ESR Newsletter and Legal Update

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and law firms who require information on pre-employment screening,
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December, 2003 Vol. 3, No. 12

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

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:

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

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

• 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.

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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,

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:

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:

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
(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
(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

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

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

Screening Resources (ESR)



Grant Avenue, Suite 7

Novato, CA 94945


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
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.

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
Name and address of parent or guardian if
applicant is a minor.Statement of company policy regarding work assignment of employees who are
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

  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
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.

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