Yearly Archives: 2005

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)

December 2005 Vol. 5, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Background Checks on Santa Claus

2. Spotting Diploma Mills and Worthless Degrees

3. Danger! Using At –Home or Foreign-Based Operators for Employment Verifications and Background Checks

4. ESR Announcements and Seminars


1. Background Checks on Santa Claus

It is the time of year when retailers across the US are hiring Santa’s to sit in malls and retail stores to hear what children want for Christmas. However, some retailers and shopping malls are reporting that it has become more difficult to hire a seasonal Santa Claus because many candidates do not pass the background check.

Retailers potentially have an even greater duty of due diligence when it comes to hiring a Santa due to the particular risks involved. Santa’s have close contact with children. Even though a parent may be nearby, children are uniquely at risk with an unsuitable Santa. Not only are children a vulnerable group in general, but a child may instinctively trust the big, round jolly man in a red suit and white beard. Unfortunately, anyone can buy a red suit and beard for less than $50.

According to press accounts, background checks on Santa’s have revealed job candidates with child molestation convictions and other unsuitable elements in their background. Yes, background checks on prospective Santa’s can help to reveal which potential Santa has been naughty or nice.

So, without wanting to be the Grinch that cast a pall on the Holiday season, it is good practice for any retailer, property manager or staffing agency to ensure that the season is not spoiled by a bad Santa.

In the spirit of the holiday season, ESR performs background checks at no cost for its clients on candidates for Santa’s job.


2. Spotting Diploma Mills and Worthless Degrees

An important measure to take in the fight against false claims in the employment process is verifying educational claims. As detailed in the “Safe Hiring Manual,”

Educational credentials can be an important part of an employer’s decision-making process in hiring. Educational achievement tells an employer a great deal about an applicant’s ability, qualifications and motivation. Many employers feel that educational qualifications are a critical factor in predicting success on the job. For many positions, education is a prerequisite in terms of subject matter knowledge or for obtaining the appropriate license for the position.

Studies that examined resumes and applicants’ forms have shown that as many as 30% of all job applicants falsify information about their educational backgrounds. These falsifications can include outright fabrication such as making up degrees from legitimate schools the applicant never attended or valueless degrees from diploma mills.” (Page 221 of the “Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” by ESR President Lester Rosen.)

Degree or Diploma mills are “fraudulent” colleges that offer potential students a degree with little or no actual work. They should not be confused with schools that offer legitimate and valuable distance learning. A degree mill identification process should include the following steps:

  • All institutions of higher education should be compared to databases of schools accredited by recognized accreditation agencies.
  • If a school is not accredited by a recognized accreditation agency, the school should be compared to a comprehensive list of diploma mills.
  • If a school is not accredited and has not been identified as a diploma mill, then the school should be researched and the research thoroughly documented. For example, the school’s web site should be examined to determine if the school claims an accreditation. Keep in mind that some fake schools have actually created fake accreditation agencies as well. The school web site also is reviewed to determine if there is a physical campus, course requirements for graduation, qualified faculty members, a library and other attributes of a school that can provide a real education that translates into qualifications for a job.

ESR follows these procedures for all educational verifications. For more information on how ESR tracks diploma mills on behalf of clients, contact Jared Callahan at jcallahan@ESRcheck.com or call 415-898-0044 ext. 240.


3. Danger! Using At -Home or Foreign-Based Operators for Employment Verifications and Background Checks

Some employers make the mistake of believing that all background screening is done the same way, so that selection ends up depending upon price. Unfortunately, employers who make the decision based upon price can find out the hard way that they did not get what they thought they were paying for. That is because there are ways for background firms to cut costs that leave employers vulnerable.

Here are two potential areas of concern for employers:

  • Using a screening firm that sends out confidential data to the homes of unsupervised home operators for employment verifications. Rather than using more expensive professionals in a controlled environment where there are higher levels of privacy protection, quality control, supervision and training, some firms cut corners by sending work to cheaper at-home workers. At-home workers typically work only as needed on a piecemeal basis, so a screening firm saves money. The at-home workers are unsupervised, and there are few real controls over who can see the confidential data, who is doing the work or if the work is being done properly according to standard procedures.
  • Equally troublesome is sending private and confidential data overseas, such as using foreign data centers or call centers to process data or to make domestic reference calls. Once data leaves the US shores, privacy protections become very problematic and quality control is also an issue.

Bottom line: An employer should seriously consider the implications of using a background-screening firm that utilizes “at-home” operators or foreign operators. An employer can ask its background firm to certify that all domestic work is done in the USA, and no domestic employment verification or data processing is done by people working at-home or outside of the USA.

In future issues, ESR will highlight areas that differentiate quality background screening from firms offering cheaper “knock-off” services.


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work. Features of this course include:

    • Convenient 24/7/365 availability through any online connection
    • 21 self-paced lessons on Safe Hiring practices
    • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
    • Review quizzes after each lesson featuring more than 300 questions about Safe Hiring
    • Easy access to useful Safe Hiring web-links
    • Sample Safe Hiring forms to help guide your own form development
    • Industry certification in Safe Hiring
    • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective Safe Hiring program including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

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

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

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

January 20, 2006 Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

February 9, 2006 National Web conference “Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA) 

March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars 

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

Contact ESR for further details.


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), 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 2005 Vol. 5, No. 11

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New Federal Case Limits Use of Personality Tests in Hiring

2. Hospitals Face New Standards Effective January 1, 2006 for Verification of Professional Licenses

3. Why Employers Need to Carefully Review Background Screening Forms

4. ESR Announcements and Seminars


1. New Federal Case Limits Use of Personality Tests in Hiring

The Seventh Circuit Court of Appeals recently held that the use of a pre-employment psychological test that measures mental disorders is a violation of the Americans with Disabilities Act (ADA). The case involved a claim by plaintiffs who were denied promotion in a rental store chain after being administered tests that included the well-known Minnesota Multiphasic Personality Inventory (MMPI) test. According to the Court, that test measures traits such as depression, paranoia and mania, which can be used in diagnoses of certain psychiatric disorders. The test included questions such as:

“I see things or animals or people around me that others do not see.”

“I commonly hear voices without knowing where they are coming from.”

“At times I have fits of laughing and crying that I cannot control.”

“My soul sometimes leaves my body.”

“At one or more times in my life I felt that someone was making me do things by hypnotizing me.”

“I have a habit of counting things that are not important such as bulbs on electric signs, and so forth.”

The ADA generally prohibits unfair discrimination based upon the use of medical tests that are used pre-employment, or are not job-related and consistent with business necessity.

The employer argued the test was not a medical test since it was used only for vocational purposes related to employment decisions, and was not used to screen out applicants for clinical depression or other disorders. Nor was the test scored by a psychologist. Even though the plaintiffs were current employees seeking promotion, the employer did not argue that this test was job-related and consistent with business necessity, but rather sought a ruling that the test was not a medical test at all.

The Court disagreed. Drawing from EEOC guidelines, the Court ruled that the test violated the ADA because it could potentially be used to diagnose mental disorder, resulting in applicants being disqualified from jobs, pre-employment, based upon a medical test.

The bottom line for employers: There is no question that pre-employment tests can be extremely valuable when used correctly. However, employers need to exercise caution when utilizing personality tests on job applicants. Even though this case concerned just one test in particular, it could have implications on other tests as well. Employers need to make sure that any test administered does not violate the ADA limits on pre-employment medical testing.

The case is: Karraker v. Rent-A-Center, 411 F.3d 831; 2005 (7th Cir. 2005)

ESR clients, Employers and HR and Security consultants may obtain a copy of the case by contacting Jared Callahan via email at jcallahan@ESRcheck.com or calling 415-898-0044 ext. 240.


2. Hospitals Face New Standards Effective January 1, 2006 for Verification of Professional Licenses

Effective January 1, 2006, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) will require that hospitals and covered health care entities conduct Primary Source Verifications (PSV) on all licensed, registered or certified staff. The rule applies to both employees and contract staff, and also applies to the process of tracking license renewals as well. The new standard is contained in HR.1.20.

