The Ongoing update page for the:

The Safe Hiring Manual--the Complete Guide to Keeping Criminals, Terrorists and Imposters out of your Workplace

Welcome to the ongoing update page for the Safe Hiring Manual.

 (September 2007 re-printing)

A couple of years ago, there was a news story about a California hospital that outsourced its medical transcribing, and the work ended up in Pakistan. A medical transcriber in Pakistan got into a dispute with her employer about wages and threatened to publish the medical records of thousands of Americans on the Internet. Needless to say, the hospital suffered through a great deal of negative publicity, and the privacy and confidentially of medial records for numerous Americans were endangered because their personal information was sent-offshore beyond the reach of U.S. privacy laws. Of course, even after the matter was settled with appropriate payments, no one knows for sure what information the off-shore worker may have decided to keep or for what reason.

Background firms that send Personally Identifiable Information (PII) offshore for processing could find themselves in the same boat. When a background-screening firm does an international verification of employment or education by sending PII such as a copy of a diploma or passport to an offshore agent, that background firm is playing Russian Roulette with its reputation and the financial repercussions that can occur from a data breech. The offshore agent is completely beyond U.S. Privacy rules and there is little control over what they do with the information. As the California hospital found out, sending private data abroad for processing is risky business

 Home Operators

It is difficult to believe, but even as the information and screening industry is under intense public and Congressional scrutiny for failure to protect confidential and personal consumer data, there are still screening firms that routinely send consumer data to at-home workers to perform employment and education verifications.  These home workers are generally unregulated and unsupervised and have complete access to private consumer data in a completely unsecured environment.   

Screening firms that utilize at-home operators to save money must ask themselves some questions to determine if it is really worth the perceived cost savings to risk their reputation, lawsuits and other fall-outs from using unregulated home workers. For example:

1. Would a screening firm be willing to reveal to their clients that consumer data was being sent to private homes, and that verifications were being done by unsupervised home workers in an unsecured environment?
2. Would a screening firm want to answer questions from reporters or FTC or Congressional investigators about their data privacy and protection practices in view of the fact that data is sent into private homes unregulated? 
3. What defenses would a screening firm use in jury trial, if sued for data theft (or even worse if the data is used to stalk or harm a consumer) due to unsupervised and unregulated home workers, other then it seemed like a good way to save money.

What is even worse is that in reality, the use of at-home operator may not even have the cost-savings advantages hoped for, and can in fact be a detrimental factor to the growth of a screening firm.

Some of the issues with at-home operators include:

Privacy concerns
In order to accomplish the work, the home operator is usually given the applicant’s data of birth and social security number. If data is stolen or misused by at-home workers, there is very little legal defense for a Consumer Reporting Agency (CRA).  Since the operators are at home and beyond any supervision, a CRA has very little control over what happens to the data.  Not only is there the potential for direct miss-use or theft of the data, but a CRA has no idea who is going in or out of the operator's home, what information is being left laying around on the kitchen table, what is being left on the computer, how passwords are protected if there is a computer system, who has access to the operators computer or a host of other risk factors.  

Security There are security issues with at home operators.  For example, the CRA does not know who is accessing the computer system, making the calls, entering data or if calls are even being made.  A certain amount of auditing may reveal some abuse eventually, but not until the damage is done.

Training
Another vital issue is standardized training across all operators. With at-home workers, training is extremely difficult to conduct.    In addition, since operators are working in isolation at home, the opportunity to catch and correct errors timely is lost.  Nor can at home operators have the opportunity to learn from each other and develop additional expertise by interacting with co-workers to develop additional expertise.  

Supervision and Quality Control
With at-home operators, it is difficult to implement quality control.   There is nothing to prevent an at-home operator from just closing the orders or even "faking" data just to get a complete.  Since the CRA does not know how much time the at-home operator spent on the phone, there is no way to run routine cross-checks or productivity reports that helps to assure quality control. 

Real-time status updates
In a typical home worker situation, the worker is given a list of verifications to perform, and certain work rules. However, until the verification is complete, the CRA does not have status, nor can the CRA tell exactly who was called, when the call was made and the current status.

Due Diligence
The use of at-home operators raises significant legal concerns if a CRA is the subject of a lawsuit because of the reference process.  A CRA could be sued if an at-home operator performs negligently, fakes a completion, steals data or uses the information to commit some violent crime against a consumer. A CRA would be a sitting duck in a lawsuit. 

Uniform procedures across the organization
A recurring problem is whether verifications adhere to firm wide standards with unsupervised operator dealing with verifications at home. Ideally, a CRA should have consistent work rules in effect, such as the number of hard touches and soft touches that must be done per day, or before an order is closed. This becomes very difficult to enforce with operators spread out a homes across the country.

