Yearly Archives: 2003

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) and as well as employers, Human Resources and Security professionals
and law firms who require information on pre-employment screening,
safe hiring, the FCRA and legal compliance. If this was sent in
error, you can be removed from this mailing by using the “remove
feature at the end of the newsletter.

(Reading
time: Less than 5 minutes)

December, 2003 Vol. 3, No. 12

Employment
Screening Resources (ESR) Newsletter and Legal Update


Best wishes this holiday season from everyone at
Employment Screening Resources (ESR)

1. The President Signs the “Fair and Accurate Credit Transactions Act of 2003″

2. Recidivism Study Demonstrates Needs for Criminal Checks

3. Legal and Illegal Interview Questions

4. Safe Hiring Training Available on Video


1. The
President Signs the “Fair and Accurate Credit Transactions Act of
2003″

On December 4, 2003, President Bush signed the
Fair and Accurate Credit Transaction (FACT) Act, reauthorizing the Fair Credit
Reporting Act (FCRA).

The major thrusts of the new law are to retain
nationwide standards for credit reporting and to strengthen consumer rights
when it comes to credit issues. It also
has provisions to combat identity theft. For employers, the critical provision is the repeal of the “Vail”
letter, which hampered the ability of employers to conduct investigations of
current employees for misconduct though third-party investigators. This is particularly critical when it comes
to the investigation of sexual harassment claims or threats of workplace
violence. The text of the law is
available at: http://www.esrcheck.com/services/research.php

Provisions of the new law should start going into effect next year as the
Federal Trade Commission issues regulations. ESR will keep employers posted on developments that affect the
workplace.


2. Recidivism Study Demonstrates Needs for Criminal Checks

Employers are increasingly subject
to negligent hiring lawsuits alleging that they hired someone that they either
knew, or should have known, was dangerous or unfit for a particular job. The
basic proposition is that a person with proven dangerous propensities in the
past may well exhibit those traits in the future.

Statistics seem to bear that out.
The US Justice Department released a study in 2002 on recidivism that suggests
recidivism within three years of release from a prison is as high as 67%. The data was from the largest recidivism
study ever conducted in the United States
, which tracked prisoners
discharged in 15 states representing two-thirds of all state prisoners released
in 1994.

The study found that:

• Most former
convicts were rearrested shortly after getting out of prison
: 30 percent within six months, 44 percent
within a year, 59 percent within two years and 67 percent by the end of three
years.

• Post-prison
recidivism was strongly related to arrest history
. Among prisoners with one arrest prior to
their release, 41 percent were rearrested. Of those with two prior arrests, 47
percent were rearrested. Of those with three earlier arrests, 55 percent were
rearrested. Among those with more than 15 prior arrests, that is about 18
percent of all released prisoners, 82 percent were rearrested within the
three-year period.

• The 272,111 offenders discharged in 1994 had
accumulated 4.1 million arrest charges before their most recent imprisonment
and another 744,000 charges within 3 years of release.

• The 272,111
inmates had accumulated more than 4.1 million arrest charges prior to their
current imprisonment and acquired an additional 744,000 arrest charges in the 3
years following their discharge in 1994 – an average of about 18 criminal
arrest charges per offender during their criminal careers. These charges
included almost 21,000 homicides, 200,000 robberies, 50,000 rapes and sexual
assaults and almost 300,000 assaults.

(See http://www.ojp.usdoj.gov/bjs/pub/press/rpr94pr.htm )

Based upon these numbers, it is no
wonder that employers face increased exposure for negligent hiring cases if
precautions are not taken to perform background checks. As reported in a previous ESR newsletter,
employers lose at least 60% of these cases, with an average award of three
million dollars, not including attorney’s fees.


3. Legal and Illegal Interview Questions

A constant challenge for employers and human resources professionals is to
ensure that anyone conducting job interviews be aware of questions that are
impermissible and may violate state and federal discrimination laws. The California Fair Employment and Housing
Commission State has produced a convenient guide to the type of questions that
are permissible and not permissible. It is generally helpful to employers in all the fifty states.

Although it is the employer’s right to establish
job-related requirements and to seek the most qualified individual for the job,
the hiring decision cannot be made on the basis of any question that directly
or indirectly:

1. Identifies a person on a basis covered by discrimination laws,
or

2. Results in the disproportionate screening out of members of a
protected group, or

3. Is not a valid predictor (not a job-related inquiry) of
successful job performance.

Federal and state laws generally prohibit employment decisions based upon
such considerations as race, color, religion, national origin, ancestry,
medical condition, disability (including AIDS), marital status, sex (including
pregnancy), and age (40+).

A copy of the guide is provided at the end of
this newsletter and is available online at:

http://www.esrcheck.com/services/legal_illegal_questions.php


4. Safe Hiring
Training Available on Video

These are tough times for employers. You can be held responsible if you
knew-or should have known-that someone you hired might pose an undue threat of
harm to others. Yet, during the hiring process, you are required to navigate
through a number of legal guidelines that are in place to protect the privacy
of your applicants.

ESR has helped to prepare a professional training video to help
employers, HR professionals and Security professionals through the safe hiring
process. In this video, you’ll follow
the fictional story of a company that makes a bad hire, and discover the steps
they decide to put in place to ensure it doesn’t happen again. As the story
unfolds, the video explains the details of an effective safe hiring process,
and sheds light on the legal background that you need to know.

The video is available online at: http://www.esrcheck.com/safe_hiring_video.php

Other
educational opportunities where ESR is participating include:

February 19, 2004–Newark/Fremont, CA– Drugs, Sex
and Murder–An Introduction to Safe Hiring and Pre-employment Screening in
California.
(A three hour workshop sponsored by he
NCHRA-details to be announced)

February 24, 2004–San Francisco, CA– Drugs, Sex
and Murder–An Introduction to Safe Hiring and Pre-employment Screening in
California.
(A three hour workshop sponsored by he
NCHRA-details to be announced)

March 10, 2004–Stockton, CA “Crimes,
Criminals and Human Resources.”
San Joaquin Human Resource
Association (SJHRA) at Noon. See www.sjhra.org

April 20-21, 2004–Washington
D.C. SHRM 35th Annual Employment Management Association (EMA)
Conference and Exposition.
Topic: “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.”

Contact ESR for further
details.


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)

 

 

1620
Grant Avenue, Suite 7

 
Novato, CA 94945

415-898-0044


Guide to Permissible and
Impermissible Questions:

Acceptable Questions Subject Unacceptable Questions
Name”Have you ever used another name?” /or/ “Is any additional
information relative to change of name, use of an assumed name, or nickname
necessary to enable a check on your work and education record? If yes, please
explain.”
NAME Maiden name.
Place of residence. RESIDENCE “Do you own or rent your home?
Statement that hire is subject to
verification that applicant meets legal age requirements.”If hired, can you show proof of age?””Are you over eighteen years of age?”

If under eighteen, can you, after employment, submit a work permit?”

AGE Age.Birth date.Dates of attendance or completion of elementary or high school.

Questions which tent to identify applicants over age 40.

“Can you, after employment, submit
verification of your legal right to work in the United States?” /or/
Statement that such proof may be required after a decision is made to hire
the candidate.
BIRTHPLACE, CITIZENSHIP Birthplace of applicant, applicant’s
parents, spouse, or other relatives.”Are you a U.S. citizen?” /or/ Citizenship of applicant,
applicant’s parents, spouse, or other relatives.Requirements that applicant produce naturalization, first papers, or alien
card prior to a decision to hire.
Languages applicant reads, speaks, or
writes, if use of a language other than English is relevant to the job for
which applicant is applying.
NATIONALORIGIN 

Questions as to nationality, lineage,
ancestry, national origin, descent, or parentage of applicant, applicant’s
parents, or spouse.”What is your mother tongue?” /or/ Language commonly used by
applicant.How applicant acquired ability to read, write, or speak a foreign
language.
Name and address of parent or guardian if
applicant is a minor.Statement of company policy regarding work assignment of employees who are
related.
SEX, MARITAL STATUS, FAMILY Questions which indicate applicant’s sex.Questions which indicate applicant’s marital status.Number and/or ages of children or dependents.

Provisions for child care.

Questions regarding pregnancy, child bearing, or birth control.

Name and address of relative, spouse, or children of adult applicant.

“With whom do you reside?” /or/ “Do you live with your
parents?”

  RACE, COLOR Questions as to applicant’s race or color.Questions regarding applicant’s complexion or color of skin, eyes, hair.
  CREDIT REPORT Any report which would indicate information
which is otherwise illegal to ask, e.g., marital status, age, residency, etc.
Statement that photograph may be required
after employment.
PHYSICAL DESCRIPTION, PHOTOGRAPH Questions as to applicant’s height and
weight.Require applicant to affix a photograph to application.Request applicant, at his or her option, to submit a photograph.

Require a photograph after interview but before employment.

Videotaping interviews.