For hospitals and covered health care organizations, there is a logistical challenge in obtaining, tracking, updating and maintaining an audit trail for all employees who are required to be licensed, registered or certified. Licenses are typically checked when an employee is first hired, but covered entities must now verify the information from the primary source, track expiration and manage the process of updating records from the primary source in order to be in compliance.

To help hospitals and covered entities comply, ESR has created a special online service for its clients called the ESR PSVcheck Service. The online service manages and tracks the entire process in accordance with the new standards. For example, the online system generates automatic reports on all employees and contractors with licenses that are expiring in a specified time period. The ESR PSVcheck Service provides tools to conduct license verification for the primary source and to track all current and past licensees. Each department in the hospital can determine if it wants to conduct the Primary Source Verification itself, or outsource that task to ESR. During a JCAHO audit, all necessary information demonstrating compliance with the Primary Source Verification rule is instantly available using The ESR PSVcheck Service.

For more information on the ESR PSVcheck Service and how to be in compliance by January 1, 2006, contact Jared Callahan via email at jcallahan@ESRcheck.com or call 415-898-0044 ext. 240.


3. Why Employers Need to Carefully Review Background Screening Forms

An issue of increasing importance for employers is the legality of the authorization and disclosure forms signed by applicants. Not only is it critical for the forms to comply with requirements of the federal Fair Credit Reporting Act (FCRA), but there can also be state specific rules.

One example of specific state rules is California. In 2002, California passed a law that was later substantially amended that same year which created a number of very specific requirements for legally compliant forms. ESR participated in drafting language in the amended bill in 2002 and also testified in front of the California legislature.

Some of the special California rules are:

  1. The front page of any screening report requires specific statutory language.
  2. The Disclosure form that must be provided to applicant has a number of “only in California” requirements.
  3. A certification letter that an employer must provide to a screening firm.

It is especially critical for employers who hire in California to pay close attention to these requirements. That is because any failure by a background screening firm or Employer to follow these laws can result in substantial civil exposure.

California Civil Code section 1786.50 states:

(a) An investigative consumer reporting agency or user of information that fails to comply with any requirement under this title with respect to an investigative consumer report is liable to the consumer who is the subject of the report in an amount equal to the sum of all the following:

(1) Any actual damages sustained by the consumer as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.

(2) In the case of any successful action to enforce any liability under this chapter, the costs of the action together with reasonable attorney’s fees as determined by the court.

(b) If the court determines that the violation was grossly negligent or willful, the court may, in addition, assess, and the consumer may recover, punitive damages.

Employers who have questions about their current forms can send those to ESR for a review. Although ESR cannot give legal advice, ESR can review the forms in view of suggested best practices. For more information, contact Jared Callahan via email at jcallahan@ESRcheck.com or call 415-898-0044 ext. 240.


4. ESR Announcements and Seminars

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.
  • Online Safe Hiring course -In December, 2005, ESR will release a 15 hour online course for employers, human resources and security professionals based upon our book, The Safe Hiring Manual. It will include over 300 Quiz questions, a workbook and reviews. Upon completion of the course, the user will receive a Safe Hiring Specialist Certification. To our knowledge, this is the first and only opportunity in the US where a course is offered to individuals who are responsible for safe hiring and background checks in their organizations. The in-depth course is aimed specifically at this mission critical function.

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

January 20, 2006 Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted) 

March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars 

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

Contact ESR for further details.


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), 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.

Click here for upcoming HRCI certified workshops in the Bay Area. The workshop is free and attendees will receive 1.25 hours of Continuing Education credit!

(Reading time: Less than 5 minutes)

October 2005 Vol. 5, No. 10

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Ninth Circuit Case Effects Timing of Background Checks and Pre-employment Physicals

2. Five Common “Fibs” Told by Job Applicants on Resumes and Applications

3. Colleges and Universities Turning to Background Checks

4. ESR Quoted in SHRM Article on International Background Checks

5. ESR Announcements and Seminars


1. Ninth Circuit Case Effects Timing of Background Checks and Pre-employment Physicals

A Ninth Circuit federal case decided this year has a potential impact on employers who conduct both pre-employment background checks as well as job-related medical tests. In Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005), the plaintiff’s were seeking jobs with a major airline. They were issued conditional offers of employment contingent upon passing both their background check and medical examination. Their blood was drawn prior to the background checks being completed. According to the case, the airline then discovered a medical condition, and rescinded the job offers on the basis the applicants did not disclose the medical condition during the medical exams.

The plaintiffs sued for a violation of both the federal Americans with Disability Act (ADA) and also under the California law governing employment discrimination, the California Fair Employment and Housing Act (FEHA). The plaintiffs alleged that under federal law and California law, before a medical test can be performed, there must first be a “real” job offer on the table. Since the background check was not yet completed before the medical information was obtained, the plaintiffs argued that the employer had not met federal and state standards and had conducted a medical test before there was a job offer.

The court accepted the argument, ruling that in order to conduct a “post-offer” medical exam, the employer must have first evaluated all relevant and available non-medical information. Where the employer still has non-medical information to evaluate, such as a background check, it is premature to request a medical exam because there has been no job offer. The rule has two benefits for job applicants. First, it allows a job applicant to determine if they were rejected for medical reasons or some non-medical reason obtained in the background report. Secondly, it safeguards the applicant from having to reveal personal medical information prematurely. If the applicant is not offered the job, then they are not put in to a position of providing personal medical information for no reason.

The argument that the medical examination and blood sample were collected but not utilized until AFTER the background check was completed was rejected. The Court held that applicants have a right to not undergo a medical examination at all until there is a “real” job offer first. Both federal and state law allows an applicant to shield their confidential medical information until they know that if they meet the medical requirements, they have the job.

This case has a potential impact on any employer that conducts a medical examination post-offer but before actual employment begins. For example, an employer who conducts pre-employment physicals should consider waiting until the background check is successfully completed before performing a physical or any other medical procedure

ESR clients, Employers and HR and Security consultants may obtain a copy of the case by contacting Jared Callahan at jcallahan@ESRcheck.com or 415-898-0044 ext. 240.


2. Five Common “Fibs” Told by Job Applicants on Resumes and Applications

Every job applicant has the right to put their best foot forward and to accentuate the positive. However, when such efforts cross the line into fabrication and fantasy, employers need to be concerned. Based upon many years of performing background checks, here are five common “fibs” told by job applicants during the hiring process:

  1. Employment Inflation: Applicants give themselves a promotion in position by claiming an inflated job title or responsibility. An applicant may enhance a previous job from an assistant position to a management job, even though they never supervised anyone.
  2. Covering up Employment Gaps: Unexplained employment gaps are critical for employers. Without knowing where someone has been, it makes it harder to perform criminal checks and opens the possibility that an applicant may in fact have been in custody for a criminal offense. Stretching out job dates to cover up gaps in employment is a big problem.
  3. No Degree: There is a growing problem with applicants claiming degrees they do not have. This can stretch from claiming a degree for a school the applicant never attended, to turning some units into a BA or a BA into an advanced degree. Beware of applicants who claim the school made a mistake and then provides an authentic-looking degree. There are websites that will give anyone with a credit card a “genuine” imitation degree. When in doubt, send a copy of the supposed degree to the school for verification.
  4. Degrees from Fake School: Anyone with an e-mail address receives almost daily the opportunity to obtain a degree instantly- it only takes a credit card. Beware of diploma mills and phony schools. Some of the diploma mills are so sophisticated that they have even invented fake accreditation agencies. However, diploma mills should not be confused with legitimate distance learning schools that provide an education opportunity.
  5. Denying Criminal Records: It is critical to ask all applicants on both an application form and in an interview if they have a criminal record. Although a criminal offense may not automatically cause an employer to reject an applicant without some showing of business necessity, an employer who unwittingly hires someone with an unsuitable criminal record creates unnecessary risks for themselves, their workforce and the public, and creates the possibility of workplace violence or some other criminal act against co-workers, clients or the public.