Standard of professionalism
Most CRA’s advertise in their marketing materials and web site that they are “professionals” providing a valuable service. The use of unsupervised and unregulated home workers as a cheap substitute for what is suppose to be a professional service can be inconsistent with the marketing message.

FCRA Compliance
An argument can be made that the use of unsupervised and unregulated at-home workers is also not defensible under FCRA sections 607(b) concerning reasonable procedures for accuracy. 

b) Accuracy of report. Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

The irony of course it that in reality, firms that use home worker to gain an economic advantage may not really get what they pay for. The true cost of at-home workers is probably more expensive then a screening firm assumes.

 Chapter 10, page 174 discusses that there is no one definition of a a background check.  Here is some additional information:

 Chapter 11, page 176

New Study: Background Screening Reduces Discrimination in Employment

According to a press release issued by the University of Chicago on Nov 21, 2006, a new study found that employers who performed background checks ended up hiring more black workers, especially black men. The reason, according to the study? In the absence of a criminal background check, some employers may use race to infer past criminal activity. A survey of 3,000 establishments in some major American cities found that employers who are averse to hiring ex-offenders were the most likely to statistically discriminate.

The bottom-line: Criminal background checks can actually help prevent discrimination by proving applicants do not have criminal records, and thereby overcoming assumptions employers may make. Making criminal records harder to obtain can have the unintended consequence of harming law-abiding citizens. According to the authors of the study, “curtaining access to criminal history records may actually harm more people than it helps and aggravates racial difference in labor market outcomes.”

The article is, Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers. Journal of Law and Economics: 49:2 (Authors: Harry J. Hold, Steven Raphael and Michael A Stoll) 

Chapter 11, page 179 concerns "Non-criminal" matters" 

Employers need to proceed with caution before utilizing “non-criminal” offense records. Some states, such as New York and New Jersey, have created categories of minor offenses that are specifically deemed to be “non-criminal.” Examples of such offenses can be traffic violations or violations related to “disturbing of the peace.” New Jersey has a system for “offenses,” which are typically brought in lower courts in order to expedite less serious matters. An expert in New Jersey criminal searches states that a “non-criminal” offense can be brought in over 500 municipal courts for offenses that do not exceed six months in custody. 

For the unsuspecting employer, this “non-criminal” case can cause complications. For example, assume a job candidate stated in their application that they have not been convicted of a crime. A background screening report reveals that they do have a court record for disorderly conduct, in a state that has labeled such a record as being “non-criminal.” In that case, an employer cannot assume that the applicant has been untruthful, since technically the applicant was not convicted of a crime. 

On the other hand, there is nothing that prevents an employer from utilizing information properly obtained that is a valid predictor or job performance, and non-discriminatory where state law has not prohibited the employer from considering it. The “non-criminal” disposition could have resulted from a more serious matter that may demonstrate behavior that is inconsistent with the job, such as violence. However, it is the underlying behavior that is being considered, and it can be difficult to discover the underlying factual basis of the “non-criminal” matter.

Most employers have questions in their application forms about past criminal convictions. Employers in states that have such non-criminal offenses may want to change the language on their application forms to include asking about “non-criminal offenses or violations,” provided there is no prohibition in their state about asking. Employers should contact their legal department or outside attorney to review their applications. Employers should also keep in mind that their applications should contain language advising applicants that a criminal conviction will not be used to automatically deny employment.

 Chapter 12, page 1898--How far back to go on a criminal search:

 Chapter 14--Education and Credentials

 URBAN Myth:  A current license means a person has not criminal record:

1. The system for a licensing board to discover a criminal conviction is far from perfect. Conviction data may not be sent to a licensing board immediately or at all. In addition, there can be a substantial lag time between the alleged criminal act, the arrest and the conviction. 
2. Even if the criminal conviction is discovered by the licensing board, the disciplinary process takes time. Unless the licensing board takes action to issue an immediate suspension, the licensee may be able to continue to practice while the administrative procedures drag on.
3. While the disciplinary action is pending, a licensee may simply move to another state and apply for a license, covering up the proceedings in the first state. In other word a licensee may try to “beat the discipline” before the new state finds out about it.
4. Even if a person is suspended in one state, an employer cannot assume that all state licensing boards share information with each other. As we discovered post 9/11, we do not live in a world where the government routinely collects and shares data with other governmental entities. 
5. There can even be situations where a person commits a crime that does not result in losing a license but is still important for an employer to know about. In fact, in some licensed occupations, a person may even get a “private” reprimand meaning that a check with the appropriate licensing board may not reveal anything. 

