoid fraud. An employer needs to determine if an applicant in fact attended the school claimed and received the degree claimed. Statistics show that education fraud can run as high as 20%. The employer also needs to determine if the school is accredited and authentic. The world is awash with phony schools and worthless diplomas. If the employer is not familiar with a school, they should conduct their own research. A legitimate school will often have an e-mail address or phone number so that they can be contacted to verify a degree.

Employment
Foreign employment can also be verified by contacting the employer even though they are in a foreign country. Often such calls will be made in the middle of the night due to time differences. The critical step is to obtain as much information about the past employer as possible from the applicant. If the employer does not speak English, an interpreter may be needed.

Terrorist Lists
Other due diligence tools are the various terrorist databases available to the public, such as the Office of Foreign Assets Control ("OFAC") list maintained by the U.S. Department of the Treasury. Such lists are readily available but there are limitations as well, such as working with name matches only when no additional details are available. To locate a list of web sites containing publicly available lists, and for more information on international background checks, go to: www.esrcheck.com/international.php.

Lester S. Rosen is an attorney at law and President of Employment Screening Resources (www.ESRcheck.com), a national background screening company headquartered in Novato, California. He is the author of, The Safe Hiring Manual--Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace (512 pages-Facts on Demand Press), the first comprehensive book on employment screening. He is a frequent speaker nationwide on pre-employment screening and safe hiring issues. He was the first co-chairman of the National Association of Professional Background Screeners (NAPBS), the organization for the background screening industry.

(c)2008 Lester S.Rosen

Only in California: The Strange Saga of AB 655--Critical New Rules Affecting Safe Hiring in California

According to BRB Publications Inc,
"CA Governor Davis recently signed into law two bills, AB 1068 and AB 2868. These bills substantially amend the ill-conceived AB 655 regarding pre-employment screening and employee investigation in CA. ...

Much of the credit for simplifying the law goes to Employment Screening Resources (ESR) president Les Rosen. Mr. Rosen testified before the state legislature on why California employers needed the law to change and he worked with the author of the bills in Sacramento to draft the clean-up language. Below is a summary of the major points covered by these new laws. "  . See>>>

By Les Rosen, Employment Screening Resources (ESR)
Taken from article prepared for the October 2002 edition of the Northern California Human Resources Association (NCHRA) Bulletin.  Reprinted in HR.com.

The need for Human Resources professionals in California to keep a close eye on Sacramento was never demonstrated as clearly than by the strange saga of AB 655. That was a well-intended identity theft bill that went into effect this year largely unnoticed and wreaked havoc on California employers because of unintended consequences. Among other things, the law impacted reference checking and in-house investigations and required employers to provide all background reports to applicants.

The good news is that the “clean-up” bills passed this year show how HR professionals can effectively work with legislators to make positive changes. Thanks to the efforts of Assemblyman Ronald Wright and his staff (who authored AB 655), two clean-up bills, AB 1068 and AB 2868, were passed unanimously by the California legislature and were signed by the Governor on September 28, 2002. Because the bills contained urgency clauses, they would go into effect immediately.

AB 655 was part of an effort to protect against identity theft. The bill amended the California Investigative Consumer Reporting Act (Civil Code Section 1786 et seq.), the law that governs pre-employment background screening in California. The legislature expressed concern that identity theft had become the fastest growing white-collar crime in America and that providing pre-employment background reports to applicants would help people to protect themselves sooner.

Another factor behind AB 655 was the concern of privacy advocates that employers could conduct their own in-house background investigations without any regulation by the federal Fair Credit Reporting Act (FCRA) or state law. Before AB 655, an employer had no obligation to inform an applicant that the employer found a criminal record when not using a background screening service. This loophole has lead to documented cases of people being blacklisted because of incorrect records. AB 655 closed that loophole by requiring employers who do in-house investigations to provide certain notices to applicants.

However, the plain language of AB 655 appeared to place an onerous burden on employers. Employers were placed under the obligation to provide to all applicants any information obtained about them as part of the hiring process, including past employment verifications and references. The law went beyond just providing criminal convictions or matters of public record. According to Civil Code 1786.53, all information had to be provided at either the first meeting or interview between the employer and applicant or within seven days, whichever was sooner.