The bottom line: Every employer has a duty to take reasonable precautions to hire individuals who are qualified and fit for the job. An employer who fails to exercise due diligence opens up the possibility of workplace violence, fraud, theft and lawsuits for negligent hiring.

For details on how to implement a Safe Hiring Program to avoid the legal and financial nightmare of a bad hire, ESR President Les Rosen has written, The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of the Workplace (512 pages/Facts on Demand Press)


3. Colleges and Universities Turning to Background Checks

A new hot-button issue at colleges and universities is whether background checks should be performed on professors. Colleges and universities have the same due diligence obligation of any employer when it comes to background checks of regular staff members. However, screening professors became an issue as a result of recent highly publicized developments in the academic world. A large East Coast university discovered that a professor that taught there for four years had murdered three people forty years earlier. In another incident, a school in the western part of the US allegedly hired a faculty member three years after a child pornography conviction.

Such incidents have motivated some schools to institute background checks and still other schools to consider the possibility. Some of the arguments in favor of background checks for professors and teachers include:

  1. Colleges and Universities occupy a special position of trust in our society, where parents, taxpayers, alumni and donors have a perception that students are in a “safe” academic environment.
  2. Background checks demonstrate due diligence.
  3. Background checks may potentially discourage applicants that are unfit from applying for teaching positions in the first place.

Conversely, critics of higher education background checks in colleges and universities note that:

  1. Incidents of a faculty member with a criminal record harming student or co-workers have not been a significant issue in higher education.
  2. Given the unique environment of a college or university, faculty screening may cause a chilling effect on academic freedom.
  3. Utilizing a low-cost check based on databases has questionable ability to discover an applicant with disqualifying criminal records.
  4. Screening all professors is unnecessary. Although it may make sense to screen a professor with access to children, nuclear or biological material or military secrets, there is less value in screening, for example, a professor of European Art History.

However, the bottom line for colleges and universities is that even if one incident occurred that could have been prevented by a background checking program, legislators, alumni, parents and contributors will be demanding to know why a school did not exercise due diligence. In comparing the costs to the benefits, a background screening program provides a great deal of due diligence.

(The ESR newsletter will address the numerous practical and legal issues in involved in screening prospective students in a future issue)


4. ESR Quoted in SHRM Article on International Background Checks

  • ESR was featured in the October, 2005 edition of SHRM HR Management on international background checks. The article discussed the fact that international background checks are increasingly becoming part of an employer’s due diligence obligation. However, there are many practical challenges in obtaining information outside of the United States. One of the most significant challenges is legal compliance and data privacy protection.More information about International background checks is available at: http://www.esrcheck.com/international.php

5. ESR Announcements and Seminars

  • Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, starting in the San Francisco Bay Area and continuing throughout the US.
  • ESR wrote the book on background checks! – The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.

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

ESR Announces its Northern California Seminar series–”Avoid Negligent Hiring-Best Practices and Legal Compliance.”

 

Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep a business productive and out of court, including how to obtain and utilize criminal records and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.

Thursday, November 10 – Pleasanton/Dublin Four Points Hotel by Sheraton

Time: Check-in and refreshments: 6:00 to 6:30 pm

Program: 6:30-7:45 pm

ESR is an approved provider for continuing education credit from HRCI. This course provides 1.25 hours of continuing education credit. Written instructional material will be provided. There is no charge for the first 45 attendees. See: http://www.esrcheck.com/ESR_seminars.php to sign up and for more information. 

October 27, 2005 Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism 2005 HR Southwest Human Resources Conference and Exposition. www.hrsouthwest.com

November 10, 2005 Pleasanton/Dublin, CA Four Points Hotel by Sheraton ESR SPONSORED SEMINAR “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events. 

November 13, 2005 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

January 20, 2006 Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted) 

March 10, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars 

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum 

March 30, 2006 San Diego, CA. “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

Contact ESR for further details.


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), 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.

Alert: ESR joins all Americans in extending our thoughts and concerns to all affected by Hurricane Katrina. A number of county courts in parts of Louisiana, Mississippi, Alabama and Florida have been affected. For employers hiring in jurisdictions with searches affected by Katrina, ESR will closely monitor the situation. In the meantime, employers can consider making conditional job offers contingent upon the completion of searches in counties that are currently unavailable or delayed.

Click here for upcoming HRCI certified workshops in the Bay Area. The workshop is free and attendees will receive 1.25 hours of Continuing Education credit!

(Reading time: Less than 5 minutes)

September 2005 Vol. 5, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New California Court Case Clarifies Medical Marijuana Use and Employment Drug Testing

2. IRS Program Helps Employers Locate Former Employees for Distribution of Benefits

3. Florida Works to Ease Confusion Created by New School Background Checking Law

4. ESR quoted in SHRM and Safety & Health Magazines

5. ESR Announcements and Seminars


1. New California Court Case Clarifies Medical Marijuana Use and Employment Drug Testing

California employers who utilize drug testing received some clarification in September from the Third District Court of Appeals on the rights of employers dealing with job applicants who test positive for marijuana and have a medical recommendation to use marijuana under the California Compassionate Use Act.

According to the court’s opinion, a job applicant in California had a physician’s recommendation for marijuana use for chronic back injury under the California Compassionate Use Act (Heath and Safety Code section 11362.5) That California law provides that certain criminal statutes concerning marijuana use in California shall not apply to ill persons who utilizes marijuana for medicinal purposes upon the advice of a physician. However, such use is not recognized under federal law.

The applicant provided the employer with a copy of his physician’s written recommendation regarding the use of marijuana. The applicant then took a drug test for employment purposes. The drug test showed that he tested positive for the main chemical found in marijuana. The applicant, who had already started working, was suspended due to the drug test and then terminated. The applicant argued that the use of marijuana for medical reasons did not impair his ability to perform the job satisfactorily. The applicant sued for discrimination on the basis that that the California Fair Housing and Employment Act (FEHA) prohibits employment discrimination on the basis of a medical condition where the applicant is able to fulfill his or her essential duties with a reasonable accommodation.

In reaching the decision, the Court assumed that the applicant had a valid need for the medical marijuana and that the applicant could perform the job if the employer accommodated him by allowing him to utilize marijuana. However, the Court ruled that the use of marijuana was still illegal under federal law and the California discrimination laws did not compel the accommodation of medical marijuana usage in the workplace. As a result, an employer cannot be compelled to accommodate a medical marijuana user if they choose not to.

While recognizing that California law provides protection to medical marijuana users, the Court also noted that employers have an interest in who they hire. The court noted that, “Hiring of a new employee frequently represents a considerable investment on the part of the employer.” The Court also noted “well documented problems that are associated with the abuse of drugs and alcohol by employees—increased absenteeism, diminished productivity, greater health cost, increased safety problems and potential liability to third parties, and more frequent turnover…”

The court also indicated that employers faced practical problems. Allowing marijuana use in the workplace could potentially cause certain employers to be in violation of federal Drug-Free Workplace rules. Also, it can create challenges for employers to determine the validity and legitimacy of the employee’s use since unlike prescription drugs which are regulated, the California law only requires a physician’s oral recommendation. The Court noted that further legislative clarification is needed in this area.

The case is Ross v. Rafingwire Telecommunications, Inc. (Third District Court of Appeal, September 7, 2005) (2005 Cal.App. LEXIS 1407)

ESR clients, Employers and HR and Security consultants may obtain a copy of the case by contacting Jared Callahan at jcallahan@ESRcheck.com or 415-898-0044 ext. 240.


2. IRS Program Helps Employers Locate Former Employees for Distribution of Benefits

A common concern for employers is locating past employees to make a distribution from a pension, profit sharing or stock bonus plan that has been terminated and where the past employee is entitled to a distribution. Background screening firms are often called upon to assist in locating last known addresses.