Statement by employer that offer may be made
contingent on applicant passing on job-related physical examination.”Can you perform (specific task)?”
PHYSICAL OR MENTAL DISABILITY Questions regarding applicant’s general
medical condition, state of health, or illnesses.Questions regarding receipt of Workers’ Compensation.”Do you have any physical disabilities or handicaps?”
Statement by employer of regular days,
hours, or shifts to be worked.
RELIGION Questions regarding applicant’s religion.Religious days observed /or/ “Does you religion prevent you from working
weekends or holidays?”
Job-related questions about convictions,
except those convictions which have been sealed, expunged, or statutorily
eradicated.
ARREST, CRIMINAL RECORD Arrest record /or/ “Have you ever been
arrested?” (This is a violation of California Labor Code Section 432.7,
which is enforced by the Labor Commissioner.)
Questions regarding relevant skills acquired
during applicant’s U.S. military service.
MILITARY SERVICE General questions regarding military
services such as dates and types .of discharge.Questions regarding service in a foreign military.
“Please list job-related organizations,
clubs, professional societies, or other associations to which you belong –
you may omit those which indicate your race, religious creed, color,
disability, marital status, national origin, ancestry, sex, or age.”
ORGANIZATIONS, ACTIVITIES “List all organizations, clubs,
societies, and lodges to which you belong.”
“By whom were you referred for a
position here?”Names of persons willing to provide professional and/or character references
for applicant.
REFERENCES Questions of applicant’s former employers or
acquaintances which elicit information specifying the applicant’s race,
color, religious creed, national origin, ancestry, physical or mental
disability, medical condition, marital status, age, or sex.
Name and address of person to be notified in
case of accident or emergency.
NOTICE INCASE OF EMERGENCY Name, address and relationship of relative
to be notified in case of accident or emergency.

NOTE: Any inquiry, even though neutral on its face, which has an adverse
impact upon persons on a basis enumerated in the Fair Employment and Housing
Act (race, sex, national origin, etc.), is permissible only if it is
sufficiently related to an essential job function to warrant its use.

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals,
and law firms who require information on pre-employment screening,
safe hiring, the FCRA and legal compliance. If this was sent in
error, you can be removed from this mailing by using the “remove
feature at the end of the newsletter.

(Reading
time: Less than 5 minutes)

November, 2003 Vol. 3, No. 11


http://www.ESRcheck.com  


Employment Screening Resources (ESR)
Newsletter and Legal Update


Special
Alert
-both the US House of Representatives and the Senate have passed
versions of new legislation changing the federal Fair
Credit Reporting Act (FCRA). Once
a final bill has been passed, ESR will summarize the impact on safe hiring and
workplace investigations for employers.

1. Background Checks on Rise for Volunteers and Youth, Sports and Church Organizations

2. Detecting Lies at Interviews

3. Employer Tool-Driving Records

4. ESR Featured in Two Nationwide Audio Conferences on Safe Hiring and Due Diligence


1. Background Checks on
Rise for Volunteers and Youth, Sports and Church Organizations

This past year has seen a substantial increase in volunteer groups, youth
organizations ands churches performing background checks. Checks for criminal
records have become a standard procedure for organizations that work with
children, including sports groups such as Little League and soccer, and youth
organizations, such as Scouts. The increased emphasis on these checks has been
fueled by numerous news stories and lawsuits about children being the victim of
criminal conduct, especially sexual abuse. Background checks help protect
children from criminals who use volunteering, and youth groups and church
organizations to gain access to children.

In some states, there is legislation that permits organizations to take
advantage of state fingerprinting or criminal record programs. However, organizations can also utilize the
services of private firms that can provide fast, low-cost background checks.

One tool is a criminal offender database that includes over 100 million
criminal records from over 37 states. These are typically very low-cost and instant searches that will also
include some sexual offender database information. Although a very valuable tool, it should be used with caution
since it does not cover all states and is not exhaustive, meaning that
volunteers and individuals with criminal records can escape detection. Any organization that is planning on
performing background checks must very carefully review their own situation,
including resources available in their state, to develop a cost-effective
program. In addition, organizations can
use no-cost tools to weed out potential problems, such as thorough reference
checks.

For information on how to protect children, see the ESR knowledge base at: http://www.esrcheck.com/articles/index.php or contact Jared Callahan at Employment Screening Resources (ESR) at
(415-898-0044.


2. Detecting Lies at Interviews

A recent feature article in HR Magazine by SHRM demonstrates
why employers are at a distinct disadvantage when it comes to spotting liars at
interviews. Although industry
statistics suggest that as many as 30% of all job applicants falsify
information about their credentials, the evidence is clear that merely trying
to spot liars at interview is difficult, if not impossible.

According to the article, it can be a delusion for an interviewer to think
lying can be detected by visual clues or relying upon instinct or intuition.
For example, fidgeting, stuttering or avoiding eye contact could simply be
symptoms of nervousness about the interview rather than intent to lie.

The article quotes a study that concluded that 95% of the time, a person’s
chance of deducting if someone is lying is only 50-50 at best, and the study
included trained professionals, such as police officers, FBI and CIA agents,
and judges.

The article also quotes ESR founder Lester S. Rosen. According to Rosen, although most applicants
are honest, one bad hire can create a legal and financial nightmare for a
company. In addition, it is difficult
to spot applicants who lie since they often have told the lies about their
career so often that it becomes second nature.

The bottom line for HR and Security professionals is that although instinct
is valuable, it does not substitute for factual verification of an applicant’s
credentials through background checks and other safe hiring techniques.

For a list of safe hiring tools, see: http://www.esrcheck.com/services/services_detail.php

See the article at: http://www.shrm.org/hrmagazine/articles/1003/1003babcock.asp


3. Employer Tool-Driving
Records

Many employers utilize driving records as a
safe hiring tool. For a person who is driving a company vehicle or is in a “driving”
position for the company, such a check is a necessity. However, “driving for work” is very broadly
defined in most jurisdictions. It can cover any employee that is behind the
wheel of a car for the employer’s benefit. For example, an employee that drives to the office supply store during
lunch, or between branches of the same firm, or even attends classes that are
paid for by the company can be considered “driving for work.” If an accident occurs, in any of those
situations, an employer may also be sued. The one time an employer likely has no responsibility for an employee’s
driving is for an employee who only drives to work and drives home.

For positions that involve driving, an
employer can review the applicant’s driving history and verify a license’s
status. A check of the driving record may also give insight into the
applicant’s level of responsibility. Just having moving violations may not
relate to the ability to perform the job, but if an applicant has a history of
failing to appear in court or pay fines, that can have bearing on their level
of responsibility.

Since driving records are statewide, it may
be the first place that difficulties with drugs or alcohol are revealed if
there is a driving related violation. (However, there are restrictions on the
use of this information under the Americans with Disabilities Act (ADA) and
certain state laws and the employer must determine whether the information is
job-related.)

Driving records can also be obtained
nationwide through a firm that specializes in background checks (although some
states have restrictions). For more
information on driving records, contact Jared Callahan at Employment Screening
Resources (ESR) at 415-898-0044


4. ESR Featured
in Two Nationwide Audio Conferences on Safe Hiring and Due Diligence

ESR will be featured in national audio conferences
sponsored by two prestigious national publishers in December.

The first conference is sponsored by the Bureau of National
Affairs (BNA), which is the foremost publisher of print and electronic
news, analysis, and reference products, providing intensive coverage of legal
and regulatory developments for decision makers in business and
government.

The second conference is sponsored by Strafford
Publications, Inc., a leading national publisher of specialized
information services in both print and electronic form. Strafford serves the
accounting, legal and management consulting professions, and the security and
loss prevention markets.

Here are the details:

December 9, 2003--Audio
Conference sponsored by BNA– “Criminal Records Use: What the HR
Professional Must Know To Avoid Bad Hires and Legal Problems.”
Expert
panel including ESR president Lester S. Rosen Time: 2:00 to 3:15 EST.

see: http://www.bna.com/promotions/audio/upcoming.htm#120903

December 2, 2003-Audio Conference sponsored by Strafford Publications– “CONTROLLING
RISK AND LIABILITY in Security Operations and Guard Force Management.”

Expert panel including ESR president Lester S. Rosen: Time: 1:00 to 2:30
EST. See: http://www.straffordpub.com/products/secop/

Other
educational opportunities where ESR is participating include:

February 19, 2004–Newark/Fremont, CA– Drugs, Sex
and Murder–An Introduction to Safe Hiring and Pre-employment Screening in
California.
(A three hour workshop sponsored by he
NCHRA-details to be announced)

February 24, 2004–San Francisco, CA– Drugs, Sex
and Murder–An Introduction to Safe Hiring and Pre-employment Screening in
California.
(A three hour workshop sponsored by he
NCHRA-details to be announced)

March 10, 2004–Stockton, CA. “Crimes,
Criminals and Human Resources.”
San Joaquin Human Resource
Association (SJHRA) at Noon. See www.sjhra.org

April 20-21, 2004-Washington, D.C.
SHRM 35th Annual Employment Management Association (EMA) Conference and
Exposition.
Topic: “Safe Hiring Audit-Implementing
and Measuring Due Diligence in Your Hiring.”

Contact ESR for further
details.


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)

 
 

 

1620
Grant Avenue, Suite 7

 
Novato, CA 94945
415-898-0044

 

Employment Screening
Resources (ESR
)
Rated Top Background Screening Firm in First Independent Industry Study

http://www.ereleases.com/pr/2002-12-12e.html

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) and as well as employers, Human Resources and Security professionals
and law firms who require information on pre-employment screening,
safe hiring, the FCRA and legal compliance. If this was sent in
error, you can be removed from this mailing by using the “remove
feature at the end of the newsletter.

