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.

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November 2004 Vol. 4, No. 11

Employment Screening Resources (ESR) Newsletter and Legal Update

2. Another Survey Demonstrates Why Pre-employment Screening A Best HR Practice

3. Federal Court Finds Employer Not Excused From Checking Background When Applicant Hides Criminal Past On Application

4. ESR Seminars

Hot of the Press: A firm in New York City that delivers groceries to people’s homes in Manhattan, Brooklyn and Queens, found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a database search performed by a large national background firm.

The employer utilized a so-called “National Criminal” search. This is a search of available databases in the majority of states taken from various sources, such as prison records or court indexes available from some courts. Although the report is valuable because it is national in reach, it is not a substitute for a real criminal search of state courts at the courthouse level. The national criminal searches are only intended as an inexpensive and instant “pre-screen” tool, or as a secondary search to supplement a courthouse search. Because it is a database, there can be errors caused by incomplete or inaccurate data. As a result, a person with a serious criminal record can be erroneously “cleared” and innocent people can be labeled as felons.

The lesson: Be careful using databases! The employer could have ordered a “real” New York search from the screening firm through the state Office of Court Administration (OCA), providing real statewide information for New York based upon the most current court records. Although more expensive than the cheap instant search, the cost is likely a great deal less than the negative publicity and the possibility of litigation.

In addition, Employers need to institute safe hiring procedures utilizing effective application, interviewing and reference checking processes. These procedures cost nothing, but substantially increase the employer’s odds of avoiding a person with an unsuitable criminal record even before the background check.

For more information on national criminal records used as a supplement to courthouse searches, see: National Criminal Database

For more information on safe hiring procures, see: Safe Hiring Program

Another survey, conducted in 2004, demonstrates that employers are increasingly utilizing pre-employment screening a part of their due diligence. According to an online survey by the Society for Human Resource Management (SHRM) in May of 2004, a random sample of e-mail responses showed that 88% of employers found some degree of inconsistencies in resumes. Only 2% never found inconsistencies and just 9% said they do not investigate the backgrounds of applicants.

The findings are in line with a survey reported in the September 2004 edition of the HR Executive, which was reported in the September ESR Newsletter. According to that survey of 322 human resources professionals, there has been a 64% increase or enhancement of background screening requirements over the past three years. Thirty-four percent (34%) reported no change while just 2% indicated they had decreased screening.

The bottom line: The significance for employers is that these surveys are strong evidence of a national standard of care whereby background checks are a standard part of any employment process in order to demonstrate due diligence.

The Fourth Circuit Court of Appeals in October held that a janitorial service that did not check backgrounds could be sued for negligent hiring, where an employee attacked a college student, and a background check may have shown a prior physical assault on a woman. The court rejected the defense that there was no duty to check since the applicant denied a criminal conviction on a previous application and there was nothing to put the employer on actual notice of a prior criminal history.

The janitorial firm was hired by Virginia Tech, on the condition that background checks be performed. The janitorial service failed to conduct a background check, despite having employed the attacker on three different occasions before the attack. A lower court agreed with the janitorial service that the case should be dismissed because the employee had previously indicated on an application they had no criminal record and the janitorial service had no reason to suspect a criminal record.

The Appellate court reversed, and determined there was sufficient basis for the case to proceed to a jury trial. The Appellate Court, citing an earlier court decision, determined an employer can be liable for the acts of an employee on a theory of negligence, when:

“an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”

According to the Court, it was a jury issue if a background check may have revealed a criminal complaint filed in a neighboring county by a woman that the employee had previously attacked.

The bottom line: When an employer fails to conduct due diligence on an employee, and someone is harmed in a situation where it was foreseeable a bad hire can cause damage, the employer cannot escape liability because it did not know about the past criminal conduct. The fact that an applicant denies a criminal record or the employer does not know about it is not an excuse. To avoid liability, employers should be proactive in conducting background checks.

