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Holiday Schedule 2008
Everyone at ESR wishes you a Happy Holiday Season.
ESR will be closed this year the days after Thanksgiving (11/27 and 28), Christmas (12/25 and 26) and New Years (1/1 and 2) in Observation of those holidays. Please contact Customer Service if you have any questions.
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.
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November 2008 Vol. 8, No. 11
1. New Group Forms to Promote Privacy Protection by Agreeing not to Send Data Offshore
3. Recruiters and Background Checks – How to Speed up the Process
4. ESR Speaks 2008-2009 Speaking Schedule
1. New Group Forms to Promote Privacy Protection by Agreeing not to Send Data Offshore
An important issue for employers in working with a background screening firm is knowing exactly where the screening firm is sending an applicant’s personal and identifiable information, or PII. Identity theft is a significant issue for Americans, and if an identity is stolen, it can take years to clean up the mess, cost a great deal of money and cause untold grief.
However, there are some background screening firms that seek to lower their costs by off-shoring screening functions to countries outside of the United States. One of the problems with off-shoring is that once data leaves the United States, the data is beyond the reach of U.S. privacy laws.
To address this issue, a number of background firms have banded together and have voluntarily adopted a standard that they do not off-shore domestic verifications, and precautions are even taken with international verifications to protect PII. See http://www.concernedcras.com/ ESR is a subscriber to the no off-shoring standard. If a firm is not listed on that site, an employer is well advised to inquire if any data is sent offshore and, if so, what protections are in place.
2. The Story Behind the News: ABC News Reports Dozens of Lawsuits over Inaccurate Criminal Reports Stemming from Database Searches
According to a story from ABC News on October 13, 2008, there have been dozens of lawsuits in the past two years alleging that background checks have cost people jobs because they were inaccurately identified as criminals when in fact they were not. The story focused on the use of massive criminal databases, where private firms have aggregated millions of records that are not always accurate. See: http://abcnews.go.com/TheLaw/story?id=6017227&page=1
The inaccuracies come in two varieties:
Here is why these errors occur; Under the federal law that regulates pre-employment screening, the Fair Credit Reporting Act (FCRA), a screening firm has two options when it comes to the use of these private databases. Under Section 613 of the FCRA, a screening firm can either re-verify the criminal database records at the courthouse to ensure it is current and up-to-date OR send a contemporaneous notice to the applicant advising them that a criminal record is being reported about them.
The problem arises in situations where a screening firm chooses to utilize the “notice” option and does not go to the courthouse to ensure the record applies to the applicant and is proper to report. Although that is a legal practice under the FCRA, it is also a reason that some background reports contain information that does not relate to the applicant or should not have been reported, sometimes referred to as a “false positive.”
It should be noted that this is NOT an issue in California, since that is the one state that specifically requires a screening firm to ensure that public records are current and up-to-date. California law does not permit a screening firm to simply report what is in a database and send a notice to the applicant.
It is also critical to note that such databases can also contain “false negatives,” which means that person with a criminal record is falsely identified as being clear. This can happen because these private databases are a crazy quilt patchwork of data from a number of sources, with wide variations in accuracy, completeness and timeliness. Also, a number of jurisdictions do not report any data at all to these databases. For example, such a database is of little use in some large states like California or New York where little data is reported or identifiers are not provided. Although such databases can be valuable because they contains millions of records, they are best used as a pointer or lead generator for places to look for records, and should not replace court searches of counties where a person has lived or worked unless the database contains the same information that is available at the courthouse.
In response to these concerns, a number of screening firms, including ESR, have adopted standards that would prevent inaccurate criminal records from databases. This is also part of the Concerned CRA standards at: http://www.concernedcras.com/
The Concerned CRA standards are as follows;
A CRA that chooses to display the “Responsible Criminal Databases” seal is self-certifying that they subscribe to the following standards when using criminal records in databases in the context of employment-related screening, exclusive of the screening of volunteers, tenants, and other non-employment relationships:
For more information, contact Jared Callahan at ESR at jcallahan@esrcheck.com or by phone at 415-898-0044.
3. Recruiters and Background Checks – How to Speed up the Process
Part of the on boarding process for most in-house recruiters is the completion of the pre-employment background check. The challenge is that they are typically under intense time pressure to complete the hiring process quickly and to get the new person started.
On the other hand, it is mission critical that employers exercise due diligence in their hiring. If an employer hires someone who turns out to be dangerous, unfit or unqualified, and some harm occurs where it was foreseeable that a bad hire could cause damage, then the firm can be on the hook for a negligent hiring lawsuit, not to mention all of the other costs, workplace problems, and negative publicity associated with a bad hire. Of course, a bad hire does not reflect well on a recruiter either.