(Reading
time: Less than 5 minutes)

October, 2003 Vol. 3, No. 10

www.ESRcheck.com


1. A Deadly Summer for Workplace Violence

2. Tools for Employers-Avoiding Education Fraud

3. 2004 FCRA Amendments Pending in US Senate

4. Embezzlement and Detecting Liars at Interviews: ESR Featured in Two HR Magazine Articles from SHRM


1. A Deadly Summer for Workplace
Violence

This past summer has seen tragedies strike workplaces across the country.

In Chicago, seven people were killed when a former employee stormed an auto
parts warehouse armed with a semi-automatic handgun.

In June, a man at a Lockheed Martin aircraft parts plant in Meridian, MS,
shot 14 co-workers, killing six of them.

Although the totals are not in for
2003, the US Department of Labor reported there were 639 workplace homicides in 2001. Even though the
serious incidents grabbed the headlines, the problem is much deeper. The Department of Labor reports that two
million Americans are subject to some form of workplace violence each year, ranging
from serious assaults, sex crimes and robbery, to battery and threats of
violence

Many experts agree that although it
is not possible to predict who will be violent, the number one common
denominator in episodes of workplace violence is a history of past
violence. Since many employers will not
give references or report past violence, the primary tool that employers have
to try to screen out potentially violent employees is a background check that
includes a check for criminal records.

For information on how to include background checks and pre-employment
screening as part of an overall strategy to effectively deal with
workplace violence, see the ESR knowledge base at: http://www.esrcheck.com/articles/index.php


2. Tools for
Employers-Avoiding Degree Fraud with Education Checks

Studies have shown that as many as 30% of all job applicants
falsify information about their educational backgrounds. This high percentage
underscores the need to do research on the educational qualifications of
candidates. Confirming diplomas, degrees, or certificates, along with dates of
attendance, verifies applicants’ education and skills as an indication of their
ability to do the job. It also supports their honesty if claims they have made
on an application are substantiated.

Schools and universities can normally be located through
directory assistance or on the Internet. To verify education, start by asking
for the Registrar’s Office. Many schools will give verifications over the
phone. Some require use of an Internet-based service. Others might require a
small fee to be sent to them, or a release faxed over, before they will provide
you with information. A pre-employment
screening firm can also offers this service on an outsourced basis.

Another problem that has arisen for employers are diploma mills that give
worthless degrees. According to the State of Oregon Office of Degree
Authorization, “Diploma mills (or
degree mills) are substandard or fraudulent “colleges” that offer potential
students degrees with little or no serious work. Some are simple frauds: a
mailbox to which people send money in exchange for paper that purports to be a
college degree. Others require some nominal work from the student but do not
require college-level course work that is normally required for a degree.”

Diploma mills should not be confused with legitimate schools that offer
valuable distance-learning programs over the Internet. If an employer is not familiar with a
school, an employer should review the school’s web site to check out the
curriculum, faculty and graduation requirements. More information about diploma mills and fake degrees are
available at www.osac.state.or.us/oda/


3. 2004
FCRA Amendments Pending in US Senate

As reported in previous editions
of the ESR Newsletter, Congress is taking up crucial issues this
year concerning the federal Fair Credit Reporting Act (FCRA). In September, 2003, the House of Representatives,
by a vote of 392-30, passed H.R.
2622, known as the Fair and
Accurate Credit Transactions Act of 2003
. The bill is now pending in
the US Senate.

The bill addresses several key issues effecting employers. The
bill exempts
third party investigations of current employees from the FCRA. Under an interpretation of the FCRA issued
by the Federal Trade Commission in the “Vail” letter, the FTC indicated
that the full FCRA notice and disclosure rules that apply to pre-employment screening must also be followed when it comes to any investigation of current
employees
for misconduct. This has been criticized by Human Resources,
Legal and Security experts as crippling investigations of sexual harassment
claims, as well as other misconduct such as theft or threatened workplace
violence. If the bill passes, the
“Vail” letter will be repealed.

The bill also deals with the
expiration in 2004 of sections of the FCRA that preempt states from passing
laws that conflict with certain portions of the FCRA. HR 2622 “re-authorizes” the FCRA in 2004 so that there is one uniform credit system governed by the federal law rather than a hodge-podge of
different laws, varying from state to state.

ESR will continue to monitor the progress of this
critical legislation.


4.
Embezzlement and Detecting Liars at Interviews: ESR Featured in Two HR Magazine Articles from SHRM

The cover
story for the October, 2003 edition of HR Magazine by SHRM concerned employee
theft and embezzlement. Another story
was called, “Spotting Lies. Reference checks
alone won’t protect you from a mendacious job applicant.”

Both articles featured extensive quotes from ESR’s president and attorney,
Lester S. Rosen. The articles can be
found a www.SHRM.org, or by clicking:

http://www.shrm.org/hrmagazine/articles/1003/1003covstory.asp

http://www.shrm.org/hrmagazine/articles/1003/1003babcock.asp

For
information on the articles, please contact ESR Sales and Marketing Director
Jared Callahan at 415-898-0044, or by e-mail at
jcallahan@ESRcheck.com

Other
educational opportunities where ESR is participating include:

November 21, 2003–New Orleans, LA– “Crimes,
Criminals and Background Screening.”
Presentation to the
National Credit Reporting Association Annual Conference.  

November 12, 2003–Tampa, FL –Pre-employment
Screening, Safe Hiring and Homeland Security.”
Full-day
seminar on safe hiring and due diligence by ESR in conjunction
with the HR Screener, a new national publication on
pre-employment screening and safe hiring for HR professionals. Safety
Harbor Resort and Spa, Tampa, FL See the HR Screener>>>

November 10, 2003- Tampa, FL-National Convention of Background Screening
Firms-“Legal Update– What Every Background Firm Needs To Know
About the FCRA and Laws Effecting Pre-Employment Screening.
” (For
background firm and record retrievers only).

October 23, 2003–Chicago, IL –Pre-employment
Screening, Safe Hiring and Homeland Security.”
Full-day
seminar on safe hiring and due diligence by ESR in conjunction
with the HR Screener, a new national publication on
pre-employment screening and safe hiring for HR professionals. Ramada
Plaza Hotel, Rosemont, IL See the HR Screener>>>

Contact ESR for further
details.


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

Employment Screening
Resources (ESR
)
Rated Top Background Screening Firm in First Independent Industry Study

http://www.ereleases.com/pr/2002-12-12e.html

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as
well as employers, HR and Security professionals and law
firms who have requested information on pre-employment screening, safe
hiring, the FCRA 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.

(Reading
time: Less than 5 minutes)

September, 2003 Vol. 3, No. 9

www.ESRcheck.com


Employment
Screening Resources (ESR) Newsletter and Legal Update


1. Shocking New Study Shows 1 in 37 Americans Have Prison History

2. Screening Tool for Employers-Social Security Trace NOT an Official Government Record

3. New California Privacy Legislation will not Affect Pre-employment Screening

4. FCRA and Workplace Investigations: ESR Featured in Security Management Magazine Article from ASIS


1.
Shocking New Study Shows 1 in 37 Americans Have Prison History

About one in every 37
U.S. adults was either imprisoned at the end of 2001 or had been incarcerated
at one time, according to a new government report issued in August, 2003

The report found that 5.6 million people had
“prison experience” which represented about 2.7 percent of the adult
population of 210 million as of Dec. 31, 2001, the report found. The study by
the Justice Department Bureau of Justice Statistics looked at people who served
a sentence for a crime in state or federal prison. The study did not even include those who served time in local
county jails for misdemeanor violations or felony offenses where they received
probation and a county-time jail sentence.

The study is the first to measure the prevalence of prison time among
American adults. Last month, the bureau reported that a record 2.1 million
people were in federal, state or local custody at the end of 2002. The full
study is available at http://www.ojp.usdoj.gov/bjs/pub/press/piusp01pr.htm

The study underscores the fact
that, unless an employer takes some measure to protect their workplace, there
is a near statistical certainty that an employer will hire someone with a
criminal record that is relevant to the selection process. Every employer has a duty of due diligence
in hiring, which is violated if they hire someone they either knew, or reasonably
should have known
, was dangerous or unfit for a particular job.


2.
Screening Tool for Employers-Social Security Trace NOT an Official Government
Record

A standard tool used by pre-employment
screening firms is a “social security trace.” A Social Security Trace is a compilation of names and addresses
that are associated with social security numbers in data collected by national
credit bureaus. In addition, many
screening firms add a large number of other databases as part of the
search.

Many
employers mistakenly believe that these searches are an “official” review of
government records.
In fact, the only
governmental database that is included in these types of searches is the
national death record index that reflects if a social security number belongs
to a deceased individual.

The purpose of this type of search
is to gather information about a person’s past addresses and to help discover
any identity fraud. Past addresses are
critical because it helps employers determine where to search for criminal
records. Since there is not a national
criminal database available for private employers, and there are over 10,000
courthouses in America, a social security trace can help employers narrow down
the relevant courts to search.