See Blair vs. Defender Services, In. 4th Cir., No. 03-1280. October 25, 2004.

See a new article published in the HR Innovator by Assessment Leaders, an ESR partner, called, “At the Feet of the Apprentice.” The article about the TV reality show details the value of assessing if a candidate is a good fit for the job. For employers who do not have the luxury of a 15 week reality show before making hiring decisions, the article reviews assessment tools that are available to every employer immediately.

The article is at: http://www.assessmentleaders.com/apprenticereprint.pdf

See Assessment Leaders at http://www.assessmentleaders.com/

ESR is pleased to announce the publication of the first definitive book on pre-employment screening and safe hiring. The book, The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace, is by ESR President Lester S. Rosen. The 512 pages cover only pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

ESR will be participating in the following seminars across the United States.

April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition (EMA website).

February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop for HR professionals and employers sponsored by the NCHRA–www.nchra.org)

February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA-www.nchra.org)

Contact ESR for further details.

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

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.

ESR will be closed December 24 and December 31 in observation of the holidays. ESR wishes everyone a joyous and peaceful holiday season.

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December 2004 Vol. 4, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update

2. New Free Credit Report Rules Goes Into Effect

3. Even Major League Baseball Teams Need to Screen Employees

4. ESR Seminars

On November 30, 2004, the Federal Trade Commission (FTC), the agency charged with enforcing the Fair Credit Reporting Act (FCRA), released a new version of certain notices that must be provided to consumers and employers.

The FCRA is the federal law that regulates pre-employment screening. Under the FCRA, a background-screening firm must provide certain notices to employers and a summary of rights for use by consumers. Congress amended the FCRA with the passing of the FACT Act in 2003, which required changes in these notices.

The new notices are effective January 31, 2005. The notice primarily affects issues such as identity theft and credit. However, as of January 31, 2005, screening firms need to begin utilizing the revised summaries.

For a copy of the revised summaries, see the ESR section on the FCRA at http://www.esrcheck.com/services/research.php

The FTC publication containing the new rules can be found at: http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-26240.pdf

For any questions about the new summaries, contact Jared Callahan at 415-898-0044 or jcallahan@ESRcheck.com

Effective December 1, 2004, a new rule went into effect concerning credit reports. The 2003 amendment to the FCRA also requires each of the nationwide consumer reporting companies to provide a consumer with a free copy of their credit report, at the consumer’s request, once every 12 months.

According to the Federal Trade Commission’s website, the free reports will be phased in during a nine-month period, rolling from the West Coast to the East beginning December 1, 2004. Beginning September 1, 2005, free reports will be accessible to all Americans, regardless of where they live.

Consumers in the Western states — Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming — can order their free reports beginning December 1, 2004.

The new rules are in addition to current rules that already mandate a free report, such as an employment screening report, where an employer intends to take adverse action based upon a screening report.

To see a full discussion of the new free credit reports, go to: http://www.ftc.gov/bcp/conline/pubs/credit/freereports.htm

The new rule does not affect screening agencies such as ESR, since ESR only provides a one-time report for employment purposes only, and does not maintain permanent files on consumers.

Although a credit report is a tool that employers can utilize, ESR urges that their use be approached with caution. Employers should have a policy and procedures in place to ensure that credit reports are only used when there is a clear reason that information from a credit report would be a valid and non-discriminatory predictor of job performance. In addition, employers should only rely upon information that is relevant, recent and accurate. For a special report on the uses and limitations of credit reports, see an ESR special report:  â€œCredit Reports and Job Hunting” http://www.esrcheck.com/articles/article7.php

Article quoting ESR by Paul Herrera of the Riverside Press-Enterprise and re-printed in the Oakland Tribune — Nov. 2004

For as little as $100 for a background check, the Arizona Diamondbacks could have avoided embarrassment after it hired as manager a man who had a pair of arrests and a bankruptcy in his past.