The Internal Revenue Service (IRS) has a program available to employers to assist in locating past employees for these purposes. The IRS limits this service to 49 searches or fewer in a 12-consecutive month period, and does not charge a fee.

The program is set forth at the IRS web site at: http://www.irs.gov/retirement/article/0,,id=110139,00.html

The IRS does not give the employer the past address but will forward an appropriate letter. An employer must advise the IRS why such assistance is needed, as well as provide the past employee’s name, social security number and last known address, if available.

The letter being sent must be three pages or less, and advise the past employee why the letter is being sent, instructions on how to contact the sender and a statement that any reply is voluntary only and that the IRS is only forwarding the letter and has no involvement in the matter.

For employers who need to contact more than 49 past employees, screening firms are able to utilize pubic records and databases to help provide contact information. Contact ESR’s Jared Callahan at 415-898-0044 Ext. 240 for more information or email him at jcallahan@ESRcheck.com


3. Florida Works to Ease Confusion Created by New School Background Checking Law

A new law in Florida enacted this year to protect children from sex offenders has created considerable confusion due to requirements requiring criminal screening for workers visiting a school campus. School officials, contractors and private employers who work with schools have been burdened with expensive fingerprint checks required for each school district, leading to expensive repetitive background checks.

The law, which went into effect September 1, 2005, is known as the Jessica Lunsford Act, named after a 9-year old Florida child that was killed after being abducted from her home.

Florida Governor Jeb Bush has told reporters in Florida that the intent of the law was good, but that it needs to be implemented in a way that does not create a higher burden that is ultimately passed on to school districts. Several solutions are under consideration.

The Florida Department of Law Enforcement also announced last week that it would develop software that will allow school districts to share information.


4. ESR Quoted in SHRM and Safety & Health Magazines

ESR was featured in two prominent national publications recently. The August 2005 edition of SHRM HR Management carried an article “The Nexus of Ethics,” examining the impact of ethical behavior off the job to job-related situations.

The articles contained the following quotes from ESR President Les Rosen:

“A lot of behavior that an academic or a philosopher might rely upon [in assessing a person’s character] is just illegal to rely upon in a hiring situation,” says Lester Rosen, president and CEO of Employment Screening Resources, a pre-employment screening firm in Novato, Calif.

As with interviews, you need to make sure you stay within legal bounds. Even if you turn up a criminal record, for instance, you can’t automatically deny employment. “An employer needs a business justification not to hire based upon a criminal past,” says Rosen, author of The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace (Facts on Demand, 2004).

Within legal limits, though, a background check can provide a useful glimpse into a person’s past conduct both inside and outside the workplace. Rosen says, “It shows whether you’re hiring a person who has demonstrated that, given the right opportunity and means, he or she can be tempted to suffer a moral breach.”

A more controversial tactic is the use of credit reports. While behaviors ranging from compulsive gambling to substance abuse could lead to a high debt level or shaky payment history, so could a serious illness or a divorce. Because of such variables, Rosen says, the information in an employment credit report “is really only a valid predictor of job performance for jobs in which people handle money. Unless the employer can articulate a clear connection between what’s in a credit report and the actual job, the credit report could be viewed as an invasion of privacy and potentially discriminatory.”

Background screening was the cover story of the September 2005 edition of the national Safety & Health Magazine, a publication of the National Safety Council. The article quoted ESR extensively on the fundamentals of background screening. For a copy of the article, please contact Jared Callahan jcallahan@ESRcheck.com or call 415-898-0044 ext. 240.


5. ESR Announcements and Seminars

  • Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, starting in the San Francisco Bay Area and continuing throughout the US.
  • ESR wrote the book on background checks! – The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.

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

ESR Announces its Northern California Seminar series–”Avoid Negligent Hiring-Best Practices and Legal Compliance.”

Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep a business productive and out of court, including how to obtain and utilize criminal records and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.

Tuesday, October 11 – San Francisco

Thursday, November 10 – Pleasanton/Dublin

Time:

Check-in and refreshments: 6:00 to 6:30 pm

Program: 6:30-7:45 pm

ESR is an approved provider for continuing education credit from HRCI. This course provides 1.25 hours of continuing education credit. Written instructional material will be provided. There is no charge for the first 45 attendees. See: http://www.esrcheck.com/ESR_seminars.php to sign up and for more information.

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them Out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.

September 29, 2005–Milwaukee, WI “Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org

October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

October 11, 2005 ESR SPONSORED SEMINAR San Francisco, CA – Campton Place Hotel “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

October 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism 2005 HR Southwest Human Resources Conference and Exposition. www.hrsouthwest.com

November 10, 2005 ESR SPONSORED SEMINAR Pleasanton/Dublin, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

November 13, 2005 –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.


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), 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.

Click here for upcoming HRCI certified workshops in the Bay Area. Attendance is compliments of ESR and attendees will receive 1.25 hours of Continuing Education credit!

(Reading time: Less than 5 minutes)

August 2005 Vol. 5, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update


1. In the News: Convicted Killer Working in Nursing Home and Sex Offenders Working at a County Fair

2. Pennsylvania and Washington Pass Laws Protecting Employer References

3. Article: Multi-State Databases have Upsides and Downsides

4. ESR Announcements and Seminars


1. In the News: Convicted Killer Working in Nursing Home and Sex Offender Working at a County Fair

Newspaper articles from across the country underscore, each month, the dangers faced when employers fail to exercise due diligence in hiring. Here are just two recent examples:

July 16, 2005-Orange County, CA—A convicted and registered child sex offender was arrested at the Orange County Fair in Southern California, working for a carnival firm. The offender was on probation with a condition that he is not allowed in areas that attract children. He was recognized by a probation officer who was patrolling the fair. The sex offender was hired through a temporary agency that did not check the Megan’s Law database.

May 11, 2005—A convicted murderer who was recently paroled was hired to work as a janitor in a nursing home in Peoria, Illinois according to the Illinois Department of Public Health. According to a news article, the employee was released from prison last year after serving 12 years of a 28-year sentence. He was arrested at the nursing home while attempting to retrieve a package that was addressed to a patient and contained crack cocaine. There was no indication that a background check had been done.

These news reports underscore that employers that hire blind without exercising due diligence are playing Russian Roulette with their firm’s futures.


2. Pennsylvania and Washington Pass Laws Protecting Employer References

On August 14, 2005, a new Pennsylvania law went into effect that gives employers greater protection when responding to requests for employment reference checks. A similar measure went into effect in the state of Washington earlier this year. The purpose of these statutes is to encourage employers to share information by protecting them from lawsuits for defamation. According to an ESR survey, there are now 40 states that afford some degree of protection to employers.

The states with immunity statutes give employers varying degrees of protection. For example, the new Pennsylvania law creates a presumption that an employer is acting in good faith when giving information about a past employee when asked for it by a new employer or worker. In order to overcome that presumption, a plaintiff much show by clear and convincing evidence that the employer either knew, or should have known, the reference information was false, or was materially misleading. A plaintiff can also show that the employer gave the information with a reckless disregard of the truth, or the disclosure was in violation of a contract or some other state law.

The Washington law effective July 24, 2005, goes further and requires that an employer keep a record of the person or entity to which information is disclosed for a minimum of two years from the date of disclosure and allow an employee to inspect it. The Washington law also specifies that an employer is only presumed to be acting in good faith when the information pertains to the following:

(a) The employee’s ability to perform his or her job;

(b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or

(c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.

Not all states require a showing by clear and convincing evidence. For example, California Civil Code section 47c provides protection when another employer makes a request for past employment information, but the presumption is overcome by a simple preponderance of the evidence which is an easier standard for a plaintiff to meet. California did add language that authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.

Because various states approach this issue in different ways, employers should be aware of the law for their states and should seek legal advice if they have questions. Even with immunity statutes in 40 states, there are still potential issues when providing any information beyond dates of employment and job title.