Although these
reports can be helpful for identity purposes, they are not positive proof of
identity or the validity of a Social Security Number. There may be occasion
where there are names or addresses incorrectly associated with
a social security trace. This can occur for a variety of
reasons, such as clerical errors that occurred when information was entered
into the system. On occasion, there are
no names or addresses associated with a social security trace. This can
occur when a person has never applied for credit, so there is no history in the
credit bureau files, or the social security number does not belong to the
applicant.

The method for employers to
verify a Social Security Number, post-offer only, is to contact
the Social Security Administration. They will verify a social security number
to ensure that the records of employees are correct for the purpose of
completing Internal Revenue Service Forms W-2 (Wage and Tax Statement).

The
toll-free number for the Social Security Administration is 1-800-772-6270 and
their office hours are weekdays from 7:00 a.m. to 7:00 p.m. EST. An employer
will be asked for their company name and Employer Identification Number (EIN). More information is available at: http://www.ssa.gov/employer/ssnv.htm


3. New
California Privacy Legislation will not Affect Pre-employment Screening

In August 2003, California passed into law the Financial
Privacy Protection Act
(SB1), a measure designed to protect financial
privacy and to curb identity theft.

A review of the legislation indicates that it will not
affect pre-employment background screening performed by third party firms under
the federal Fair Credit Reporting Act (FCRA), or the California Investigative
Consumer Reporting Agencies Act (ICRAA).

Part of the advantage of
operating under the federal FCRA is that privacy rights of job applicants are
highly protected. Everything under the
FCRA is conducted pursuant to a written consent and disclosure, and consumers
have rights to obtain copies of their reports and to request
re-investigations. For more
information about background screening under the FCRA, see the ESR article “Complying with the Fair Credit Reporting Act (FCRA)
in Four Easy Steps.”

http://www.esrcheck.com/articles/article.php?article_id=article9.html


4. FCRA and Workplace Investigations: ESR Featured in
Security Management Magazine Article from ASIS

The
September, 2003 issue of Security Management
Magazine
,
the official publication of the American Society for Industrial Security
(ASIS), featured an article on the Fair Credit Reporting Act by ESR President
and Attorney Lester S. Rosen:

FCRA’s Meaning Unveiled

The Fair Credit
Reporting Act continues to be interpreted by the courts, affecting how
corporate investigations should be conducted.

By Lester S. Rosen

For
information on the article, please contact ESR Sales and Marketing Director
Jared Callahan at 415-898-0044, or by e-mail at
jcallahan@ESRchech.com

Other
educational opportunities where ESR is participating includes:

November 12, 2003–Tampa, FL –Pre-employment
Screening, Safe Hiring and Homeland Security.”
Full-day
seminar on safe hiring and due diligence by ESR in conjunction
with the HR Screener, a new national publication on
pre-employment screening and safe hiring for HR professionals. Safety
Harbor Resort and Spa, Tampa, FL See the HR Screener>>>.

November 10, 2003- Tampa, FL-National Convention of Background Screening
Firms-“Legal Update– What Every Background Firm Needs To Know
About the FCRA and Laws Effecting Pre-Employment Screening.
” (For
background firm and record retrievers only). Details to be announced.

October 23, 2003–Chicago, IL –Pre-employment
Screening, Safe Hiring and Homeland Security.”
Full-day
seminar on safe hiring and due diligence by ESR in conjunction
with the HR Screener, a new national publication on
pre-employment screening and safe hiring for HR professionals. Ramada
Plaza Hotel, Rosemont, IL See the HR Screener>>>.

October 10, 2003-Dallas-Ft. Worth, TX-“The FCRA: Avoiding the
Traps
” Presented at the HR Southwest Annual Conference.
See http://www.hrsouthwest.com

September 30, 2003–Oakland, CA– “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.”
Northern California Human Resources Association (NCHRA) Annual
Conference. (See www.NCHRA.org)

September 19, 2003–Los Angeles, CA–“Safe Hiring
Audit-Implementing and Measuring Due Diligence.”
2003
Professionals in Human Resources Association (PIHRA) Annual Conference.
(see www.PIHRA.org)

September, 2003“Pre-employment Screening and Safe
Hiring.”
Full-day seminars on safe hiring and due diligence
by ESR in conjunction with Lorman Educational Services in
California:

Sacramento 9/23

Stockton 9/26


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

Employment Screening
Resources (ESR
)
Rated Top Background Screening Firm in First Independent Industry Study

http://www.ereleases.com/pr/2002-12-12e.html

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, HR and Security professionals and law
firms who have requested information on pre-employment screening, safe
hiring, the FCRA 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.

(Reading
time: Less than 5 minutes)

August 2003 Vol. 3, No. 8

 Employment
Screening Resources (ESR) Newsletter and Legal Update


1. Major FCRA Legislation Passes Congressional Committee

2. New Tool for Employers-Multi-jurisdiction Database Search Covering Millions of Criminal Records

3. Illinois Federal Lawsuit Demonstrates What Employers Should NOT do When Hiring

4. Hiring Airport Screeners: ESR Featured in Workforce Magazine Article


1. Major
FCRA Legislation Passes Congressional Committee

As reported in previous editions
of the ESR Newsletter, Congress is taking up crucial issues this year
concerning the federal Fair Credit Reporting Act (FCRA).

On July 24, 2003, the Financial Services Committee of the
House of Representatives passed HR 2622, the Fair and Accurate Credit Transactions Act of 2003, dated June
26. This bill marks significant
additions to the FCRA. The bill is
expected to be considered by the full House in September of 2003.

Altogether the bill is still subject to changes as it
continues through the legislative process, it has three major thrusts:

  1. The
    bill “reauthorized” the FCRA so that a nationwide standard will remain in
    effect, preventing states from passing their own laws affecting certain
    credit and financial information rules. Advocates of the bill argued that a nationwide standard was needed.
  2. The bill adds significant new identity
    theft
    protections.
  3. The
    bill allows employers to hire third parties to investigate claims of
    employee misconduct by current employees, without being handicapped by all
    of the notice and procedure rules of the FCRA. This was in response to the FTC “Vail” letter that interpreted the FCRA as applying
    third-party investigations of current employees.

The bill can be viewed at http://www.cbanet.org/issues/FCRA/documents/FACTbill.PDF

>ESR will continue to follow and report on the progress of
the proposed legislation, as well as provide analysis on the practical effect
of this bill on employers

 



2. New Tool for
Employers-Multi-jurisdiction Database Search Covering Millions of Criminal
Records

New technology has given employers a valuable new tool for
safe hiring. Employers now have access
to a high-speed, multi-jurisdictional search of state and county
criminal records databases, which currently includes data from 36
states
(over 76 million offense records.) These searches quickly
return offender information in a condensed and easy to comprehend format.
Searching is based upon matching last name, the date of birth and the first
three letters of the first name.

Here are the Pros and Cons: The advantage of these new searches is that
they cover a much larger geographical area then traditional county-level
searches. It allows employers to search
across multiple jurisdictions and can pick up possible records that a county
search can miss if a particular court is not searched.

However, it is critical to understand that statewide
database searches are a research tool only, and under no circumstance
is a substitute for a hands-on search at the county level
. Not
all states have a database that is available to employers. Databases in
each state are compiled differently. There are a number of reasons that
database information may not be accurate, timely or complete. Because of
the nature of databases, the appearance of a person’s name on a database is not an indication the person is criminal any more than the absence of a name shows
they are not a criminal. Any positive match MUST be verified by
reviewing the actual court records. Any lack of a match is not the
same as a person being “cleared.”

However, a database is a valuable tool in helping
employers cover a wider area and know where to search for more information.
Contact ESR for more information on these new searches. For more details, see http://www.esrcheck.com/services/services_detail.php


3. Illinois
Federal Lawsuit Demonstrates What Employers Should NOT do When Hiring

An opinion recently issued by the US District Court in the
Northern District of Illinois provides a case study on why employers need to be
concerned about the legal aspects of safe hiring. (Socorro vs. IMI Data
Search and Hilton Hotel Corp
, No. 02 C 8120 (April 28, 2003)). The case alleged violations of the FCRA and
Illinois state laws. The case was before the court to determine what state
claims could be brought in federal court.

According to the plaintiff’s allegations filed in the case,
the plaintiff was contacted by Hilton Hotels and offered a position. On his
first day, he completed several forms, including an employment application
where he truthfully stated he had no criminal record. The application contained
an authorization for a background check that the plaintiff did not initial.
There was no indication in the court’s summary that any separate disclosure was
provided as required by the FCRA.

After employment began, Hilton hired a screening firm to do
a background check. The screening firm mistakenly reported that the plaintiff
had been convicted of a misdemeanor and served six months in jail. The
plaintiff denied having a criminal conviction. Hilton did not do further
investigation, and the plaintiff was terminated.

To make matters worse, the plaintiff alleged that after he was fired Hilton
told third parties that he was fired because he lied on his application and
spent time in jail. The plaintiff eventually found a new job, but at
substantially lower compensation.