Four days after announcing they’d hired Wally Backman as their new manager, the baseball team withdrew its offer and named someone else. In between the two events, The New York Times uncovered the arrests and bankruptcy, revelations the team said were not previously disclosed.

Although Backman never signed a contract, the team could have prevented an avalanche of bad press for as little as $100, the cost of a background check, industry experts said.

According to the Society of Human Resource Management, more than 80 percent of large companies check for criminal backgrounds and verify resume information of job candidates. Some companies, particularly when hiring someone with financial responsibilities, follow up with credit checks.

“By the time a new employee takes their lunch break on the first day at work, a company has paid that person more than the cost of the background check,” said Les Rosen, president of Novato-based Employment Screening Services and author of “The Safe Hiring Manual — The Complete Guide to Keeping Criminals, Terrorists and Imposters out of the Workplace.”

Inaccurate or false statements on a resume are among the most common reasons people are fired or screened from a job, said Rosen, who last year founded the National Association of Professional Background Screeners.

“… Companies can’t immediately reject candidates based on a criminal record,” Rosen said. Federal law requires employers to further examine the record and base their decision on the specific merits of the charges and how they could pertain to the job for which they applied.

ESR is pleased to announce the publication of the first definitive book on pre-employment screening and safe hiring. The book, The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace, is by ESR President Lester S. Rosen. The 512 pages cover only pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

ESR will be participating in the following seminars across the United States.

April 25, 2005–Little Rock, AR “Background Screening and Higher Education: Special Issues involving Background Screening and Due Diligence in the Educational Environment.” Annual Conference for the Southwest Region for the College and University Professional Association for Human Resources (CUPA-HR). CUPA HR

April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition (EMA website).

March 3, 2005–Aptos, CA “Are You Ready to Hire?” Things are starting to look up, so come in for a tune-up. This half-day seminar will cover everything you need to know in order to hire successfully! Speakers: Janett Spirer, Humanex, Inc. and Les Rosen, Employment Screening Resources (ESR). Sponsored by the Santa Cruz EAC-Aptos Seascape Golf Club event room.

February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop for HR professionals and employers sponsored by the NCHRA–www.nchra.org)

February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA-www.nchra.org)

Contact ESR for further details.

www.ESRcheck.com

1620 Grant Avenue, Suite 7 

Novato, CA 94945

415-898-0044

3Back to Newsletters

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.

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October 2004 Vol. 4, No. 10

Employment Screening Resources (ESR) Newsletter and Legal Update

2. Federal Trade Commission to Issue Commentaries on FCRA that may Effect Hiring

3. Myth Buster: Credit Scores Not Used for Employment

4. ESR Seminars and Publications

A new survey published in the September 2004 edition of the HR Executive shows that employers across the United States are increasingly utilizing pre-employment screening as a safe hiring tool. According to a survey of 322 human resources professionals, there has been a 64% increase or enhancement of background screening requirement over the past three years. Thirty-four percent (34%) reported no change while just 2% indicated they had decreased screening.

According to the survey, 73% of the employers screen all applicants in some way. In addition, 97% of employers indicated that at some time, screening revealed negative information not revealed by the applicant. In fact, 16% of the respondents indicated it occurred frequently.

The most utilized screening tools were criminal records and past employment verification. The screening results most likely to eliminate an applicant from further consideration were falsification of employment history, criminal convictions relevant to the job, falsification of educational history, and failure to be truthful about a past criminal conviction. Poor credit and workers’ compensation history were the least likely factors to be used.

See: http://ercdataplus.com/hrexecutive for the full survey.

In 2004, a survey published by the Society for Human Resources Management (SHRM) showed that 82% of the respondents performed some degree of screening, up from 66% in a 1996 survey. See www.shrm.org

The bottom line for employers: pre-employment screening is an essential part of an employer’s duty of care towards others and part of an obligation to exercise due diligence.

