This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR's statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the "remove" feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)
January 2008            Vol. 8, No. 1
 

ESR Newsletter and Legal Update

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1. Ten Trends in Hiring and Screening in 2008

2. From the Courts: Los Angeles Jury Awards $12 Million Verdict Against Apartment Owners
for Negligent Hiring

3. An Employer’s Duty of Care Increases with Risk

4. ESR 2008 Speaking and Training Dates

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1. Ten Trends in Hiring and Screening in 2008

Here are ten (10) trends in hiring and employment screening that ESR is tracking in 2008.

1. Paperless Systems: With advances in technology, there is no longer a need for job applicants to sign a physical piece of paper or for employers to enter data on a background screening website. An “Applicant Generated Report” takes advantage of the federal electronic signature laws for a valid online signature, so that applicant fills out the screening authorization form online, then that applicant data goes directly into the background screening firm’s system.
2. International Background Checks: With mobility of workers across international borders, due diligence is no longer limited to just what an applicant has done in the United States. Although there are numerous practical and legal challenges as well as data and privacy concerns, international background checks are becoming very accessible to employers.
3. Legal Compliance: Even though the federal Fair Credit Reporting Act (FCRA) governs background checks on the national level, there are a number of states passing their own laws. This underscores the trend that background checking requires legal compliance expertise in order to comply with complicated federal and state laws.
4. Privacy Concerns and the Off-shoring of Data: Even though great strides have been made to fight identify theft and to protect personal data in the U.S., there is practically no legal protection once personal and identifiable information (PII) leaves the U.S. Employers need to very carefully establish whether a background firm is sending data off-shore for processing and, if so, employers need to know what country is being used, what information is going off-shore and what privacy protection is in place. The concern for employers? If it gets out that you are using a screening firm that sends applicant data overseas, would applicants want to apply to your organization?
5. Accreditation of Screening Firms: For many employers, it is difficult to distinguish among screening vendors. The National Association of Professional Background Screeners (NAPBS) is in the process of developing accreditation standards. In the meantime, the following website has a helpful article and link to a sample Request for Services (RFP) that may help employers determine how to select a screening service. See: http://www.esrcheck.com/SelectingBackgroundScreeningFirm.php
6. Rights of Ex-offenders to Get Jobs. There is an active movement in the U.S. to help ex-offenders obtain gainful employment. Without a job, an ex-offender is likely to end up back in custody, and unless we as a society would rather build more prisons than schools and hospitals, a way is needed for ex-offenders to get back to work. In addition, there is a greater likelihood that an employer could be sued for discrimination if an ex-offender is denied employment without a business justification.
7. Increased Screening of Temps, Independent Contractors and Vendors: Some employers have well-thought out screening programs for their employees, but routinely allow temporary workers, independent contractors and vendors access to their premises, clients, or computer systems with no idea of who they are. Employers need to examine their practices for screening members of their extended workforce and vendors.
8. The Use of Search Engines and Social Networking Sites: Employers will increase their use of search engines and sites like Facebook and MySpace to screen applicants. However, there are a number of pitfalls, such as obtaining information that is potentially discriminatory or not authentic. In addition, the issue of whether applicants have a “reasonable expectation of privacy” in their social networking sites has yet to be determined, since there are strong arguments that not everything on the web is fair game for employers to use.
9. The Use of Criminal Databases. Although large criminal databases are a valuable secondary tool with millions of records, employers are beginning to understand that those databases are not a replacement for a county criminal search but rather a supplemental search that may lead to other counties to check.
10. Ongoing Screening Post-hire: New tools make it possible to screen employees periodically after they are hired. However, thought must be given to the type of screening and what to do with any negative information. Such screening also uses databases, which can have a high rate of “false positives” and “false negatives” when used as a standalone tool.

For more information, contact Jared Callahan of ESR at jcallahan@esrcheck.com or 888-999-4474, Ext. 240

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2. From the Courts: Los Angeles Jury Awards $12 Million Verdict Against Apartment Owners for Negligent Hirin

According to news reports on January 18, 2008, a Los Angeles jury awarded a $12 million verdict against an apartment owner that hired a maintenance man without a background check who then raped and murdered a 30-year-old tenant. The maintenance man was a convicted felon and registered sex offender who was given keys and access to all apartments in the complex.

The wrongful death case, brought by the victim’s family, alleged that the maintenance man was the perpetrator, and that a background check would have revealed his criminal past.

The verdict underscores again the value of background checks in protecting human life. For a minimal cost, the apartment owners could have easily discovered the criminal record before handing a registered sex offender the keys that allowed access to evey apartment and putting numerous people at risk. By failing to exercise due diligence in hiring, employers open themselves up to this type of negligent hiring lawsuit.