Assuming the facts alleged by the
plaintiff were true, how many mistakes did the employer and the background firm
arguably make? Here are some of
them:

  1. Failed
    to provide a separate Disclosure for the background check under the FCRA
    and written authorization.
  2. Failed
    to comply with the adverse action notice rules under the FCRA.
  3. Failed
    to re-investigate when told information was wrong.
  4. Although
    the reasons for the mistaken criminal records were not clear, the question
    arises if reasonable procedures were used in obtaining the background
    data.

The case demonstrates the
importance of understanding the legal requirements for a screening
program. To determine if an employer is
legally compliant, contact ESR for an audit of your program, or see the ESR
Safe Hiring Audit at http://www.esrcheck.com/articles/article.php?article_id=Safehiringaudit.htm
Also, see an article by ESR
called, The FCRA in Four Easy Steps for Employers at http://www.esrcheck.com/articles/article.php?article_id=article9.html


4. Hiring Airport Screeners: ESR Featured
in Workforce Magazine Article

Virtually overnight, the Transportation Security Administration had to hire
more than 55,000 workers. Its problems with mishires and layoffs illustrate the
issues inherent in fast large-scale hires. This article by Workforce Magazine discusses the issues in depth,
and quotes ESR President Lester S. Rosen on the inherent problems in locating
criminal records, and the need for using multiple approaches in a
pre-employment screening program. An
additional article asks industry experts how they would have hired 55,000
airport screeners, also quoting ESR.

See: http://www.workforce.com/section/06/feature/23/49/38/index.html

Educational
opportunities where ESR is participating include:

November 10, 2003- Tampa, FL-National Convention of Background Screening
Firms-“Legal Update– What Every Background Firm Needs To Know
About the FCRA and Laws Effecting Pre-Employment Screening.
” (For
background firms and record retrievers only). Details to be announced.

October 21-23, 2003–Chicago, Illinois and Detroit,
Michigan–Pre-employment Screening, Safe Hiring and Homeland
Security.”
Full-day seminars on safe hiring and due
diligence by ESR in conjunction with the HR Screener,
a new national publication on pre-employment screening and safe hiring for HR professionals.
October 21 in Chicago, and October 23 in Detroit. See the HR Screener>>>.

October 10, 2003-Dallas-Ft. Worth, TX-The FCRA: Avoiding the
Traps
” Presented at the HRSouthwest Annual Conference.
See
http://www.hrsouthwest.com

September 30, 2003–Oakland, CA– “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.”
Northern California Human Resources Association (NCHRA) Annual Conference.
(See www.NCHRA.org)

September 18, 2003–Los Angeles, CA.–“Safe Hiring
Audit-Implementing and Measuring Due Diligence.”
2003
Professionals in Human Resources Association (PIHRA) Annual Conference.
(see www.PIHRA.org)

August/September, 2003“Pre-employment Screening and Safe
Hiring.”
Full-day seminars on safe hiring and due diligence
by ESR in conjunction with Lorman Educational Services at five
locations in California: 8/22 San Diego; 8/27 Santa
Barbara
; 9/5 San Francisco; 9/23 Sacramento and 9/26 Stockton. Contact ESR for
further details.


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)

 

 

1620
Grant Avenue, Suite 7

 
Novato, CA 94945

415-898-0044

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter and legal update is sent to clients of Employment
Screening Resources (ESR)
as well as employers, HR and Security
professionals and law firms who may have a need for information on
pre-employment screening, safe hiring, the FCRA 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.

(Reading
time: Less than 5 minutes)

July 2003 Vol. 3, No. 7

www.ESRcheck.com

Employment
Screening Resources (ESR) Newsletter and Legal Update


1. FCRA Changes Moving Through Congress

2. New York Changes Access and Fees for Criminal Records

3. “Only in California” Rules and Spanish Language Forms Revisited

4. Safe Hiring Training Video Available for Employers


1.
FCRA Changes Moving Through Congress

As reported in previous editions
of the ESR Newsletter, Congress is taking up crucial issues this year
concerning the federal Fair Credit Reporting Act (FCRA). The first critical issue deals with the
investigation of current employees. Under an interpretation of the FCRA issued by the Federal Trade
Commission in the “Vail” letter, the FTC indicated that the full FCRA notice
and disclosure rules that apply to pre-employment screening must also be
followed when it comes to any investigation of current employees for
misconduct. This has been criticized by
Human Resources, Legal and Security experts as crippling investigations of
sexual harassment claims, as well as investigations of misconduct, such as
theft or threatened workplace violence. Legislation has been introduced by
Texas Congressman Pete Session to exempt third party investigations of current
employees from the FCRA. The bill is H.
R. 1543.

The second critical FCRA issue
deals with the expiration in 2004 of sections of the FCRA that preempts states
from passing laws that conflict with certain portions of the FCRA. These provisions require one uniform
credit system governed by the federal law rather than a hodge-podge of
different laws, varying from state to state.H.R. 2622 has been introduced in the House of Representatives
to “re-authorize” the FCRA in 2004 so that there is one national standard under
the FCRA. It also contains provisions similar to the Sessions bill that
overrules the “Vail” letter.

ESR will continue to follow and
report on the progress of these important laws.


2. New York
Changes Access and Fees for Criminal Records

Employers attempting to perform criminal background checks on applicants
from the state of New York face new procedures effective July 14, 2004. A new law in New York requires the NY Office
of Court Administration (OCA) to no longer provide single county searches in
the 13 New York City area counties, but to instead provide a statewide court
search.

One of the immediate impacts on employers is that New York
City area courts will now charge a court fee of $52 for a statewide
search. That replaces the previous
court fee of $16 per court. For courts that are not in the New York City
area, it is unclear whether they will be allowed to provide criminal records to
employers, or if all background checks can only be done with the new and more
expensive statewide system.

For employers who only need one New York City area court
searched, this new procedure may add to the cost of pre-employment
screening. However, employers that
search two or more New York City area jurisdictions are not only ahead, but
receive a statewide search that provides much more protection.

However, for counties outside of the New York City
area, it is not yet clear whether the statewide searches will be as complete as
the old searches, in terms of the time periods covered and the inclusion of
misdemeanors for all counties. It is also not clear if the court clerks
in the courts outside of New York will continue to provide records, or if all
New York searches must go through the new system.

Until these issues are resolved, employers need to be aware
that New York criminal background checks have inherent problems. However,
employers have a legal duty to exercise due diligence, and therefore should
proceed with the new searches in New York in order to satisfy their legal due
diligence obligations.


3.
“Only in California” Rules and Spanish Language Forms Revisited

An article in our June, 2003
newsletter about Spanish language forms sparked some additional questions. Under both federal and California law, a
consumer must authorize a background check and be given various
disclosures. If an applicant only
speaks Spanish, then the forms must presumably be in Spanish in order to fully
protect an applicant’s legal rights.

In addition, a special burden has
been placed by the California legislature on background screening firms. According to the California Investigative
Consumer Reporting Agencies Act, as amended in 2002, when a California consumer
asks a background firm for either a copy of their report, or to view the
background firm’s files, the background firm must provide a notice to the
consumer in both English and Spanish. (California Civil Code Section 1786.29(b)).

ESR has all necessary background screening forms in Spanish.

The special California requirements underscore the fact
that when it comes to pre-employment screening, there are a number of “only in California” provisions. Forms and procedures used in the other 49
states are useless in California. In
addition, California has some of the most restrictive and technical rules in
the US when it comes to locating and utilizing criminal records.

As outlined in previous ESR newsletters, ESR has
played a substantial part in amending California laws concerning safe hiring
and pre-employment screening. If there
is any question about forms or procedures being used, ESR can perform a compliance check-up.
Employers may contact Jared Callahan at 415-898-0044, ext. 240 or by e-mail at jcallahan@esrcheck.com.


4. Safe Hiring Training Video Available for
Employers

A new professionally produced training video on safe hiring
is now available for employers. The
23-minute video is produced by Kantola Productions, a leading national provider
of cost-effective and high quality training videos for the business community.

The video follows the fictional story of a company that makes a bad hire and
discovers the steps they need to put in place to ensure it doesn’t happen
again. The narrator is ESR President Les Rosen, an attorney and Certified
Specialist in Criminal Law.
As the story unfolds, the video
demonstrates the details of an effective safe hiring process, and sheds light
on the legal background that employers need to know.

Viewers will learn:

  • What to look for on application
    forms, and why it’s a bad idea to rely on resumes alone.
  • Five powerful interview
    questions that will discourage applicants who have something they’re
    planning to hide.
  • Why you need to check references
    every time–even when you can’t get many details from former employers.
  • What kinds of background checks
    you should consider, and how to stay within legal guidelines if you make
    them.
  • How to keep the costs of safe
    hiring practices low, and what things you can do yourself with very little
    added time or effort.

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

Other educational
opportunities where ESR is participating includes:

November 10, 2003- Tampa, FL-National Convention of Background Screening Firms-“Legal
Update– What Every Background Firm Needs To Know About the FCRA and Laws
Effecting Pre-Employment Screening.
” (For background firm
and record retrievers only). Details to be announced.