Staff attorneys for the Federal Trade Commission (FTC) confirmed to representatives for the screening industry that there will be published commentaries to the federal Fair Credit Reporting Act (FCRA) in the future. The FTC is the federal regulatory agency with oversight for the FCRA. After the FCRA was substantially amended effective 1997, the FTC legal staff responded to letters from the public on issues surrounding the FCRA. Because of staff and budget limitations, the FTC discontinued the practice of issuing staff opinion letters.

However, two FTC staff attorneys informed representatives of the National Association of Professional Background Screeners (NAPBS; see NAPBS.com) at a meeting in Washington, D.C. in September that they would be issuing commentaries in the future on issues surrounding pre-employment screening. The commentaries are issued to give guidance on how to interpret the FCRA.

Before commentaries are adopted, the public is given a period of time in which to review and comment. ESR will carefully monitor all proposed commentaries and will submit comments to the FTC as necessary to protect employers. ESR will also keep employers updated on the proposed commentaries and their possible impact.

For more information, contact Jared Callahan at 415-898-0044 ext. 240 (jcallahan@ESRcheck.com).

An issue recently in the news is the use of credit reports when it comes to hiring. Of particular concern to job applicants are suggestions in the media that employers are using “credit scores” to make hiring decisions.

Even though credit reports are utilized by some employers for particular positions, a “credit score” is not a tool used for pre-employment screening. For pre-employment credit reports, the credit bureaus use a special reporting format that leaves out the credit score, along with actual credit card account numbers, and age. Credit scores are not valid predictors of job performance and therefore are not part of a pre-employment screening.

Employers seek credit reports on job applicants for a variety of reasons. Some employers are concerned about hiring persons who cannot manage their affairs, or whose monthly debt payments are too high for the salary involved. Many employers limit credit reports to management and executive positions, or to positions that have access to cash, assets, a company credit card, or confidential information. For example, employers may be justified in running credit reports on bookkeepers or others who handle significant amounts of cash.

However, employers should approach the use of credit reports with caution and have policies and procedures in place to ensure that the use of credit information is both relevant and fair. For most job applicants a credit report is the one pre-employment tool that feels as though it encroaches on a zone of privacy.

An employer should first determine if there is a sound business reason to obtain a credit report. Unless the information in a credit report is directly job-related, its use can be considered discriminatory. For example, running a credit report for an entry-level person with low levels of responsibility or no access to cash is probably not a good practice. Unnecessary credit reports can discourage applicants from applying, and running mass credit reports on all applicants, regardless of the position, can have the effect of discriminating against certain protected classes. In addition, employers should avoid making negative hiring decisions on information that is old or relatively minor. Finally, employers need to realize that a negative credit entry could be due to something that is not job-related, such as a dispute over a debt, or medical bills.

For a more details on the use of credit reports and employment, see the ESR special report: “Credit Reports and Job Hunting”

ESR is pleased to announce the publication of the first definitive book on pre-employment screening and safe hiring. The book, The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace, is by ESR President Lester S. Rosen. The 512 pages cover only pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

ESR is please to participate in the following seminars across the United States.

April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition (EMA website).

February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop for HR professionals and employers sponsored by the NCHRA–www.nchra.org)

February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA-www.nchra.org)

November 17, 2004–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 national publication on pre-employment screening and safe hiring for HR professionals. For further details contact ESR. Details will be posted on the HR Screener.

November 15, 2004–Tampa, FL National Conference of Background Screening Firms-”Legal Update– What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening.” (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

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.

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Sept. 2004 Vol. 4, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update

1. Due Diligence and Dealing with Staffing Firms

2. Terrorists and Employers

3. Verifying Security Clearances

4. ESR Safe Hiring Seminar Schedule

1. Due Diligence and Dealing with Staffing Firms

One area where a business can be blindsided is working with temporary or staffing agencies. No business would intentionally bring a person on premise with a criminal record or a fake resume that would make them unsuitable for a particular job. Yet businesses routinely utilize the services of temporary workers from staffing agencies without any verification as to the background or qualifications of the worker.

