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February 2010 Vol. 10, No. 2
Most authorities agree that any information tending to reveal a job applicant's age should not be requested on an employer application form or during an oral interview. Asking for date of birth during the selection process could violate the federal Age Discrimination in Employment Act of 1967 as well as various state civil rights laws. Asking for date of birth tends to deter older applicants from applying.
If the application material contains date of birth information, the inference is that a firm may be methodically denying consideration of older workers. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving information that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Fair Employment and Housing (DFEH) lists specific age questions that cannot be asked. (See: http://www.esrcheck.com/services/legal_illegal_questions.php ).
However, special problems are faced when an applicant's date of birth is not available for background screening. When researching court records, the date of birth is probably the most important factor needed to identify an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.
Under the Federal Age Discrimination Act, there is not an absolute prohibition against asking for date of birth or age. That is a common misconception among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. However, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.
According to a Fact Sheet prepared by the EEOC in 2008: "Pre-Employment Inquiries:
The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA." See: http://www.eeoc.gov/facts/age.html
This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).
In order to avoid any liability for age discriminations, some employers send information to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a "date of birth workaround" where somehow the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It creates an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.
A better solution is to request date of birth information on the screening firm's form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring authority in order to avoid any suggestion that age information was used in any way during any step of the hiring process.
It is recommend that employers keep the screening forms and reports separate from the employee's personnel file or application papers. Employers can have someone in the office physically separate the screening firm's form from the application so there is no question that a decision maker has not viewed the date of birth before the applications are reviewed.
In addition, to further protect the employer, the consent form used by the screening company should have a statement that the information is used for identification only and that without such information the screening process may be delayed.
As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.
To address any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the appropriate local or state authority or federal EEOC office.
For more information on background checks and employee screening, see: Employment Screening Resources.
The fatal shootings of three University of Alabama-Huntsville professors during a faculty meeting by another professor reportedly upset about being denied tenure at the school has shined a bright light on the troublesome issue of workplace violence. The tragedy has also raised concerns about how thoroughly background checks should research the past histories of employees.
In an interview on ABC's "Good Morning America," two step-daughters of one victim questioned how the woman arrested and charged in the shooting deaths - Biology professor Amy Bishop, 42 - could get a job working at the school after reports surfaced about violent incidents in Bishop's past.
ABC News reported that investigators may re-examine the 1986 shooting death of Bishop's brother at the hands of Bishop, which was ruled accidental at the time, and also revealed that Bishop was a suspect in a mail bombing attempt on a Harvard Medical School professor in 1993. Investigators told ABC that while investigating the bombing they found a novel on Bishop's computer describing a scientist who had shot her brother.
After learning about Bishop's alleged violent past, the step-daughters of one victim told "Good Morning America" that they hoped the shooting would lead to more thorough background checks for the school's faculty and staff. They also believed Bishop obtained a list of professors who did not vote in favor of her tenure before the shootings, which left three people injured in addition to the three fatalities.
"Workplace violence" is loosely defined as threats, assaults, and violent acts - including murder - which occur in, or are related to, the workplace. While there is no one cure-all treatment to eliminate the threat of workplace violence, employers should remain vigilant and closely watch all conditions and events in the workplace in order to ensure the safety and security of employees and customers.
To help prevent workplace violence, employers may choose to initiate a Safe Hiring Program (SHP) that includes a wide range of tools, techniques, and services to help mitigate the risk of hiring or retaining a potentially dangerous employee. Background checks are considered the cornerstone of an effective SHP.
Protecting workers from workplace violence is an essential reason why employers should conduct pre-employment screening - including extensive and far-reaching background checks - on prospective employees. The goal of a Safe Hiring Program is to ensure that employers follow proper procedures during background checks and pay attention while hiring and retaining workers in order to minimize the potential for workplace violence.
For more information about workplace violence, background checks, and Safe Hiring Programs, please visit Employment Screening Resources at: http://www.esrcheck.com.
In a recent state court case that concerned a fact pattern familiar to background screening specialist, a local office of a national staffing firm supplied an employer with a bookkeeper that turned out to have criminal record for felony fraud and who misrepresented her educational background The worker embezzled $138,350. However, since the employer did not specify that the staffing firm should do a background check, and the staffing firm never claimed that they would do one, the employer's claims were dismissed.