October 10, 2003-Dallas-Ft. Worth, TX-The FCRA: Avoiding the Traps” Presented
at the HRSouthwest Annual Conference. See http://www.hrsouthwest.com

September 30, 2003–Oakland, CA– “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.”
Northern California Human Resources Association (NCHRA) Annual
Conference. (See www.NCHRA.org)

September 18, 2003–Los Angeles, CA.–“Safe Hiring
Audit-Implementing and Measuring Due Diligence.”
2003
Professionals in Human Resources Association (PIHRA) Annual Conference.
(see www.PIHRA.org)

August/September, 2003“Pre-employment Screening and Safe
Hiring.”
Full -day seminars on safe hiring and due
diligence by ESR in conjunction with Lorman Educational
Services at five locations in California: 8/22 San Diego;
8/27 Santa Barbara; 9/5 San Francisco; 9/23 Sacramento and 9/26 Stockton. Contact ESR for
further details.

July 23, 2003-Buffalo, NY--“Crimes, Criminals and Human
Resources.”
New York State SHRM HR Conference at the
Buffalo Convention Center. See www.nysshrm.org.


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 but only for purposes of general
information.


Employment
Screening Resources (ESR)

www.ESRcheck.com

1620
Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

Employment Screening
Resources (ESR
):

Rated Top Background Screening Firm in First Independent Industry
Study

http://www.ereleases.com/pr/2002-12-12e.html

See the ESR
Speaking Schedule
at http://www.esrcheck.com/ESR_Speaks.php

3Back to Newsletters

ESR Newsletter and Legal Update

This 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, the FCRA 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.

(Reading
time: Less than 5 minutes)

June 2003 Vol. 3, No.6

www.ESRcheck.com


1. Employers Sued for Improper Questions on Application Concerning Criminal Information

2. Spanish Language Forms Mandated by California Law

3. Negligent Hiring Exposure Extends to Independent Contractors

4. ESR to Present Workshops Throughout the US in 2003


1.
Employers Sued for Improper Questions on Application Concerning Criminal
Information

A class action suit against over
100 California employers in April, 2003, demonstrates the importance of paying
close attention to language concerning past criminal behavior in an employment
application.

The legal action alleges that employers violated
California Labor Code Sections 432.7 and 432.8 by asking illegal questions. These sections prohibit an employer from
asking an applicant to disclose, either in writing or orally, information
concerning any arrest or detention that did not result in a conviction,
participation in a diversion program or certain minor marijuana related
offenses over two-years old.

ESR has long advised employers to carefully review their
application forms to ensure that the questions are not either too narrow or too
broad. Applications that only ask about
felony convictions are too narrow, since in many states a misdemeanor
conviction can be very serious. Conversely, applications that ask about any criminal matter can be too broad by inquiring into matters that
are prohibited in many states, such as an arrest not resulting in a conviction.

For detailed information on
application forms, including how applications are a critical safe hiring tool,
a sample application form and suggested language to be used in an application,
visit the ESR Knowledge Base at http://www.esrcheck.com/articles/index.php#6


2. Spanish Language Forms Mandated by
California Law

Forms in Spanish for use in the
hiring process have been mandated in California as part of the sweeping changes
in background checks that occurred in 2002. According to the California
Investigative Consumer Reporting Agencies Act, a consumer in California must be
given a statement of their rights in both English and Spanish when they
ask an employer for either a copy of their background report, or the ability to
view the background firm’s physical location. (California Civil Code
Section 1786.29(b)).

ESR has all necessary background screening forms in Spanish,
including the legally required consent and disclosure notice under both federal
law and California law.

These laws underscore the fact that employers hiring in
California must be in compliance with a large number of special “only in
California”
provisions. Failure to
be in compliance with California laws can potentially expose employers to
liability. Forms that are used in the
other 49 states are useless in California. In addition, California has some of
the most restrictive and technical rules in the US when it comes to locating
and utilizing criminal records.

As outlined in a previous ESR newsletter, ESR has played a substantial part in amending
California laws concerning safe hiring and pre-employment screening. For
more information about compliance with California’s unique rules, see
: Only in California: The Strange Saga of AB 655–Critical New Rules
Affecting Safe Hiring in California
(Available at www.ESRcheck.com )

Employers may also contact Jared Callahan at
415-898-0044, ext 240 or by e-mail at jcallahan@esrhire.com. If there is any
question about forms or procedures being used, ESR can perform
a compliance check-up.


3. Negligent
Hiring Exposure Extends to Independent Contractors

Many
employers are aware that they have a duty to exercise due diligence in hiring
employees. Recent multi-million dollar
jury verdicts across the US have confirmed that an employer has a duty to
exercise reasonable care in hiring, and that an employer can be held liable for
negligent hiring if they hire someone that they either knew or should have
known was dangerous or unfit for a particular job.

However,
due diligence can also extend to firms that hire independent contractors as
well. For example, in the case of Chevron
USA, Inc. et. al v Superior Court (Kern County),
4 Cal.App4th 544 (1992),
the court ruled that a firm could be held accountable for injuries caused by an
independent contractor, if the firm failed to exercise due care in selecting
the contractor. The fact the injury was
caused by an independent contractor instead of an employee does not change the
fact that a business has a duty of care to others.

The case
underscores that businesses must exercise due diligence in hiring both
employees and independent contractors. Many businesses hire a score of independent contractors or vendors
to either perform jobs on their premises or to carry out the firm’s work. The critical lesson is that employers also
have a duty of care when they retain the services of independent contractors,
and can be held responsible for negligent hiring. ESR can assist in screening individuals employed
as independent contractors, or who are employed by a business’s vendors.


4. ESR to Present Workshops Throughout the
US in 2003

ESR
will be presenting seminars on pre-employment screening, due diligence, the
Fair Credit Reporting Act and other topics relating to safe hiring across the
US. Here are some of the future dates.

November 10, 2003- Tampa, FL-National Convention of Background Screening
Firms-“Legal Update–What Every Background Firm Needs To Know
About the FCRA and Laws Effecting Pre-Employment Screening.
” (For
background firm and record retrievers only). Details to be announced.

October 10, 2003-Dallas-Ft. Worth, TX-“The FCRA: Avoiding the
Traps
” Presented at the HR Southwest Annual Conference. See http://www.hrsouthwest.com

September 30, 2003–Oakland, CA– “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.”
Northern California Human Resources Association (NCHRA) Annual Conference.
(See www.NCHRA.org)

September 18, 2003–Los Angeles, CA–“Safe Hiring
Audit-Implementing and Measuring Due Diligence.”
2003
Professionals in Human Resources Association (PIHRA) Annual Conference.
(see www.PIHRA.org)

August/September, 2003“Pre-employment Screening and Safe
Hiring.”
Full -day seminars on safe hiring and due
diligence by ESR in conjunction with Lorman Educational
Services at five locations in California: 8/22 San Diego;
8/27 Santa Barbara; 9/5 San Francisco; 9/23 Sacramento and 9/26 Stockton. Contact ESR for
further details.

July 29 and 31,
2003–“The How To of Background Screening.”
(Pasadena, CA at the Pasadena Hilton on July 29 and Orange
County, CA at the Double Tree hotel in Orange on July 31). Sponsored by
the Professionals in Human Resources Association (PIHRA), as
part of the Part of the Practicum Series-How to Be A More Effective HR
Practitioner
. See www.PIHRA.org

July 23, 2003-Buffalo, NY--“Crimes, Criminals and Human
Resources.”
New York State SHRM HR Conference at the
Buffalo Convention Center. See www.nysshrm.org.

June 18, 2003–San Francisco, CA– “HR Audit-Are you Up To Date,
sponsored by Lorman Educational Services with Lester S. Rosen as moderator and
speaker. Click for
details>>>

June 12, 2003-Sacramento, CA– “Background Checks and
Reference Checking: A Catch-22 for Employers.”
Sponsored
by the NCHRA (www.NCHRA.org) Sheraton Grand, Sacramento, 9-12.


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

3Back to Newsletters

ESR Newsletter and Legal Update

This 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, the FCRA 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.

(Reading
time: Less than 5 minutes)

May 2003 Vol. 3, No.5

www.ESRcheck.com


1. Congress to Review FCRA

2. NewCounty Courts Continue to Present Challenges

3. Keeping it Legal–Reference Questions

4. ESR to Present at Five Seminars with the California Association of Employers (CAE)


1.
Congress to Review FCRA

On May 1, 2003, House Financial Services Committee Chairman Michael G.
Oxley (OH) and Committee Ranking Member Barney Frank (MA) jointly announced
their intention to hold a comprehensive series of hearings on continuing the
current national standards contained in the Fair Credit Reporting Act (FCRA). Under current law, states are prohibited from passing
their own rules on certain aspects of the FCRA until 2004. Although a number of
states have their own procedural rules on certain aspects of pre-employment
screening, the situation would become much worse if each state is allowed to
pass state laws that conflict with the FCRA across the board.

In
the April 2003 Newsletter, ESR reported that Congressman Pete Sessions
(R-Dallas) introduced H.R. 1543, the “Civil Rights and Employment Investigation
Clarification Act” of 2003. H.R. 1543
makes a clarification to the Fair Credit Reporting Act (FCRA) to allow
employers to use attorneys and licensed professionals to investigate current employees suspected of misconduct, wrongdoing or harassment, without obtaining
the employee’s prior authorization. Additional members of Congress have signed
on as co-sponsors, which will help the legislation move forward. ESR will continue to follow developments
closely.


