ESR Newsletter and Legal Update
Friday, November 1st, 2002This newsletter is sent to clients of Employment Screening Resources (ESR) and employers, HR and Security professionals and law firms who
have requested information from ESR on pre-employment screening,
safe hiring and legal compliance. If this was sent in
error, you can be removed from this list by using the “remove” feature
at the end of the newsletter.
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November 2002 Vol. 2, No.11-2
Employment Screening Resources (ESR) Newsletter and Legal Update
1. Court delays in LA County
2. New California Laws go into Effect
3. Jury Verdicts go Against Employers who fail to Exercise Safe Hiring
4. ESR to Speak at Upcoming SHRM Conferences
Employers concerned about doing
criminal background checks for applicants who have lived or worked in Los
Angeles County may find that recent cost cutting measures in the court will
adversely affect background screening. LA County has laid off a large number of court clerks this
year. That
exasperated an already difficult situation in Los Angeles County, which
according to the 2000 census had 9.5 million people, making it larger then most
states. Although ESR continues to produce results generally in three days
or less, the courts present a number of challenges. We will make every
effort to make certain that our LA County results are timely, and will monitor
the situation closely.
2. New California Laws go into Effect
As announced in a previous special ESR newsletter, two new laws in California that
“clean-up” AB 655 went into effect September 28, 2002. ESR’s president, Les Rosen, who is also an attorney, worked with the author of the
bills in Sacramento by helping draft language in the clean-up bills and
testifying before the state legislature on why California employers needed the
law to change.
For employers, the immediate
advantages are relief from the obligation of informing all job applicants about
references. In addition, California employers will no longer have to send
out background reports to applicants (but must provide a place on a form for an
applicant to request that the background firm send the report).
Any employer who utilizes the services of a third-party
screening firm should have received by now new forms from their background firm
for California applicants. First, there is a revised Certification form
that all employers who perform background screening in California need to sign.
Second, there is a new Disclosure form. Employers should have received forms from their background firm earlier
this year when AB 655 went into effect, and should have received new forms
recently when AB 1068 went into effect. For ESR clients, the forms have been provided. If there are any
questions, please contact ESR at 888-999-4474.
The new laws, AB 1068 and AB 2868, can be viewed at: http://www.leginfo.ca.gov More information can be found in an article prepared by ESR at: http://www.esrcheck.com/web/articles/AB655-California.html
3. Jury Verdicts go Against Employers who fail to Exercise Safe Hiring
According to one recent survey of
reported California jury verdicts in employment cases, employers lose 60
percent of negligent hiring/supervision lawsuits. There is no reason to believe the figures are significantly
different in other states. According to an article posted at insure.com, negligent hiring and
retention out-of-court settlements due to workplace violence lawsuits averaged
more than $500,000. If the matter went to a jury trial, the
verdicts in those cases averaged about $3 million.
An example of how
dramatic jury verdicts can be was demonstrated by the Massachusetts case of Ward,
et al. v. Trusted Health Resources, Inc. A health facility did not check
the background of Jesse Rogers when it hired the ex-felon to care for a
32-year-old quadriplegic with cerebral palsy, and his 77-year-old
grandmother. A few weeks after he was removed from the assignment for
failing to show up for work consistently, Rogers murdered both the patient and
the grandmother. In 1998, a jury awarded a $26.5 million dollar verdict. That
is not even the highest verdict for a negligent hiring case. A New Jersey jury recently award over $40
million dollars (details in a future issue).
ESR will provide information about jury verdicts
and results as a standard part of its newsletter service.
4. ESR to Speak at Upcoming SHRM Conferences
ESR President Les Rosen will give presentations at
two SHRM (Society for Human Resource Management) Conferences in 2003.
April
23-24, 2003–Las
Vegas, Nevada: SHRM 34th Annual Employment Management Association
(EMA) Conference and Exposition: “Crime, Criminals and
Hiring-the Role of Criminal Records in the Hiring Process.”
March 11, 2003–Washington DC. SHRM 20th
Annual Employment Law and Legislative Conference–”The Fair Credit
Reporting Act (FCRA) and Employers–Developments and Trends Affecting
Pre-Employment Screening and Employee Investigation.”
ESR
speaks all over the US on Safe Hiring issues. For a full schedule, seehttp://www.esrcheck.com/ESR_Speaks.html
The
Next speaking dates are:
November 21, 2002–Oakland,
CA–NCHRA chapter meeting on “Crimes, Criminals and Safe Hiring.”
December 6, 2002-San
Francisco, Ca. “Background and Ethics Checks and the FCRA–Safe Hiring
in the Enron/MCI Age.” Sponsored by Certified Investigative
Professionals Inc (CIPI) (See http://www.cipi.org/indexhome.html )
Please
feel free to contact ESR Customer Service at 415-898-0044, or
Les Rosen, President of ESR, if you have any questions or
comments about the matters in this newsletter. Les can be reached at
415-898-0044, ext. 246, or by e-mail at lsr@ESRcheck.com. Please note that ESR’s statements about any legal matters are not given or intended as legal
advice.
Employment
Screening Resources (ESR)
1620
Grant Avenue, Suite 7
Novato, CA 94945
415-898-0044
Summary
of the impact of AB 1068 and AB 2868. The immediate effects for employers performing
pre-employment background screening from the news laws are as follows:
1. Employers no longer need
to worry about providing reference checks to applicants.
2. Employers no longer need
to automatically send background reports provided by a background-screening
firm to applicants. Instead, all applicants will have the opportunity to
check a box on a form, and if the applicant wants the report, the
background-screening firm will send it. (However, before changing any current practices, be sure to implement
the new forms.)
3. California employers
will need to use NEW forms when obtaining consent from applicants for a
screening. The new forms will contain
the check-off box. The new forms have
been sent to all ESR clients, and is available from the ESR website for clients only. (If there are any questions, please contact ESR Customer Service at 415-898-0044.)
4. ESR clients will need to
return an additional “certification” to ESR to comply with
some of the new technical requirements. California employers are required to “certify” to a background firm that
they will comply with the new rules. The required “certification” is different than the certification that
the law required under AB 655 earlier this year, because the rules have
changed.
Here is a more
detailed summary of what the “clean-up” legislation will do in California.
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. What the law
was trying to solve was a problem that occurred when employers did their own
criminal checks by using do-it-yourself Internet services, and the information
was wrong. Under the old law, an employer had no obligation to tell an
applicant that the employer found a criminal record when not using a background
firm. This loophole in the law has lead to documented cases of people being
blacklisted because of incorrect records. Under the clean up bill, an employer
would have to turn over any public records, such as criminal convictions that
it found on its own, but reference checks are explicitly excluded.
2. Providing
Reports to Applicants: Based upon a suggestion from ESR, 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.
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 that clarifies that the new law is not intended to curtail internal
investigation of current employees suspected of misconduct or wrongdoing. However, federal law still applies.
5. Limitations on “do-it-yourself” investigations: If an
employer does their own investigation of an applicant or current employee
without using a screening firm or professional investigator 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 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 a copy of any
public record. 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 10 yrs in some cases.
7. Purpose of Report: The new law also clarifies that once an
employer certifies that background reports are being used for employment, a
background-screening firm may assume that the purpose remains the same for all
reports. In addition, the background-screening firm must notify all users of
reports that if the purpose of the report should change, the user is
obligated to notify the background firm. By this e-mail ESR is notifying all clients that under California law,
if for any reason a background screening report is requested for any reason
other than employment, the employer must notify ESR.
End of Newsletter