Even though a worker may be on the payroll of a staffing agency, since the worker performs duties at the business, a business can be liable for harm that the worker causes. That is because a business has a “co-employment” relationship with the worker as well as a duty to exercise due diligence regardless of whether the worker is a W-2 employee or from an agency.

Staffing firms often advertise in their marketing materials that they carefully “screen” all applicants without stating the extent of the screening. An employer needs to be very specific when asking a staffing firm exactly what screening is done. Often times, the staffing firm is only screening by conducting an interview and possibly some reference checks. Unless the staffing firm specifically tells the employer a criminal check is being done, an employer should assume that no criminal check is being conducted.

To prevent problems a business should require that any staffing or temporary agency conduct the same level of background screening the business conducts on their own employees, and to verify that screening is being done and workers who pose an unacceptable risk are not being sent to their workplace.

The above information is taken from the new book written by ESR President Lester S. Rosen, called, “The Safe Hiring Manual—The Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace” (Facts on Demand Press–512 pages). The book is available online through the publisher, Amazon.com, Borders Books and Barnes and Noble.

2. Terrorists and Employers

Prior to the events of September 11, 2001, the topic of how not to hire terrorist, was not on the radar screen of most employers. Although most Americans would have acknowledged, if asked, before 9/11 that we live in a dangerous world, the danger had not significantly impacted American life to the extent it has after the attack on America. Outside of security clearances, most employers were not focused on safe hiring from the point of view of keeping the U.S. safe from terrorists who mean us harm. As demonstrated by the events of 9/11, even small and medium employers that do not consider themselves involved in vulnerable sectors may need to be more alert in the future.

Of course part of the problem is identifying who is a terrorist. By definition, a person applying to a U.S. employer to perform a terrorist act or to find “safe haven” while planning a hostile act is going to take measures to hide their true intentions and possibly even their true identity.

Identifying terrorists and keeping them out of the workspace is a significant task for employers. It would be made easier, of course, if employers could assume that the efforts by the federal government to keep terrorists out of the U.S. in the first place were 100% effective. However, due to the complexity of guarding our borders, employers cannot simply assume that terrorists will not be in the US applying for jobs in the first place.

However, there are tools that an employer can utilize to attempt to lessen the risks. In addition to exercising due diligence in hiring and conducting background checks, there are some databases available to employers as well. However, these databases are far from perfect and can expose an employer to legal risk if not utilized correctly.

For more information on this topic, see the ESR special article: Terrorist Search and the Patriot Act

3. Verifying Security Clearances

On occasion an employer may want to verify that an applicant had a security clearance in the past. This will occur when an employer receives a resume from an applicant indicating as part of their qualifications in the past that he or she has had a security clearance. An employer may want to confirm that the person was being truthful. Some employers will, in fact, ask if a person has ever had a security clearance, or has ever had one refused, and ask details about the last clearance held, including granting agency, level, date granted and date expired.

Businesses with government contracts requiring security clearances, such as private employers used by government agencies or the military, will have authorized personnel in charge of the process called a Special Security Officer (SSO). Security clearances stay with the employer and do not travel with the individual. If an employee leaves a position, they do not take their past security clearances with them. When a person leaves one employer that requires a clearance to go to another employer that also requires a clearance, the respective SSO at each entity arranges for the appropriate transfers.

If an applicant is applying for a job that does not require a security clearance, and the employer wants to verify the past claim, the best procedure is for the employer or screening firm to contact the past employer and request the name and contact information for the SSO. If a copy of a release is provided, the SSO may verify that there was some level of clearance, but may not go into detail.

4. ESR Safe Hiring Seminar Schedule

ESR is pleased to participate in the following seminars across the United States:

April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition.

February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA) www.nchra.org

February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA) www.nchra.org

November 17, 2004–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 national publication on pre-employment screening and safe hiring for HR professionals. For further details contact ESR. Details will be posted on the HR Screener>>>.