In addition, even businesses that only hire occasionally have easy access to background checks. ESR for example has a small business division, where a small employer can go online and use their credit card for a background check in a very user-friendly system. See: http://www.esrcheck.com/smallbizdivision.php

In this type of case, the duty to conduct a background check was especially critical because of the potential and foreseeable risk to human life if the keys to every apartment were given to the wrong person. See the next article of this newsletter for a discussion of risk and the increased need to conduct due diligence in hiring. http://www.mercurynews.com:80/breakingnews/ci_8012071

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3. An Employer’s Duty of Care Increases with Risk

The following excerpt from the “Safe Hiring Manual” discusses the duty of care in more detail:

The injured party must show there is some connection or relationship between itself and the employer, so the employer owes a duty of care. This can occur in numerous situations, such as a co-worker on the job, a member of the public in a location where customers are expected to have contact with employees, tenants in an apartment building injured by a maintenance worker, and other situations where the victim and the dangerous employee are expected to come into contact. In other words, an employer breaches a duty of care if it creates a situation where a third party is expected to be brought into contact with the employee who causes the injury, under conditions for which there is an opportunity for an injury to occur. It does not matter that the particular injury was foreseeable, just that any injury was foreseeable.

Certain employers have a higher duty of care because of the unique situations of the job. An employer’s duty of care will increase with the degree of risk involved with the position For example, consider the nature of the authority and position of trust a security guard holds. Many courts impose an even higher standard of care on a security guard business than other types of employers since there is a greater likelihood of harm to third parties. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984). In other words, when the job enables a person to act under some color of authority, a greater risk is involved because a person can potentially abuse that authority.

Similarly, courts have held employers who send workers into people’s homes to a higher standard. This is on the theory that when an employer hires an employee who is given a unique opportunity to commit a crime, the employer has a higher duty of care. Examples are firms that clean carpets, deliver or fix appliances, or perform pest control services in a home. An example is a homeowner who brought suit against the exterminating service she hired when one of its employees raped her in her home. Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1st Cir. 1989).

Other examples of higher duties of care can be medical professionals, home health care agencies or childcare workers that serve a vulnerable population particularly at risk. Another example is a worker hired in a call center who has access to sensitive financial information such as credit card numbers, or personal information such as SSN’s.

For more information about the Safe Hiring Manual, visit http://esrcheck.com/SafeHiringManual.php

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4. ESR 2008 Speaking and Training Dates

ESR 2008 Schedule

February 7, 2008 IPMA HR audio conference--"Avoid Negligent Hiring--New Developments, Best Practices and Legal Compliance." Details to follow

February 28, 2007 Silicon Valley, CA "Using the Internet and Social Networking Sites to Find and Screen Applicants" Santa Clara County Employer Advisory Group, Biltmore hotel, Santa Clara, CA

March 6, 2008 Kennedy Information National Audio Conference--"Background Checks and Recruiting -- Avoiding Negligent Hiring." Details to follow

March 26, 2008 Los Angeles, CA "Pre-employment Screening: Best Practices and Legal Compliance" HR STAR Conference

April 3, 2008 San Francisco, CA "Pre-Employment Screening and Background Checks" San Francisco Employer Advisory Council (EAC)

May 15, 2007 Las Vegas, NV "Using the Internet and Social Networking Sites to Find and Screen Applicants" Kennedy Information's Recruiting 2008 Conference and Expo, Las Vegas Hilton

June 5, 2008 Cooperstown, NY "Cutting Edge Issues and Best Practices in Background Checks and Employment Screening for Hospitals and Healthcare Organizations" Symposium sponsored by the Health Association of New York State (HANYS)

June 23/25, 2008 Chicago, Il "Negligent Hiring Mock Trial" and "Caution! Using the Internet and Social Networking Sites to Screen Applicants". SHRM 60th Annual National Conference and Exposition.

July 16, 2008 San Francisco, CA "Pre-employment Screening: Best Practices and Legal Compliance" HR STAR Conference

July 18, 2008 Stockton, CA "Pre-Employment Screening and Background Checks" Stockton Employer Advisory Council (EAC), Stockton, CA

August 28/29 2008 New Delhi, India "International Background Screening: Best Practices in the US and in India and the Pacific Rim." The Second Annual International Pre-employment Screening Conference, The Taj Mahal Hotel, New Delhi, India

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

• Convenient 24/7/365 availability through any online connection
• 21 self-paced lessons on Safe Hiring practices
• A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
• Review quizzes after each lesson featuring more than 300 questions about safe hiring
• Easy access to useful Safe Hiring web-links
• Sample safe hiring forms to help guide your own form development
• Industry certification in Safe Hiring
• Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The $395 course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

• ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release

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Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.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.

Employment Screening Resources (ESR)
www.ESRcheck.com
7110 Redwood Blvd., Suite C
Novato, CA 94945
415-898-0044

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