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July 2004 Vol. 4, No. 7
Employment Screening Resources (ESR) Newsletter and Legal Update
1. Online Databases Offer Employers Impermissible Data
1. Online Databases Offer Employers Impermissible Data
A number of web sites that specialize in selling raw data online over the Internet have targeted employers for the purpose of selling data about potential employees. In addition, a popular subject of spam e-mail is promotional web sites and software that supposedly allow people to find out anything about anyone. Employers who are concerned about staying out of court need to view these database web sites with extreme caution.
The sites offer data that should not be used for employment purposes. For example, such sites typically offer bankruptcy records. However, employers need to be aware that the federal law provides express prohibitions against discriminatory treatment of debtors by private employers. A private employer may not discriminate with respect to employment if the discrimination is based solely upon the bankruptcy filing. 11 USC 525
One site offers to sell data to employers for the purpose of revealing an applicantâ€™s relatives and associates, or to confirm property ownership. An employer who obtains or utilizes data for these purposes is likely to find that they are in violation of the federal EEOC rules as well as state fair hiring rules.
These sites also offer employers so-called instant â€œnational criminal searches.â€ As outlined in previous ESR newsletters, there is no such thing as a â€œNationalâ€ criminal search available to private employers from a private company. These are actually searches of a hodgepodge of publicly available databases that have deficiencies caused by issues related to completeness, accuracy and timeliness. Although a search of these available criminal records can be a valuable secondary search tool for employers in some states, employers must not be tricked into thinking that they are buying a search that will demonstrate Due Diligence in court without careful consideration of the entire safe hiring practice. Some of these sites fail to mention the federal Fair Credit Reporting Act (FCRA), as well as numerous state laws, which are critical to understand as far as legal compliance is concerned.
For information on tools available to employers, as well as limits to their use, see Employment Screening Tools
2. Article Explains Basics of S.A.F.E. Hiring Program
A recent article by ESR that appeared in the June issue of Security Technology and Design magazine underscores the importance of hiring processes that occur before the background check. According to the article, employers that engage in a S.A.F.E Hiring program experience a significantly lower rate of negative information being found in a background check, such as a criminal record or discrepancies in education or credentials.
The basis of a S.A.F.E. Hiring Program is:
S: Set up a program, policies and procedures to be used throughout the organization.
A: Acclimate and train all persons in safe hiring responsibilities, especially hiring managers.
F: Facilitate and implement the program.
E: Evaluate and audit the program, since an organization typically only accomplishes what it audits, measures and rewards.
A critical part of the program is the use of the â€œA.I.R.â€ process for employers, which stands for Applications, Interviews and References. By utilizing an AIR process, employers have the opportunity to weed out a number of potentially bad applicants in the first place.
To view the article, see AIR Process Article
The processes are explained in more detail in the upcoming book by ESR entitled, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplaceâ€ available in August, 2004 from BRB Publications (512 pages). See: Safe Hiring Manual
3. European Union Privacy Laws Affect Pre-employment Screening by US Employers
American firms are increasingly finding that background data must be obtained on individuals who have spent time abroad. When conducting international background checks, it is critical to understand the application of foreign privacy laws to the manner in which information is obtained, transmitted and utilized. The central issues are data privacy and protection. A U.S. employer must be careful not to run afoul of privacy laws.
Important privacy laws that concern employers are the laws dealing with the European Union (EU) privacy rules. These rules went into effect in 1998. The European privacy rules impact the transmissions of â€œpersonally identifiable dataâ€ from offices in EU countries to businesses in the U.S. The primary impact that the EU Privacy rules have on international screening is that firms that acquire data on individuals from European countries that are members of the EU, without complying with the rules, can be in violation of EU law. That can have a serious impact, especially if a firm operates internationally, and has offices or facilities or does business in an EU country.
A firm can become Safe Harbor certified by following the guidelines listed at the Department of Commerce web site at http://www.export.gov/safeharbor/index.html. For compliance purposes, a background firm that obtains data from an EU country should be Safe Harbor certified. A listing of firms on the Safe Harbor list can be found at http://web.ita.doc.gov/safeharbor/shlist.nsf/webPages/safe+harbor+list.
Under the category, Employment Services, there are three firms listed that are primarily background screening firms. They are:
Kroll Background America, Inc. (http://www.baionline.net)
Verifications, Inc. (http://www.verificationsinc.com/)
Employment Screening Resources (www.ESRcheck.com)
For more information on international background checks, see: http://www.esrcheck.com/international.php
4. ESR Safe Hiring Seminar Schedule
ESR is please to participate in the following seminars across the United States:
November 17, 2004—Tampa, FL â€œSafe hiring and Pre-employment Screening.â€ A full day seminar for employers on how to avoid criminals, imposters and terrorists in the workplace. Contact ESR for details.
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
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945