November 15, 2004–Tampa, FL – National Conference of Background Screening Firms-”Legal Update-What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening.” (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm.

October 6, 2004–Dallas, TX “Crimes, Criminals and Human Resources” HRSouthwest Annual Conference. See www.HRsouthwest.com

September 29, 2004–Dallas, TX “Safe Hiring Audit-Implementing and Measuring Due Diligence.” ASIS International 2004 Seminar & Exhibits. See www.asisonline.org

September 23, 2004--Oakland, CA “Are You Ready to Hire?” Things are starting to look up, so come in for a tune-up. This half-day seminar will cover everything from deciding that you need to hire to successfully guiding your new employee through the critical first three months on the job. Job descriptions, recruiting, interviewing, negotiating, reference/background checks, and orientation – everything you need to know in order to hire successfully! Speakers: Janett Spirer, Humanex, Inc. and Les Rosen, Employment Screening Resources (ESR). Location/Time: Oakland Airport Hilton, 7:30am-Noon. Sponsored by the EAC of the California Employment Development Department. See: http://ceac.org/?regions/region2/east_bay/eb_sched

September 13/14–Oakland, CA “Extreme Caution Advised: Dealing with Federal and State Laws that Regulate Pre-Employment Screening and Safe Hiring.” Northern California Human Resources Association (NCHRA) Annual Conference. See www.nchra.org

Contact ESR for further details.

Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

415-898-0044

3Back to Newsletters

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)

August 2004 Vol. 4, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update

2. Tools of the Trade: Verifying Current Employment

3. Molestation of Children by Registered Sex Offenders Employed by Major Retailer Leads to Proposed Law

4. ESR Safe Hiring Seminar Schedule

A Las Vegas and Mississippi casino learned the hard way that it is not worth taking chances when it comes to background screening and legal compliance with respect to the federal Fair Credit Reporting Act (FCRA). The casinos agreed to pay fines of $325,000 to settle allegations of failure to give job applicants notice that if a credit report was the reason a job was denied. Although the agreement does not constitute an admission of a law violation, it underscores that employers need to understand and follow the FCRA when it comes to hiring.

Background checks in the United States are regulated by the Federal Trade Commission (FTC). According to a July 14, 2004 release on the FTC web site, Las Vegas based Imperial Palace and Biloxi based Imperial Palace of Mississippi ran credit reports on job applicants. The casinos rated applicants as “favorable” or “unfavorable.” However, according to the FTC, the casinos did not always give job applicants the notices required by the FCRA if they were rejected for employment.

According to the FCRA, if an employer makes a decision based in whole or in part on a consumer report, which includes a credit report, there are certain notices that must be given to the applicant. An applicant is entitled to a notice of pre-adverse action including a copy of the report and a summary of their rights. If the employer intends to make the action permanent, then the applicant is entitled to a notice that an action was taken, along with certain other rights. These notices afford job applicants an opportunity to object or correct information that is incomplete or inaccurate. For a full description of the adverse action procedures, see the ESR Special Report, “Complying with the FCRA in Four Easy Steps.”

The procedures are particularly critical if an employer uses a credit report because of the possibility that a credit report can contain information that is incorrect, incomplete or not relevant to employment. For a special report on the dangers and limitations involved with the use of credit reports, See the ESR Special Report, “Credit Reports and Job Hunting.”

A recurring issue in any past employment check is sensitivity about contacting the current employer. A current employer should NOT be contacted unless the applicant specifically gives permission.

The reason is that some employers, who upon learning a current employee is looking, will immediately take steps to terminate the employee. This is especially true for positions of greater responsibility where the applicant may have access to customer lists or trade secrets. In some industries, within minutes of learning an employee is actively looking for a new position, the current employer will have Security box up the employee’s personal items, confiscate all computers and disks, turn off all access to any computer systems, deactivate the parking permit and building access code, and have the person physically escorted off the premises with a last paycheck.

