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Sept. 2004 Vol. 4, No. 9
Employment Screening Resources (ESR) Newsletter and Legal Update
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 â€œco-employmentâ€ 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 â€œscreenâ€ 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, â€œThe Safe Hiring Manualâ€”The Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplaceâ€ (Facts on Demand Press–512 pages). The book is available online through the publisher, Amazon.com, Borders Books and Barnes and Noble.
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 â€œsafe havenâ€ 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
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.
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)
1620 Grant Avenue, Suite 7
Novato, CA 94945