For additional information about each individual state’s immunity, contact ESR at 415-898-0044 Ext. 240. ESR clients may obtain a copy of the ESR survey of all 40 states providing immunity by contacting Jared Callahan at jcallahan@ESRcheck.com


3. Article: Multi-State Databases have Upsides and Downsides

An article by ESR President Lester Rosen in the July 2005 edition of the Security Technology and Design magazine discussed the issues involved with national criminal database file checks. The article, entitled, Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly discussed the use of national criminal database files to supplement county court searches. The national databases are not a true FBI search but are a compilation of millions of criminal records from various sources, such as state repositories, county courts and correctional authorities.

The article reviews that criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level.. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.

However, multi-state databases are not nearly as accurate as county-level searches. The data comes from a variety of different sources, and there are issues as to completeness, accuracy and timeliness. A database search can be described as a mile wide but an inch deep, where a county-level search is a mile deep but an inch wide.

The article concludes that multi-state databases, although a valuable tool, represent a research or secondary tool only. They can act as good lead generators to tell a researcher where else to look. A database should supplement and not replace other safe hiring tools, such as on-site court searches of relevant counties, and the application, interview and past employment checking process.

The article can be found at: http://www.esrcheck.com/articles/Criminal_Databases.php

For information on running a multi-state database search to supplement county court searches, contact Jared Callahan at 415-898-0044, ext. 240 or by e-mail at: jcallahan@ESRcheck.com


4. ESR Announcements and Seminars

  • Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, staring in the San Francisco Bay Area and continuing throughout the US.
  • ESR wrote the book on background checks! – The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.

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

November 13, 2005 –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 10, 2005 ESR SPONSORED SEMINAR Pleasanton/Dublin, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

October 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism 2005 HR Southwest Human Resources Conference and Exposition.

October 11, 2005 ESR SPONSORED SEMINAR San Jose/Santa Clara, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 29, 2005–Milwaukee, WI “Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them Out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibition, Monday, September 12, 2005 at 1:30 PM. www.asisonline.org/

September 8, 2005 ESR SPONSORED SEMINAR Santa Clara, CA – Biltmore Hotel & Suites “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

September 6, 2005–Tucson, AZ “Human Resources, Terrorism & the Patriot Act”. See: 2005 Arizona SHRM State Conference

Contact ESR for further details.


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), 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.

Click here for upcoming HRCI certified workshops in the Bay Area. Attendance is compliments of ESR and attendees will receive 1.25 hours of Continuing Education credit!

(Reading time: Less than 5 minutes)

July 2005 Vol. 5, No. 7

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Terrorist Tools for Private Employers

2. Large Retailer Sued Over Failure to Screen

3. Group Dedicated to Memory of Murder Victim Urges Background Checks for All Home Service Workers

4. ESR Announcements and Seminars


1. Terrorist Tools for Private Employers

With the recent events in Europe, private employers may revisit the issues associated with keeping terrorists out of their workforce. Employers in sensitive industries, or involved with the country’s basic infrastructure, need to take appropriate measures to prevent terrorists form becoming employees. However, even employers that would not ordinarily consider themselves a potential target need to exercise caution because it is not predictable how a terrorist act may occur. Furthermore, an employer may simply be used as a place of employment while waiting to perform some future act.

The challenge, however, is that private employers do not generally have access to the type of governmental data that may be most effective. The challenge is increased when employers hire individuals who spent time abroad, necessitating an attempt to perform international background checks.

There are, however, a number of databases that are available to private employers. The most commonly used is a database maintained by the US Treasury Department called the Office of Foreign Asset Control (OFAC), that is responsible for administering US laws to impose economic sanctions against individuals, businesses and organizations hostile to the US. There are a number of other watch lists by other departments of the US government, as well international lists maintained by Interpol, the United Nations, Canadian authorities, the Bank of England and others. A screening firm can access a number of such lists for employers. For a list of the most commonly utilized terrorist watch lists available to private employers, see: Terrorists Lists

Before utilizing these terrorist lists, employers should consider the following:

  • As with any database, there is a significant possibility that a terrorist may not be on the list, or that a terrorist may change their name or take other steps to avoid identification.
  • These lists should only be used in conjunction with a combination of other safe hiring tools such as verification of past employment.
  • If there is a match, it is critical for an employer to take further steps to confirm identity. Applicants should not be the subject of discrimination merely due to a name similarity or nationality.

More in-depth information about international background checks and terrorist checks are available in ESR’s book, “The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace.” See The Safe Hiring Manual


2. Large Retailer Sued Over Failure to Screen

The need for employers to exercise due diligence in hiring was underscored recently by a lawsuit against retail giant Wal-Mart. According to a June 17, 2005 article in the Arizona Republic, a Phoenix law firm filed a suit against Wal-Mart for the negligent hiring of an employee who was accused of molesting several young girls, ages 3 and 4, in a store in Scottsdale. The employee allegedly committed one such act while passing out stickers to children. According to the plaintiff’s attorneys in the case, the employee had been accused of similar conduct in another retail store in the past, but Wal-Mart did not conduct a background check or supervise the employee properly.

According to the news article, Wal-Mart began a program of background checks on new sales associates in September 2004, but they did not check the criminal records of current employees hired before that time.

Although this case is only in the beginning stages, and there have been no factual determinations, this type of lawsuit is a good example of why employers need to exercise caution when they hire. Current employees, especially those who are placed in a position of authority in a retail store, who interact with a group potentially at risk, such as young children, can be screened by employers, provided that there is a written authorization and a disclosure under the Federal Fair Credit Reporting Act (FCRA).


3. Group Dedicated to Memory of Murder Victim Urges Background Checks for All Home Service Workers

On August 27, 2001, a worker sent by a well known home repair firm raped and murdered Sue Weaver in her home and then set the home on fire to destroy the evidence. Her killer was a twice-convicted sex offender that had been hired six months prior to clean her air ducts. According to a news article in the Dayton Beach News Journal Online, a civil case was settled for nine million dollars.

In response to the death, a group started an organization called The Sue Weaver CAUSE, CAUSE standing for “Consumer Awareness of Unsafe Service Employment,” to promote education and awareness in the memory of those that have lost their lives to unsafe service employment. See: http://www.sueweavercause.org/

The site gives the following advice before allowing a home service employee to enter your home:

  • Commit to only doing business with those service companies that perform criminal background checks on their workers and subcontractors.
  • Just because you trust the company you hire, it doesn’t mean the employees they send into your home are not convicted felons.
  • Criminals use their employment to find their next victim.
  • Bonded and insured does NOT mean a background check has been preformed on the worker.
  • Many major companies use subcontractors – you may not be hiring who you think.
  • Always ask for the name of the person who will be sent to your home.
  • Do not hesitate to say “No” if you do not feel safe when the worker arrives.
  • Commit to conduct background checks on anyone you hire to work in your home, e.g., care givers, maids, gardeners.
  • Do not be alone with service workers. Invite an adult to be with you while work is performed.

For additional advice on how to protect yourself, see: Home Protection Article


4. ESR Announcements and Seminars

  • ESR is pleased to offer a brief 4-page survey on best practices for pre-employment screening. The results will be published in a future newsletter. Your participation will help ESR to design new programs and procedures that help employers engage in safe hiring. See: Employment Screening Survey
  • Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, staring in the San Francisco Bay Area and continuing throughout the US.

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

November 13, 2005 –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 10, 2005 ESR SPONSORED SEMINAR Pleasanton/Dublin, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

October 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism 2005 HR Southwest Human Resources Conference and Exposition.

October 11, 2005 ESR SPONSORED SEMINAR San Jose/Santa Clara, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 29, 2005–Milwaukee, WI “Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them Out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.  

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibition, Monday, September 12, 2005 at 1:30 PM. www.asisonline.org/

September 8, 2005 ESR SPONSORED SEMINAR San Jose/Santa Clara, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

September 6, 2005–Tucson, AZ “Human Resources, Terrorism & the Patriot Act”. See: 2005 Arizona SHRM State Conference

July 28, 2005 ESR SPONSORED SEMINAR Emeryville, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.Contact ESR for further details.