If such a hasty departure is caused by a phone call by the prospective new employer, and the job offer does not come through, the applicant is left without a job and free to contemplate whether they should visit a lawyer.

In order to avoid this, here is a simple two-step program—

1. On the application, make sure there is a box some place in large enough letters asking an applicant, “May we contact your current employer?”

2. Do NOT call the current employer unless the applicant has clearly marked the “Yes” Box. If the applicant failed to check either box, then do not call until that is clarified. Anything other than a clear indication of YES can create problems.

If the employer still needs to verify the current employment, there are three options for doing so—

1. Ask the applicant for the name of a past supervisor or co-worker who is no longer working with the applicant at the current place of employment. (Again, if there is any question about the authenticity of the supplied name, the employer can call and verify the ex-employee did in fact work at the current workplace).

2. Ask the applicant to bring in W-2’s for each year of work, or at least the full past year.

3. Wait until after the employee is hired to call the past employer, providing the hire is subject to a written offer letter that clearly states continued employment is conditioned upon a background screening report that is satisfactory to the employer. Once the new employee comes aboard, there can be a final phone call. By making current employment part of the written offer letter, an applicant has a powerful incentive to be accurate about his or her current employment situation, since any false or misleading statement or omission will have serious consequences. It is also important to say the screening report must be “satisfactory to the employer” in order to not get into a debate with an applicant/new employee about what is, or is not, a satisfactory screening report.

The above is an excerpt from the new book written by ESR President Lester S. Rosen, called The Safe Hiring Manual—The Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace (Facts on Demand Press–512 pages). The book is available online through the publisher, or Amazon.com, and will be available later this summer at Borders and Barnes and Noble.

A South Carolina Lawmaker has announced plans to introduce a bill in South Carolina to require major retailers to perform criminal background checks on prospective employees. The proposed legislation would apply to large employers who sell toys or children’s clothing.

According to a story posted July 27, 2004 on State.com, the move was prompted by reports in a South Carolina paper about two girls, ages 10 and 12, who were molested in separate incidents in a major national retail chain.

Incredibly, in both instances, the accused molesters were registered sex offenders hired by the retailer. The retailer did not perform any type of background check.

According to the National Retail Foundation in Washington, D.C., there are no state or federal laws requiring retailers to do background checks.

This legislation is part of a growing trend by lawmakers in Congress and in state legislatures to mandate background checks when there are vulnerable third parties who are at risk, such as children, the elderly, or individuals with a disability.

For a 27 point safe hiring audit by ESR, see: ESR Safe Hiring Audit

ESR is pleased to participate in the following seminars across the United States:

February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA) www.nchra.org

February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA) www.nchra.org

November 17, 2004–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 national publication on pre-employment screening and safe hiring for HR professionals. For further details contact ESR. Details will be posted on the HR Screener>>>.

November 15, 2004–Tampa, FL – National Conference of Background Screening Firms-”Legal Update-What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening.” (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm.

November 4, 2004–Santa Rosa, CA “Practical Tips For Successful HR Management” Lorman Seminars. See www.lorman.com

October 6, 2004–Dallas, TX “Crimes, Criminals and Human Resources” HRSouthwest Annual Conference. See www.HRsouthwest.com

September 29, 2004–Dallas, TX “Safe Hiring Audit-Implementing and Measuring Due Diligence.” ASIS International 2004 Seminar & Exhibits. See www.asisonline.org

September 13/14–Oakland, CA “Extreme Caution Advised: Dealing with Federal and State Laws that Regulate Pre-Employment Screening and Safe Hiring.” Northern California Human Resources Association (NCHRA) Annual Conference. See www.nchra.org

September 2, 2004–Long Beach, CA “Safe Hiring Audit-Implementing and Measuring Due Diligence.” 2004 Professionals in Human Resources Association (PIHRA) Annual Conference. See www.PIHRA.org

August 24, 2004–Santa Rosa, CA “How to Hire Winners!” Lorman Seminars. See www.lorman.com

Contact ESR for further details.

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

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