In a perfect world, a recruiter would like to be able to go to a website such as www.Should-I-Hire-This-Person-or-Not.com to get an immediate “thumbs up” or “thumbs down.” However, no such site exists because much of the data needed to do a background check is simply not gathered ahead of time and data based in such a neat and tidy way. There is not even a comprehensive national criminal database that reveals an accurate criminal history. Most private employers do not have access to the FBI criminal database, and even the FBI database is subject to numerous sources of errors.
As a result, background checks are conducted by actually calling up schools and past employers and going to courthouses. A background check will typically take three days, and that is assuming the universe is cooperating. Of course, there will be delays if an employer has gone out of business or refuses to call back, or a school is closed for a holiday or requires a release or check sent by mail. Further delays can occur if there are potential criminal record matches, and the court clerk delays producing the file that would help determine whether the case can even be reported under complex federal and state rules.
The life cycle of a background check is often in conflict with a recruiter’s time constraints to fill a position. The good news is that a recruiter can be pro-active in speeding up background checks in several ways.
Creating an Efficient Background Check Timeline
1. Recruiters must understand the process can be delayed if screening firms are sent incomplete information, or supplied with forms that are illegible or incomplete.
For example, screening firms often face difficulty in deciphering an applicant’s past employers or social security number. Since a screening firm is not expected to read hieroglyphics or be a “mind reader,” the screening firm has to contact the recruiter to clarify the information. Some screening firms will make their best guess and if they are wrong, the report is delayed even further, proving the old adage that “no good deed goes unpunished.”
Recruiters who review all applications for completeness, legibility and accuracy with the candidates before sending the applications to a screening firm will find their work is completed much faster.
2. An in-house recruiter needs to communicate with hiring managers to eliminate unrealistic expectations. A hiring manager may not understand, for example, that criminal records are searched at each relevant courthouse, or that delays can occur if there is a potential match and the court needs to bring files from storage.
Hiring managers must also be advised that employment and education verifications can be delayed for a number of reasons, such as schools that are on vacation or that require a check or release to be mailed, or employers that are closed, merged or refuse to cooperate. If there is a delay in receiving a completed screening report, the recruiter should examine the source of the delay.
3. If a recruiter is working with a screening firm that has an online ordering system, the process is considerably faster. Not only does this ensure accuracy, which makes the process faster, but it also avoids delays caused by sending a request to a screening firm and waiting for the firm to do manual data entry.
4. Finally, there are times when a recruiter should determine that even though the screening firm has not been successful in obtaining all of the information, enough data is available to make a hiring decision. This typically happens in the area of verifying previous employment. When conducting employment verifications, often times the earliest employment is the most difficult to obtain. However, it may also be the least relevant. If the applicant, for example, worked in a fast food restaurant six years ago after getting out of school and the fast food place will not call back, then there may be no reason to delay the hiring decision, especially if the screening firm has obtained the most recent, and presumably more relevant, job verifications.
The bottom line
Experienced recruiters understand that background checks are not only a critical part of the hiring process, but are a great deal more complicated than merely putting a name in a database. A competent background checking process requires specialized knowledge, resources and experience. This is particularly true since employment screening is a highly regulated area. The best way to speed up the process is to understand exactly what is involved in facilitating the smooth flow of accurate data.
4. ESR Speaks 2008-2009 Speaking Schedule
December 2, 2008 National webinar
"Using the Internet and Social Networking Sites to Screen Candidates," sponsored by PlanetHR/Thompson Publishing
February 19, 2009 Modesto ,CA "Pre-Employment Screening and Background Checks," Stanislaus County Employer Advisory Council (EAC)
March 26/27, 2009 New Delhi, India Third Annual India Global Employment Screening Conference, Taj Mahal Hotel
April 28/29, 2009 San Francisco, CA
"The Use of Search Engines and Social Networking Sites to Screen Candidates—Landmines and Pitfalls” HR West, NCHRA’s 25th Annual Conference (Northern California Human Resources Association)
May 19/22 2009 Las Vegas, NV
Ten Practical and Proven Tools to Qualify and Hire the Best" KennedyInfo Recruiting Conference
July 1, 2009 New Orleans, LA “Negligent Hiring Mock Trial" SHRM 61st Annual National Conference and Exposition.
November 8-11, 2009 Tampa, Florida
Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers) "The Pre-employed Screening Industry--The Good, the Bad and the Ugly."
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
Negligent Hiring
What occurs when Due Diligence is not performed
Contact Us
http://www.ESRcheck.com
jcallahan@esrcheck.com
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
1620 Grant Avenue, Suite 7
Novato, CA 94945
415-898-0044