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), 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)

June 2005 Vol. 5, No. 6

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Lawsuit Underscores Importance of Following “Only in California” Rules

2. ESR Quoted in SHRM Magazine on Safe Hiring-“Words to the Wise”

3. Four Reasons Employers Screen New Applicants

4. ESR Announcements and Seminars


1. Lawsuit Underscores Importance of Following “Only in California” Rules

A class action lawsuit recently filed in California underscores the importance of following specific state rules in hiring. For California employers, there are a number of “only in California” rules.

The plaintiff in that case alleged that a pre-employment screening firm headquartered out of state failed to follow California procedures. California Civil Code section 1786.29 requires specific language be placed in 12 point type on the front page of all screening reports. According to the allegations in the lawsuit, the required language was not included.

Although this case is only in the beginning stages, and the facts are far from being determined, the allegations underscore the critical need for employers to understand any specific laws in their own state. For example, California laws require certain certifications by an employer to the background firm above and beyond those required by the federal Fair Credit Reporting Act (FCRA), as well as particular rights and information that must be incorporated into any disclosure or authorization for a screening report by a background firm. There are also a number of special California rules when it comes to the reporting and use of criminal records for employment purposes.

It should be noted that ESR played a role in drafting the language of Civil Code section 1786 when it was amended in 2002, and also testified in front of the California legislature on the topic. Further, ESR provides clients with a 50 state guide to applicable state laws. See the Public version of the 50 state guide here: 50 State Guide


2. ESR Quoted in SHRM Magazine on Safe Hiring-”Words to the Wise”

The June 2005 edition of SHRM’s HR Magazine quoted ESR president Les Rosen from his presentation at the 2005 EMA Convention in Dallas, Texas. This was the fourth straight year SHRM invited him to speak at the EMA convention.

Under the heading, “Words to the Wise,” Rosen was quoted as follows:

“Humans are not wired to detect a potentially bad hire merely by detecting lies in an interview,” said attorney Lester Rosen, who is president of Novato, California-based firm Employment Screening Resources. That’s why it is critical for companies to conduct thorough background checks on every potential job candidate, he said.

“When asking about criminal convictions, use the broadest legal language for both felonies and misdemeanors,” said Rosen, adding that leaving out misdemeanors is a big mistake. “You can also ask about pending cases.”

“There are several red flags screeners should look for, including unsigned applications and background consent forms, blank criminal questions or self-reporting of offenses. Also check for omitted information and excessive cross-outs and unusual answers, such as unexplained employment gaps.”

More information about safe hiring is contained in the first comprehensive book published on background screening by Les Rosen, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace.” Click here for more information: SafeHiringManual


3. Four Reasons Employers Screen New Applicants

The following are the top four reasons to screen new applicants:

1. Deterrence of Potential Problems

Just having background screening can discourage applicants with something to hide. Making it clear that screening is part of the hiring process can deter potentially problematic applicants and discourage applicants with something to hide. An applicant with serious criminal convictions or falsified information on his or her resume is less likely to apply at a firm that announces pre-employment background checks are part of the hiring process.

2. Encourage Honesty

Many candidates who may have some blemish on their record may be well qualified for employment. However, employers need to be fully informed when making a hiring decision. Having a safe hiring program including background checks encourages applicants to be especially forthcoming in their interviews. Making it clear that background checks are part of the hiring process is strong motivation for applicants to reveal information about themselves they feel may be uncovered by a background check.

3. Fact-Finding

Although instincts play a role in hiring, basing a decision on hard information is even better. Effective screening obtains factual information about a candidate in order to supplement the impressions obtained from an interview. It is also a valuable tool for judging the accuracy of a candidate’s resume since screening limits uncertainty in the hiring process.

4. Due Diligence

Implementing a Safe Hiring Program helps an employer practice due diligence in their hiring, and is a powerful defense in the event of a lawsuit.


4. ESR Announcements and Seminars

  • The Safe Hiring training video featuring ESR President Les Rosen has just been released in a DVD format. The 23 minute training tape, produced by nationally recognized Kantola Productions, follows the fictional story of a company that makes a bad hire and discovers the steps to put in place to ensure it doesn’t happen again. As the story unfolds, Les explains the details of an effective safe hiring process, and sheds light on the legal background that employers need to know. See:http://www.esrcheck.com/safe_hiring_video.php
  • Employment Screening Resources (ESR), and Facts on Demand Press announced on April 8, 2005 the release of an updated and revised edition of “The Safe Hiring Manual—The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen, president of ESRThe new version contains updated information stemming from amendments to the federal Fair Credit Reporting Act (FCRA) in 2003, as well as new information about international background checks, legal decisions affecting an employer’s duty of due diligence, and new studies and statistics on the dangers of hiring without adequate pre-employment screening.

    A comprehensive blueprint for developing a program to hire safe and qualified employees, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, private investigators, and labor lawyers. The 512-page book details how to exercise due diligence throughout the hiring process, significantly increasing an employer’s chance of avoiding the financial and legal nightmares of even one bad hiring decision. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

  • See the new ESR free Interview Generator tool for employers. It is available at http://www.esrcheck.com/Interviewgenerator.php The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer. Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.

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

November 13, 2005 –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 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism” 2005 HR Southwest Human Resources Conference and Exposition.

October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 29, 2005–Milwaukee, WI ” Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.  

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibits, Monday, September 12, 2005 at 1:30 PM. www.asisonline.org/

September 6, 2005–Tucson, AZ “Human Resources, Terrorism & the Patriot Act”. See: 2005 Arizona SHRM State Conference

June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire. For more information click www.kennedyinfo.com/audio/Rosen

Contact ESR for further details.


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), 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)

May 2005 Vol. 5, No. 5

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New FCRA Document Destruction Rules Effective June 1, 2005

2. Background Checks Surge

3. Law Firms See Dramatic Increase in Negligent Hiring Lawsuits

4. ESR Announcements and Seminars; Safe Hiring Training Video Released in DVD Format


1. New FCRA Document Destruction Rules Effective June 1, 2005

New federal rules go into effect June 1, 2005 regulating the disposal of consumer information obtained under the federal Fair Credit Reporting Act (FCRA). The new rules were mandated by 2003 amendments to the FCRA, called the FACT Act. The rules were issues by the Federal Trade commission, the federal agency that enforces the FCRA.

The new requirements are aimed at destruction of consumer information obtained from a Consumer Reporting Agency. Pre-employment background reports would be covered by the rule. The stated purpose of the rule is to, “reduce the risk of consumer fraud and related harm, including identity theft, created by improper disposal of consumer information.”

Under the new rule, any employer who disposes of a consumer report must take appropriate measures. If the report was on paper, the key is to dispose of it by shredding the documents. If a third-party document destruction firm is utilized an employer should exercise some due diligence in the selection of the firm. If the information is in electronic form, appropriate measures must be taken to prevent the information from being read or reconstructed. (How long an employer should retain consumer reports was covered in a previous ESR newsletter).

Although the new rules are very narrow in focus and apply only to consumer reports from third party firms, it does underscore an important employer consideration—responsible information handling by businesses is a key element in combating identity theft. Employers need to take appropriate measures to keep all confidential and identifiable consumer data safe, including proper disposal practices. Shredding is the best practice for confidential information that is being disposed.

For an excellent report on proper information handling practices for employers, see The Privacy Rights Clearinghouse publication Prevent Identity Theft with Responsible Information-Handling Practices in the Workplace See: http://www.privacyrights.org/ar/SDCountyIT.htm


2. Background Checks Surge

According to a recent released statistic, the practice of conducting background checks is surging. The yearly ADP Employer Services Hiring Index found that background checks had risen 16% in 2004.

The study also demonstrates why employers are well advised to conduct these checks. The study found that:

Employment, education and or credential references: Fifty percent (50%) of checks conducted by ADP contained differences in information between what an applicant claimed and the facts obtained during the verification check

  1. Criminal records: Five percent (5%) of the records checked for criminal records located a record
  2. Driving records: Twenty-nine percent (29%) of applicants checked had one or more violations on their driving records.