For a listing of the numerous state agencies that license occupations, see:   http://www.brbpub.com/pubrecsitesOccStates.asp

 Chapter 15 , page 242 under Databases: 

Question:  Should an employer utilize social networking sites to screen potential applicants, such as Facebook or MySpace.  What about Internet searches using search engines? 

Many employers have discovered what appears to be a treasure trove on the Internet when it comes to recruiting and hiring.  By using search engines and social networking sites, recruiters are often able to source candidate for positions.  In addition, there are many stories about employers using the Internet to pre-screen applicants.  One employer tells the story of recruiting for a high profile consulting firm.  The recruiter ran the applicant’s phone number on a search engine, only to discover that the applicant had a business on the side—an “adult”” service of a mature nature complete with revealing photos. That particular candidate was not hired. Another employer found out that a summer intern had bashed them on his social networking site web page. 

There are some things to consider however using the Internet for screening:

1. The first problem is often referred to as “TMI” or “too much information.”  What if an Internet search revealed prohibited information, such as ethnicity, national origin, sexual orientation, religious preference, or other factors that cannot be considered for employment?
2. Another issue is that the search of Facebook or MySpace may contain a photo, revealing personal characteristics or physical problems.  This can raise questions of discrimination as well.
3. Privacy is also a concern.  There is an assumption that just because something is online, it is fair game for any use.  However, sites such as Facebook or MySpace have “terms of use policies” that appear to limit the use of such sites to personal social networking.  A Facebook or MySpace user can argue that they had a reasonable expectation of privacy, in that only others who were interested in social networking would view their materials.   That is an issue yet to be decided by courts but can still represent a risk to employers.
4. Using private behavior for employment decisions can be problematic since some states have statutory protections in place for workers to limit consideration of off-duty conduct.
5.  Finally, how can an employer know for sure the online entry item actually belongs to the applicant and is not a fake or sham?  Cyberslamming by placing anonymous and defamatory statements in chartrooms or online discussion boards can ruin reputations

As a result of the issues, job applicants are well advised to monitor their online identity in the event an employer looks them up.  There are even websites dedicated to helping applicants protect themselves.   Some schools have even required that employers reveal if they do such online searches as a condition for recruiting at the school.

This is a developing new frontier for employers.  Employers may want to think through their policies before doing random web searches.   One alternative: get a specific consent from an applicant for an online search, and only do it after a conditional job offer has been made.  

Chapter 18, page 284-Additional information on the topic of continual screening:  

• False Sense of Security:  Since private employers generally do not have access to the FBI national criminal database, such ongoing screening programs are based upon running various proprietary criminal databases, and not by sending researchers to actual courthouses. AS discussed in chapter 12, these proprietary database are subject to a number of potential error factors. Employers must clearly understand that because of the nature of databases, the appearance of a person's name on a database is not an indication the person is a criminal any more than the absence of a name shows he/she is not a criminal. There are many reasons why a criminal would not appear on a database search. The danger is that an employer can develop a false sense of security because a database can “clear” a person who is, in fact, a criminal, or inaccurately label an employee as a criminal when they are not. 
• Consent Issue: In addition, employers must ensure that such searches are done with consent. In California for example, it is arguable that such continuous searches require a new consent each and every time it is done in order to comply with California state law. Another issue is whether an employer can legally not hire someone, or terminate someone, because they refuse to consent to ongoing criminal record checks. 
• What to do if a Record is Found and EEOC Considerations: If Human Resources conducts continuous criminal checking and finds a record, then the employer needs a written policy and procedure on how to respond to the information legally. Under the EEOC rules, a criminal record cannot be utilized to automatically terminate an employee without some business justification. There are also restrictions on the use of arrests. Employers need to exercise caution in how such records are utilized, and to determine what type of record may be relevant to employment.
• Impact on Workforce: Another issue is the impact on the workforce for checking on a bi-weekly or monthly basis to see if current employees have become crooks. There may be some industries where the risk factor justifies continuous checking. However, employers need to consider if such continuous checking is appropriate for their organization. 
• The bottom line: Although such continuous searches can be a valuable risk-management tool, an employer needs to address a number of issues. The employer also needs to understand the limitation to the searches and the issues surrounding the legal use of such data. In addition, if an employee commits an offense that is serious, an employer will be made aware an issue exists by the employee’s absence from work. One possible solution for employers considering continuous screening--—use a random pool similar to drug testing and perform searches at the actual courthouse.

 Chapter 21 page 336

Samples of fake international degrees coming soon!

Attorney Les Rosen, founder of Employment Screening Resources (ESR),  is the author of "The Safe Hiring Manual"--the leading and most comprehensive book on safe hiring and pre-employment background screening available today for employers, human resources and security professionals, attorneys and homeland security professionals. 

Facts on Demand Press /August 2004/ 512 pages

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