This new burden created a nearly impossible task. The physical process of hiring, especially for larger organizations with hiring managers and multiple locations, made it nearly impossible to comply. In addition, it added a new barrier to the already difficult task of obtaining employment references. It also made it more difficult for employers to conduct internal investigations of employees suspected of misconduct or wrongdoing.

The law contained other requirements as well. Any employer who obtained a background report had to provide a copy of the report to the applicant. Some law firms took the position that this task had to be performed by the employer and could not be outsourced to a screening firm. AB 655 imposed additional requirements on disclosure forms to applicants that required employers to certify to background firms that they would comply with California law and mandated a cover sheet on background reports. AB 655 also contained substantial damages that could be awarded to a consumer against an employer or background firm that failed to comply with the new rules.

After Assemblyman Wright and his staff were made aware of the unintended consequences of AB 655, they immediately took up the difficult task of gathering opinions from various parties and crafting new legislation that addressed various concerns. They received input from employers, labor lawyers, HR and security professionals, staffing firms, background experts, and other groups that were affected. Assemblyman Wright and his staff then successfully shepherded the “clean-up” through the legislature.

California’s Human Resources Associations also played a key role in the effort. With the support and assistance of the NCHRA Legislative Action Committee (LAC), the author of this article was very involved in working directly with Assemblyman Wright’s office and assisted in drafting some of the language in the new bills, as well as testifying before the state legislature on behalf of the NCHRA as to why California employers needed these amendments. There were also significant efforts by representatives of PIHRA.

Some of the more important changes in the clean-up legislation for employers and HR professionals are:

1. References: The new law clarifies that under Civil Code section 1786.53 in-house references obtained by an employer DO NOT have to be turned over to applicants. Under AB 1068, an employer would have to turn over any public records, such as criminal convictions, that it found on its own, but not reference checks.

2. Providing Reports to Applicants: Based in part upon a proposal from the author of the article, the law no longer requires employers to provide every background report to each applicant. Instead, each applicant will have the ability to check off a box on a disclosure sheet and have a background-screening firm send the report directly to the applicant. A similar rule already exists in California for credit reports.

3. Special Cover Sheet: The law revises the rules about a special cover sheet. A screening firm is allowed to post the required notice on the first page of the report instead.

4. Employee Investigations: There is also language in new section 1786.55 that clarifies that the new law is not intended to modify existing law concerning internal investigations of current employees suspected of misconduct or wrongdoing (except for obtaining public records) or employer reference checking. However, the federal FCRA still applies to investigations by third parties.

5. Limitations on “do-it-yourself” investigations: If an employer does their own investigation of an applicant or current employee without using the services of a background-screening provider and collects public records such as criminal records, there are new rules that are in effect. Any information must be turned over to the applicant/employee within seven days unless the employer suspects misconduct or wrongdoing in which case supplying the information may be delayed. In addition, an employer who uses this procedure must provide a form to all applicants/employees with a box that, if checked, permits a person to waive the right to receive the copy of any public record. If the investigation results in an adverse action, there are additional requirements as well. This procedure is only in effect if an employer does its own investigation.

6. Limitation on Criminal Record Searches: The new law retains the seven (7) year limitation on a background-screening firm obtaining criminal records. However, the new law clarifies that there is an exception for employers that are required by a governmental agency to go back further when checking qualifications. This addresses a conflict between California law and situations where certain employers are required to go back further in some cases.

7. Employer forms used for background screening: Employers that utilize the services of a background screening firm should have received, a revised certification form shortly after AB 655 was effective that is required of all California employers as well as a revised Disclosure from that applicants must receive. Because of the changes in the law, employers should receive a new set of forms reflecting the new requirements.

As employers and HR professionals begin to deal with the new laws, there will undoubtedly be issues raised. However, this article is intended as a general introduction and not legal advice. For more information, contact Employment Screening Resources at 888-999-4474 or visit our web site at www.ESRcheck.com or e-mail us at esr@esrcheck.com

Lester S. Rosen is an attorney at law and President of Employment Screening Resources (ESR), a national background screening company located in California. He is a consultant, writer, and frequent presenter on pre-employment screening and safe hiring issues. He is a certified specialist in criminal law in California, a former deputy District Attorney and defense attorney and has taught criminal law and procedure at the University of California Hastings College of the Law. His jury trials have included murder, death penalty, and federal cases. He graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis serving on the Law Review. He has qualified and testified in court as an expert in the area of safe hiring and pre-employment background screening. Email: lsr@ESRcheck.com