2. County
Courts Continue to Present Challenges

County
Courthouses continue to present challenges across the United States for
employers who are concerned with safe hiring, due diligence and preventing
workplace violence. Los Angeles County continues to present issues for
employers. Although Los Angeles County
has rescinded a plan that called for the periodic closure of courthouses
in order to save money, the shortage of court clerks continues to impact the
ability of employers to obtain court record checks timely.

Earlier
this year, Santa Clara County in California announced
a policy of restricting date of birth information, which would have lead to
substantial delays in obtaining records in that county. ESR was very
active in lobbying Santa Clara county officials to retract this policy, noting
that Santa Clara county already has one of the nation’s highest unemployment
rates, and obstructing background checks would only serve to hurt employers and
job seekers, and at the same time benefit applicants with criminal records. The
policy was changed so that employers will not be impacted.

Other
courts across the
United States
have periodically raised barriers for employers seeking to obtain criminal
records. ESR remains proactive nationally in defending
public access to court records so that employers may exercise due diligence in
hiring.


3. Keeping it
Legal–Reference Questions

Asking reference questions
carries a certain risk if the question is not legal. How can you tell if a reference question is
legal?

Generally, a legal reference
question will have the following characteristics:

1. It
is a valid predictor of job performance (i.e., job related)

2. It
is not discriminatory on its face (i.e., it does not violate federal or states’ discrimination rules by
inquiring into impermissible areas such as marital status, national origin,
religion, etc.)

3. It
is not discriminatory as applied (there are some pre-employment tools that
although neutral on their face, can have a discriminatory effect in the manner
in which they are used)

4. It
does not violate any specific state or federal law in terms of the subject
matter, procedure or any release that is required (such as FCRA rules)

Here is an easy rule of thumb: Do not ask any reference question that an
employer could not also ask an applicant in a face-to-face interview.

For more information on reference
checking and hiring, ESR will be presenting two workshops in
June on: “Background Checks and Reference Checking: A
Catch-22 for Employers.”
See the ESR Speaking schedule
below.

If you have a question about reference
questions, please feel free to send them to Custserv@ESRcheck.com and
we will get right back to you to discuss your concern.


4. ESR to Present at Five Seminars with the
California Association of Employers (CAE)

ESR will participate in a series of five seminars
sponsored by the California Association of Employers (CAE) to
be held throughout the state of California. Locations will
include: May 13-Irvine Hyatt Regency; May 14-Emeryville
Four Points Sheraton
; May 15-Sacramento Holiday Inn; May
22-Fresno Ramada Inn University; May 29– Redding
Shasta Builders Exchange.
Contact the CAE for
further details at 916-921-1312 or see www.employers.org

The seminars will have two
sessions. Session One
is wage and hour law, provided by attorneys from the law firm of Seyfarth Shaw. Session Two will focus
on Hiring and Firing, with speakers Les Rosen from ESR and Kim Parker,
Executive VP for CAE.

The CAE is a
non-profit organization that has been assisting California employers since 1937
by providing personalized and cost-effective human resources and labor
retention benefits to members across California.

Additional ESR May/June/July Seminar information:

May 9, 2003–Oakland, CA-Conference on “Uniting Privacy
and the First Amendment in the 21st Century
.” ESR
President Les Rosen will participate in a panel discussion on the “Investigative
Uses of Personal Information,”
concerning the present legal and
regulatory schemes for controlling the use of personnel information for
investigative purposes. Sponsored by the California Office of
Privacy protection, Electronic Privacy Information Center and the First Amendment
Project. See www.epic.org/events/unitingsymposium/  

June 3, 2003-San Francisco, CA- “Background
Checks and Reference Checking: A Catch-22 for Employers.”

Sponsored by the NCHRA (www.NCHRA.org). NCHRA Training
Center, 9-12 AM

June 4, 2003–University of California at Riverside
Extension: Legal Issues in Human Resources series: “Safe
Hiring Practices Audit-
-Review of 28 steps and best
organizational practices that can be taken during the recruiting,
hiring, training and post-hiring stages to minimize any surprises concerning
the background of employees.”
Presented by Lester S. Rosen,
Esq., President of Employment Screening Resources, Contact UC
Extension–Riverside www.UCRExtension.com

June 12, 2003-Sacramento, CA- “Background
Checks and Reference Checking: A Catch-22 for Employers.”

Sponsored by the NCHRA (www.NCHRA.org) Sheraton Grand,
Sacramento, 9-12 AM

June 18, 2003–San Francisco, CA: “HR
Audit-Are You Up To Date?
” Sponsored by Lorman Educational Services
with Lester S. Rosen as moderator and speaker. Contact ESR for additional
information.

July 23, 2003-Buffalo, NY--“Crimes,
Criminals and Human Resources.”
New York State SHRM HR
Conference at the Buffalo Convention Center. See www.nysshrm.org.


Please feel free to
contact Jared Callahan at ESR at 415-898-0044
Ext. 240, or jcallahan@esrhire.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

See: Employment Screening Resources (ESR) Rated Top
Background Screening Firm in First Independent Industry Study

http://www.ereleases.com/pr/2002-12-12e.html

3Back to Newsletters

ESR Newsletter and Legal Update

This 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.

(Reading time: Less than 5 minutes)
April 2003 Vol. 3, No. 4
 

 

Employment Screening Resources (ESR) Newsletter and Legal Update


1. California Budget Problems Impact Court Records for LA County

2. Reality Check-Are You Ready for the Coming Worker Shortage?

3. Bill To Amend FCRA Introduced in Congress

4. ESR Update


1. California Budget Problems Impact Court Records for LA County

The Los Angeles County Courts, in response to the California fiscal crisis, has announced that all 59 county courthouses will be shuttered for eight days before the end of June. The plan was prompted by a $6.7 million dollar mid-year budget reduction. The proposed closure dates for April are 4/17 and 4/23.

This will delay the ability for employers to obtain criminal records for applicants who have lived or worked in Los Angeles County. In the November, 2002 ESR Newsletter, it was reported that LA County has laid off a large number of court clerks, exasperating an already difficult task in obtaining timely records in Los Angeles County.

Although ESR continues to produce results from Los Angeles County generally in three days or less, these problems 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. Reality Check-Are You Ready for the Coming Worker Shortage?

Although in the current economic environment there is relatively high unemployment and plenty of newspaper coverage about the difficulty in finding a job, experts tell us that the future will be very different. Once the recession is over, the real story will be the worker shortage, especially for jobs requiring higher education. The reasons are simple: According to the Bureau of Labor Statistics, by 2010 there will be 10 million more jobs than there will be people to fill them. Jobs requiring higher education or jobs that fall into the management /professional area are increasing significantly faster than the amount of available qualified workers to fill those positions.

What does that mean for employers? Among other things, it means employers should again be thinking about retention programs. That becomes even more important as a recession ends and employees feel more confident about looking for new opportunities. It also means firms need to plan for growth and for talent needed in the future.

In addition, it also means that employers need to pay more attention to being careful about who they hire. In a tight labor market, many firms have suffered the legal and financial consequences of hiring too fast just to fill a position without taking the necessary time to conduct due diligence.


3. Bill To Amend FCRA Introduced in Congress

On April 1, 2003, Congressman Pete Sessions (R-Dallas) introduced H.R. 1543, the “Civil Rights and Employment Investigation Clarification Act” of 2003. H.R. 1543 makes a clarification to the Fair Credit Reporting Act (FCRA) to allow employers to use attorneys and licensed professionals to investigate current employees suspected of misconduct, wrongdoing or harassment, without obtaining the employee’s prior authorization.

In 1999, the Federal Trade Commission (FTC) issued the Vail letter, which applied the FCRA notice and disclosure requirements to an investigation of sexual harassment by an independent outside investigator. According to Congressman Sessions, “If not amended, the FTC’s interpretation of the FCRA resulting from the Vail opinion could result in employers’ inability to comply with obligations under Equal Employment Opportunity Commission (EEOC) guidelines and Supreme Court precedent. Worse, the FCRA as now interpreted could have the unintended consequence of discouraging employers from using outside investigative organizations to check out threats of violence as well as allegations of employee misconduct, including cases of harassment, discrimination, fraud and embezzlement.”

Nothing in the proposed legislation modifies the application of the FCRA to pre-employment screening. The proposed legislation only addresses the investigation of current employees.

ESR’s President, Lester Rosen, recently presented a workshop on the FCRA and the Vail letter in Washington D.C. at the SHRM 20th Annual Employment Law and Legislative Conference. For a detailed PowerPoint Presentation on the FCRA and the investigation of current employees, contact Jared Callahan at ESR at jcallahan@ESRhire.com or by phone at 415-898-0044 ext. 240.


4. ESR Update

The ESR April/May Seminar information:

April 17, 2003–Rohnert Park, CA: “Hiring Winners!” Presented in conjunction with The Personnel Perspective. Doubletree Hotel -Breakfast meeting. For more information, contact Jared Callahan at ESR (415-898-0044 ext. 240)

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.”