Other studies have confirmed this trend. The increase has been fueled by a number of factors, including:

  • Highly publicized stories about sexual offenders abusing positions of trust in youth, charity or religious-based organizations
  • High profile cases of resume fraud, such as executives or coaches who fabricated credentials
  • The War on Terror and the events of 9/11leading to additional background checking rules
  • Highly publicized incidents of workplace violence, embezzlement and other workplace issues where an employer failed to perform a background check
  • Large jury verdicts in negligent hiring case where an employer’s failure to exercise due diligence resulted in grievous harm to children, co-workers, customers or innocent members of the public.

3. Law Firms See Dramatic Increase in Negligent Hiring Lawsuits

Fueling the increase in background screening has been an increase in negligent hiring lawsuits against employers. According to a news story recently posted on the Occupational Hazard website (http://www.occupationalhazards.com/articles/13107), a major national US law firm reported there has been a dramatic increase in the number of lawsuits brought against employers for negligent hiring. The lawsuits sought damages against employers for hiring workers accused of criminal, violent or other wrongful conduct, including acts that occurred during non-working hours.

This is consistent with an in-depth article written for lawyers on how to litigate lawsuits against employers for the criminal acts of their employees that indicated these kinds of lawsuits are one the fastest growing areas of tort litigation. (29 Am Jur Trials, Sec. 1)

This trend of suing employers for the acts of their employees is likely fueled by the amount of workplace violence that exists in the US workplace. Figures from OSHA suggest that every year, approximately two million Americans are victimized by some form of workplace violence, from verbal threats, to physical assaults and even homicides.

For more information on background checks, please contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@esrcheck.com


4. ESR Announcements and Seminars; Safe Hiring Training Video Released in DVD Format

  • The Safe Hiring training video featuring ESR President Les Rosen has just been released in a DVD format. The 23 minute training tape, produced by nationally recognized Kantola Productions, follows the fictional story of a company that makes a bad hire and discovers the steps to put in place to ensure it doesn’t happen again. As the story unfolds, Les explains the details of an effective safe hiring process, and sheds light on the legal background that employers need to know. See:http://www.esrcheck.com/safe_hiring_video.php
  • Employment Screening Resources (ESR), and Facts on Demand Press announced on April 8, 2005 the release of an updated and revised edition of “The Safe Hiring Manual—The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen, president of ESR

    The new version contains updated information stemming from amendments to the federal Fair Credit Reporting Act (FCRA) in 2003, as well as new information about international background checks, legal decisions affecting an employer’s duty of due diligence, and new studies and statistics on the dangers of hiring without adequate pre-employment screening.

    A comprehensive blueprint for developing a program to hire safe and qualified employees, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, private investigators, and labor lawyers. The 512-page book details how to exercise due diligence throughout the hiring process, significantly increasing an employer’s chance of avoiding the financial and legal nightmares of even one bad hiring decision. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

  • See the new ESR free Interview Generator tool for employers. It is available at http://www.esrcheck.com/Interviewgenerator.php The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer. Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.

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

November 13, 2005 –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 27, 2005–Dallas/Ft. Worth, TX –“Human Resources, Homeland Security and the War on Terrorism” 2005 HR Southwest Human Resources Conference and Exposition.

October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 29, 2005–Milwaukee, WI– ” Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibits, Monday, September 12, 2005 at 1:30 PM. www.asisonline.org/

June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire. Additional information to be posted on ESRcheck.com

June 8, 2005--Riverside, CA “Diligence in Selecting Staff, Volunteers and Mentors.” 9th Annual Inland Empire Nonprofit Conference.

May 18, 2005-San Mateo, CA ” Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” San Mateo County EAC Lunch meeting.

Contact ESR for further details.


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), as well as employers, Human Resource 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)

April 2005 Vol. 5, No. 4


1. ID Theft Lawsuit Underscores Need for Thorough Background Checks on Workers Handling Confidential Data

2. New Tools for Hospitals and Safe Hiring

3. Staffing Firms and Background Checks

4. ESR Announcements and Seminars; Safe Hiring Manual Updated and Revised Edition Available


ID Theft Lawsuit Underscores Need for Thorough Background Checks on Workers Handling Confidential Data

A lawsuit against an outsource services firm providing payroll and personnel services for a unit of state government underscores the importance of conducting background checks on employees with access to personal and identifiable data.

According to a recent news story, a state employee in Florida filed a lawsuit alleging that her personal financial information was stolen by a payroll worker who worked at a private firm handling payroll services. The complaint said that the employee suffered “damage to credit, inconvenience and emotional stress.” According to the news account, a routine check on the employee showed no offense, but it was later discovered that the accused had recently completed two years on probation for an auto-theft case.

Since the case is still pending, the full story on that particular incident is not yet known. However the allegations underscore a serious issue—firms that handle sensitive and identifiable personal data should run in-depth background checks on employees. Given the identify theft epidemic sweeping America, employers need to exercise due diligence in the hiring, retention and supervision of employees handling sensitive personal data.

The Privacy Rights Clearinghouse contains numerous resources on identity theft. See: http://www.privacyrights.org/index.htm

Employers should also review the publication, Prevent Identity Theft with Responsible Information-Handling Practices in the Workplace. See: http://www.privacyrights.org/ar/SDCountyIT.htm


New Tools for Hospitals and Safe Hiring

Hospital and health care organizations have new tools available to help meet their due diligence obligations in hiring.

1. Sanctions databases: Hospitals now have available a one-stop sanctions database to search for disciplinary actions taken by federal agencies as well as those taken by licensing and certification agencies in all 50 states. Over 700 sources are available. Included are two searches that most health care institutions currently conduct; the Office of Inspector General (OIG) (http://exclusions.oig.hhs.gov/search.html) and the General Services Administration (GSA) list of excluded parties (http://www.epls.gov/).

2. Sexual Offender searches: Hospitals can also run searches for registered sexual offenders. However, employers should be aware of the limitations on these searches, as outlined in the January, 2005 edition of the ESR newsletter.

3. National Criminal Data Files: Another tool available to hospitals are the national criminal database files. These are databases assembled by private firms that draw data from multiple criminal record sources from 47 states and the District of Columbia. It includes criminal data from criminal courts, state criminal record repositories, probation, prison parole and release files, sex offender registries and other government agencies. However, users should be aware that as with any database, this is a research tool only, and under no circumstances is a substitute for a hands-on search at the county level. Databases are subject to both false negatives and false positives.


Staffing Firms and Background Checks

One area where employers can be blindsided is working with temporary or staffing agencies. Employers would not intentionally bring people on the premises with criminal records that make them unsuitable for a particular job. Yet employers consistently hire temporary workers and independent contractors from staffing agencies with no idea who these people are. Employers hire temporary workers from agencies often without any assurance as to their background or qualifications. Given the sensitive information found on businesses computer systems, even one bad temp could do substantial damage.

Staffing firms may 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. Unless the staffing firm specifically tells the employer a criminal check is being done, an employer should not simply assume that a criminal check is being conducted.

An employer needs to carefully document what a staffing firm is doing because employers have a “co-employment” relationship with temporary workers. Even though workers may be on the payroll of a staffing agency, since the workers perform duties at the employer’s place of business, the employer can be liable for harm that the workers cause.

Staffing firms are also being more proactive in screening candidates before sending them to client locations. Some staffing firms have learned the hard way that failure to spend a few dollars to conduct due diligence can result in millions of dollars spent, should a dangerous criminal or imposter be sent to work for a client. Every worker sent by a staffing firm, PEO or recruiter into a client’s workplace has the potential to put the staffing vendor out of business. Also, employers are increasingly requiring such checks.