In that case, an employer requested the locally licensed office of a national staffing firm to fill a position of secretary/bookkeeper position on a temp-to-hire basis, meaning the worker would start as a temporary worker and the employer had the option to make the position permanent with payment of a fee.
According to the Court's opinion, the local office would search and, "provide the names of the best candidates to (employer). (The staffing firm) did not represent that it would perform a criminal background check on the candidates, and (employer) did not ask that a criminal background check be performed on the candidates. (Employer) did not specify that candidates should not have a history of any felony, fraud, or theft convictions."
The worker sent to the employer in fact had a criminal conviction for felony fraud as well as false educational claims. The candidate misrepresented her past, including educational achievements, to the staffing firm, and the staffing firm did not do a background check.
As it turned out, the worker sent was probably not "the best candidate" as was promised because after the worker became permanent, she started committing embezzlement from the employer in the amount of $138,350.
The employer sued on the basis that the major national staffing firm was negligent in who they supplied, and made negligent misrepresentation (presumably about the commitment to send a qualified candidate).
At a hearing for a summary judgment however, the trial court ruled for the major national staffing firm. The appeals court upheld the ruling noting:
Foremost, it was undisputed that (staffing firm) did not represent to (employer) that it would verify an employment candidate's educational and criminal history, and (employer) did not specifically ask (staffing firm) to perform such services. .... (staffing firm) did not have a blanket policy of performing criminal background checks on every employment candidate, and they did not represent to their employer-clients that they did perform that service. Plaintiffs did not offer any evidence that verifying educational and criminal histories of employment candidates was an industry standard in similar staffing firms. (Employer) admitted he told (staffing firm) he needed someone to answer the phones, get the mail, and take care of general bookkeeping. He also admitted he did not tell (staffing firm) that (the worker) would be allowed access to signed, blank checks, would be the sole person to review the general ledger, would be handling cash, and would have complete access to his and (employer's) bank accounts. Furthermore, other than providing (the worker') name as a potential employment candidate, (employer) admitted that (the staffing firm) had no part in his ultimate hiring decision.
Staffing firms however should not assume based upon this decision that the failure to perform background checks is always legally defensible. Even though the staffing firm won the case, given the negative publicity and potential harm to reputation, a background check would have been very cheap by comparison, At a minimum, clearly specifying the staffing firm's policy on background checks would also have been a best practice.
Most employers would probably assume that they would not have to specifically request that a staffing professional not send someone convicted of felony fraud to handle their books. It is almost like saying that a when a person orders food in a restaurant, they need to specify that the food should not be contaminated.
The employer in this case however, apparently had a lack of internal financial controls. As the court noted, the embezzler had access to blank checks that were signed, would be the sole person to review the general ledger, would be handling cash, and would have complete access to his and (employer's) bank accounts. However, staffing professionals are generally well acquainted with fact the small businesses often cannot afford the type of internal controls needed to prevent embezzlement, which is another reason that staffing firms need to be careful when they place people in sensitive positions.
The court noted that the plaintiff failed to present evident that staffing firms regularly do background checks. Employment Screening Resources is privileged to work with a number of truly outstanding professional staffing firms and recruiters that certainly do perform background checks before placing workers in sensitive positions. Employers are well advised to ensure that any staffing firm or recruiters they choose conducts appropriate background checks with a qualified background firm. ESR can recommend staffing firms and recruiters that operate under the highest professional standards and exercise due diligence in whom they place.
(Note: Employment Screening Resources has adopted a practice of not identifying the names of parties to lawsuits unnecessarily in blogs and newsletters, since it does not add anything to the lessons learned, and there can be more to the story. However, if a reader has a reason to review the actual case and cannot locate it themselves, please contact Jared Callahan at jcallahan@ESRcheck.com or by phone at 415-898-0044.)
ESR Articles (click for more info)
The FCRA in 4 Easy Steps
Find out how to be in compliance with the FCRA
Criminal Records and Employment Applications
What questions should employers be asking?
10 Safe Hiring Tools
These tools don’t cost anything and promote a safe and profitable workplace
What occurs when Due Diligence is not performed
Please feel free to contact Jared Callahan at ESR at 415-898-0044 or email@example.com if you have any questions or comments about the matters in this newsletter. Please note that ESR's statements about any legal matters are not given or intended as legal advice.
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