April 27-28–Pre-employment Screeners Conference: Spring 2003 West Coast Educational Session: “Only in California: The Strange Saga of AB 655 and the Unique Rules for Screening in the Golden State.” Presentation by Lester S. Rosen to the pre-employment screening industry on how to comply with California law. Long Beach, CA; Westin Hotel. See http://www.search4crime.com/Conference/index.htm

May 9, 2003–Oakland, CA.-Conference on “Uniting Privacy and the First Amendment in the 21st Century.” ESR President Les Rosen will participate in a panel discussion on the “Investigative Uses of Personal Information,” concerning the present legal and regulatory schemes for controlling the use of personnel information for investigative purposes. Sponsored by the California Office of Privacy protection, Electronic Privacy Information Center and the first Amendment Project. See www.epic.org/events/unitingsymposium/

May 2003“Pre-employment Screening and Safe Hiring.ESR will participate in a series of five seminars sponsored by the California Association of Employers (CAE) on hiring and wage and hour laws, to be held throughout the state of California. Locations will include: May 13-Irvine Marriott; May 14-Sacramento Aces Holiday Inn; May 15-Emeryville Holiday Inn; May 22 –Fresno Ramada Inn University; May 29– Redding Shasta Builders Exchange. Contact the CAE for further details at 916-921-1312 or see www.employers.org


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

 
 

 

1620 Grant Avenue, Suite 7

 
Novato, CA 94945
415-898-0044

 

3Back to Newsletters

ESR Newsletter and Legal Update

This 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.

(Reading time: Less than 5 minutes)

March 2003 Vol. 3, No. 3

www.ESRcheck.com


Employment Screening Resources (ESR) Newsletter and Legal Update


1. ESR Seeks Further Changes in California Law

2. The Patriot Act, Terrorist Searches and Pre-Employment Screening

3. New Identify Theft Scams at Major Job Boards

4. ESR Update: New Partner and Workshops


1.
ESR Seeks Further Changes in California Law-Input from HR Professionals
and Labor Lawyers Needed

During
2002, ESR reported on efforts to amend AB 655, the bill aimed
at identity theft that made it much harder for California employers to engage
in safe hiring. ESR’s president and attorney, Les
Rosen, worked with the author of the bill 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. The clean-up bills, AB 1068 and AB 2868 were signed into law in
September, 2002.

However,
there are still potential problems for employers. ESR is working with
others to go back to Sacramento to make further changes. Any HR or Security
professional or labor attorney that has any thoughts or suggestions should
contact ESR. To find
out more about the proposed changes or to assist in the effort in Sacramento,
please contact Les Rosen at lsr@esrcheck.com


2. The Patriot Act, Terrorist Searches and Pre-employment
Screening

In the aftermath of the events of 9/11, Congress passed the
U.S. Patriot Act. For employers, it
created the need to deal with a wide range of privacy issues, in view of the
ability of the government to obtain information that employers normally keep
confidential.

The Act was also aimed at
controlling money that is used to finance terrorists’ activities by ensuring
that financial institutions know their clients, which includes running a search
of the list maintained by the US Treasury Office of Foreign Assets Control (OFAC). One of the most important aspects of the
Patriot Act is that the definition of a financial institution has been
considerably enlarged.

For financial institutions, in
order to ensure that they know at least as much about their employees as they
are required to know about their customers, ESR advises performing a
Terrorist Search.
This search
consists of not only the OFAC search, but also other available databases that
identify potential threats.

Contact ESR for a copy of
the: ESR Special Report:

Financial Institutions and Pre-employment Screening in the
Aftermath of 9/11:

The Significance of OFAC, the Patriot Act and Terrorist Searches


3. New
Identify Theft Scams at Major Job Boards – New
Threat to Privacy

MSN has reported a new type of
identity theft scam. An
applicant responded to a job posting on Monster.com for a great job. The HR director e-mailed a note that the
applicant needed to send in information required for a “background
check” as part of the interview process. Eager for work, the applicant sent off the critical details of his
identity– including his Social Security number, age, height, weight, mother’s
maiden name, and even his bank account numbers.

It turned out go be a big scam by
a person committing identity theft according to a story at Wired online. http://www.wired.com/news/business/0,1367,57923,00.html:

“It’s the first time we’ve heard of (a scam involving) someone
claiming a background check,” said Les Rosen, president of
Employment Screening Resources. “Because background
screening is heavily regulated, the idea that somebody would claim a background
check through the Internet makes no sense.”

Regulated under the federal Fair Credit Reporting Act, background checks
involve a written authorization from an applicant, who is entitled to a
separate written disclosure before the process occurs.

“Simply clicking a button on the Internet is not legally
sufficient,” Rosen said.

For more details
on how consumers can protect themselves, see ESR’s recommendations below.


4. ESR Update: New Partner and Workshops

New
Web site
: ESR is pleased to announce
the release of its new web site at www.ESRcheck.com.

New Partner: The Personnel Perspective--Headquartered in Sonoma County, California. The
Personnel Perspective
provides consulting in human resources,
organizational development, training and recruiting. The firm helps
organizations hire, compensate and manage their employees to maximum
productivity, ranging from start-ups to mature and growing firms.
Their consultants are available for on-site or on call project work or service
support. See: http://www.personnelperspective.com

ESR Speaking and Workshop Schedule (ESR speaks all over the US on
Safe Hiring issues)

For
a full schedule, see
http://www.esrcheck.com/ESR_Speaks.php

ESR President Les Rosen
will give presentations at the following venues
.

April 27-28–Pre-employment Screeners Conference: Spring 2003 West
Coast Educational Session: “Only in California: The Strange Saga of AB
655 and the Unique Rules for Screening in the Golden State.”
Long
Beach, CA; Westin Hotel. See http://www.search4crime.com/Conference/index.htm

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.”

April 17, 2003–Rohnert Park, CA: “Hiring
Winners!” Presented in conjunction with The Personnel Perspective. Doubletree Hotel –Breakfast meeting. For more information, contact
Jared Callahan at ESR (415-898-0044 ext. 240)

March 25, 2003--Santa Clara, CA. “Background Checks and
Reference Checking: A Catch-22 for Employers.”
Sponsored
by the Santa Clara County EAC.

March 18, 2003–Sacramento, CA- “How to Avoid
Hiring Problem Employees-10 Easy Steps Employers can take today (and cost
nothing).
” No cost seminar offered by the State Compensation
Insurance Fund (SCIF) for California employers. Doubletree Hotel, Sacramento.
See brochure for further details and instructions for reserving a space. http://www.scif.com/pdf/safety/drug%7Efree2-03.pdf

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.”

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)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

The top rated pre-employment screening
firm in the first independent national ranking of the pre-employment screening
industry. See: Employment
Screening Resources (ESR) Rated Top Background Screening Firm in First
Independent Industry Study

http://biz.yahoo.com/prnews/021212/phth009_1.html


Avoiding the newest
Internet Scam on phony background checks through job boards:

 

There have been recent press reports of a new identity theft scam
utilizing Internet job boards to obtain personal information from
consumers. One scam involved stealing information by posing as a
“recruiter” on a job board and asking for detailed information for a “background
check.”

In order to protect themselves from these sorts of scams, consumers should
be aware of the following:

1. Background checks are highly regulated under the federal Fair
Credit Reporting Act (FCRA) and many state laws.

2. When a background check is performed, an applicant absolutely MUST
first give a written authorization for the background check.
Any request for information without such authorization means the request
is not real. In other words, the consumer must sign a piece of paper,
producing a “wet signature.” Simply clicking a button on the Internet
is not legally sufficient (there are some special rules for truck drivers
only).

3. In addition, before any background process even begins, a Consumer is
entitled to a separate written disclosure that a background check will
occur. Unless the Consumer has received a written disclosure, it is not a
legally compliant background check.

4. Background checking
companies work for the EMPLOYER. Some of the scams involved asking job
applicants to send a form directly to a “background screening”
company. That is another sure sign to be very careful. A real background
screening procedure is initiated and handled by the employer or recruiter,
and NOT a background firm.

5. In addition,
there are certain items that a background firm will never ask a consumer
to provide. A background check never involves matters such as bank
accounts, credit card numbers, medical information of any nature or even a
physical description, such as ht/wt/eye color or hair color.

6. Background
checks do require a Social Security Number. However, applicants
should only provide that information directly to an employer or recruiter in an
environment where you are comfortable that there is the real possibility
of a job. A request for your Social Security Number would only be
asked as part of a legitimate employment process. If it is asked for
purposes of a background check, do not do anything until you have received
a written disclosure and you have signed an authorization.

7. Background firms will generally ask for date of birth at some point
during the process. Although employers cannot use date of birth to make
hiring decisions, background firms need the information for identification
purposes, since most court records use date of birth as a means of
identification. However, do not transmit that information over the Internet
and/or send directly to someone claiming to be performing a background
check. Just like Social Security numbers, it should only be released as
part of a legitimate employment process.

Online resources
are a great way to find out about employment opportunities. However,
use the same caution and common sense you would use in any part of the
employment process when it comes to giving out your personal information.
If a job or employer is for real, at some point there will be someone to
talk to in person and ways to make sure that everything is on the up-and-up.

(c) 2003 by Employment Screening
Resources

(www.ESRcheck.com)

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