For more information on background checks and staffing firms, please contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@esrcheck.com


ESR Announcements and Seminars; Safe Hiring Manual Updated and Revised Edition Available

• Employment Screening Resources (ESR), and Facts on Demand Press announced on April 8, 2005 the release of an updated and revised edition of “The Safe Hiring Manual—The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen, president of ESR

The new version contains updated information stemming from amendments to the federal Fair Credit Reporting Act (FCRA) in 2003, as well as new information about international background checks, legal decisions affecting an employer’s duty of due diligence, and new studies and statistics on the dangers of hiring without adequate pre-employment screening.

A comprehensive blueprint for developing a program to hire safe and qualified employees, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, private investigators, and labor lawyers. The 512-page book details how to exercise due diligence throughout the hiring process, significantly increasing an employer’s chance of avoiding the financial and legal nightmares of even one bad hiring decision. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.

• See the new ESR free Interview Generator tool for employers. It is available at http://www.esrcheck.com/Interviewgenerator.php The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer. Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.

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

November 13, 2005 –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, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibits, Monday, September 12, 2005 at 1:30 PM.

June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire.” Additional information to be posted on ESRcheck.com

May 18, 2005-San Mateo, CA. ” Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” San Mateo County EAC Lunch meeting.

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


Employment Screening Resources (ESR)
style=’font-size:10.0pt;font-family:Arial;color:black’>

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), 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)

March 2005 Vol. 5, No. 3

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Data Privacy and Background Screening

2. Texas Study Underscores Defects in Statewide and National Criminal Databases

3. Top 10 Signs You are Hiring a Lawsuit Waiting to Happen

4. ESR Announcements and Seminars


1. Data Privacy and Background Screening

A series of recent news articles concerning the theft of consumer data from database companies has raised serious issues concerning the privacy of consumer data. According to news accounts, ChoicePoint, a major national data firm, was the target of criminal intruders who obtained information on more the 170,000 Americans with at least 750 cases of stolen identity. LexisNexis, which owns another large database company, recently announced that intruders had obtained files on 32,000 Americans. Adding to the situation was the revelation that Bank of America lost digital tapes containing the credit card account records of 1.2 million federal employees, including 60 U.S. senators. The situation has resulted in hearings before the United States Senate.

It appears that these thefts, however, were not related to pre-employment background screening. The thefts were apparently from the divisions that supplied data without consent. When employers request information on a prospective applicant, the request is controlled by the federal Fair Credit Reporting Act (FCRA), which is widely considered the gold standard of consumer privacy protection. An applicant must specifically consent and receive a disclosure of their rights. The process is subject to intense legal regulation.

ESR values consumer privacy and protection of confidential consumer data, and therefore takes all measures to protect and safeguard data. For an employer to utilize it’s pre-employment screening services, ESR goes through a “know your client” procedure in accordance with FCRA section 607(a) in order to establish that the client is a legitimate business with a permissible purpose for the background data. In addition, ESR does not research or supply a social security number. The ESR social trace service requires the employer to submit the applicant’s social security number, and ESR will provide certain information about a provided SSN only. ESR also operates under state of the art encryption and Internet security.

In addition, ESR is a member of the Better Business Bureau (BBB) Online Privacy Program.

For information about the ESR privacy policies, contact Jared Callahan at 415-898-0044 or jcallahan@ESRcheck.com or see the ESR Privacy Policy online at http://www.esrcheck.com/partners/Privacypolicy.php


2. Texas Study Underscores Defects in Statewide and National Criminal Databases

A current hot issue in the news is efforts to utilize governmental databases to screen safety sensitive positions. However, studies demonstrate that relying upon governmental criminal databases can be dangerous.

According to a news story in the October 2, 2004 Dallas Morning News, the statewide criminal databases maintained by the Texas Department of Public Safety (www.txdps.state.tx.us) is utilized over three million times a year by public agencies and individuals. However, the state has only 69 percent of the complete criminal histories records for 2002. In 2001, the state had only 60 percent. Hundreds of thousands of records are missing. The article concludes that according to law enforcement officials, the public is at risk.

According to the article, “The problem is particularly acute in Dallas County, which has one of the worst records of reporting criminal convictions among metropolitan areas. In 2002, less than half the convictions in Dallas County made it into the state database. The year before, it was one out of every five.”

One District Attorney in Texas stated, “Anyone who depends on the state database for a full and accurate check is foolish.”

The news story also concluded that as bad as the situation in Texas appears, it is better than in many states because the “FBI estimates that slightly fewer than half of convictions make it into a national database.”

See the Dallas Morning News web site at: http://www.dallasnews.com/


3. Top 10 Signs You are Hiring a Lawsuit Waiting to Happen

Employee lawsuits often catch employers by surprise. Yet, an examination of the employee’s application shows that an employer could often have predicted, well in advance, that they were hiring a lawsuit just waiting to happen.

By looking for the following ten (10) danger signals, an employer can avoid hiring a problem in the first place.

  1. Applicant does not sign application. An applicant with something to hide may purposely not sign the application form so they later cannot be accused of falsification.
  2. Applicant does not sign consent for background screening. When a firm uses an outside agency to perform screening, federal law requires a separate disclosure and consent. A background consent form protects employers in two ways: It discourages applicants with something to hide and encourages candid interviews. If a firm does not perform some sort of screening, they become the employer of choice for problem applicants. If a candidate fails to sign the consent, that is not a good sign.
  3. Applicant leaves criminal questions blank. An applicant with a past problem may simply skip the questions about criminal records. Every employment application should ask, in the broadest possible terms allowed by law, if the applicant has a criminal record. Most jurisdictions only permit questions about convictions and pending cases. Employers make a big mistake if they only ask about felonies since misdemeanors can be extremely serious. Although employment may not be denied automatically because of a criminal conviction, an employer may consider the nature and gravity of the offense, the nature of the job and the age of the offense in evaluating whether there is a sound business reason not to employ someone with a criminal record. If an applicant lies about a criminal record however, the false application may be the reason to deny employment.
  4. Applicant self-reports a criminal violation. Just because an applicant self-reports an offense does not eliminate the possibility of other offences, or that it was reported it in a misleading way to lessen its seriousness. An employer is well-advised to check it out.
  5. Applicant fails to explain gaps in employment history. It is critical to look for unexplained employment gaps. There can be many reasons for a gap in employment. However, if an applicant cannot account for the past seven to ten years, that can be a red flag. It is also important to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.
  6. Applicant fails to give sufficient information to identify a past employer for reference checks. If an applicant does not give enough details about past employers, that can be a sign of trouble. Verifying past employment is a critical and important tool for safe hiring. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even if a reference check only reveals dates of employment and job titles, this critical information eliminates employment gaps. In addition, documenting the fact that an effort was made will demonstrate due diligence.
  7. Applicant fails to explain reason left past jobs. Past job performance can be an important predictor of future success.
  8. Explanations for employment gaps or reasons for leaving past jobs do not make sense. A careful review of this section is needed and anything that does not make sense must to be cleared up in the interview.
  9. Excessive cross-outs and changes. Can be an indication that an applicant is making it up as they go.
  10. Applicant failed to indicate or cannot recall the name of a former supervisor. Another red flag. Past supervisors are important in order to conduct past employment checks.

These danger signs assume employers are using an application form. Some employers put their firms at risk by just using resumes. However, using an employment application is considered a best practice. Resumes are not always complete or clear. Applications ensure uniformity and all needed information is obtained. It also protects employers from having impermissible information a resume may contain, and provides employers with a place for applicants to sign necessary statements that are part of the hiring process.


4. ESR Announcements and Seminars

  • 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 pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.
  • See the new ESR free Interview Generator tool for employers. It is available at http://www.esrcheck.com/Interviewgenerator.php The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer. Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.

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

November 13, 2005 –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, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours

September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.

September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibits, Monday, September 12, 2005 at 1:30 PM.

June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire. Additional information to be posted on ESRcheck.com 

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).

Contact ESR for further details.


Employment Screening Resources (ESR) 

www.ESRcheck.com

1620 Grant Avenue, Suite 7 

Novato, CA 94945

415-898-0044

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