Yearly Archives: 2006

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.

ESR’s offices will be closed on December 25th and January 1st in observation of the holidays. The entire staff at ESR sends their best wishes for the holiday season.

(Reading time: Less than 5 minutes)

December 2006 Vol. 6, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New Study: Background Screening Reduces Discrimination in Employment

2. Handling False Education Claims in the Employment Application

3. FBI Criminal Databases – Good But Far From Perfect

4. ESR Announces 2007 Speaking Schedule


1. New Study: Background Screening Reduces Discrimination in Employment

According to a press release issued by the University of Chicago on Nov 21, 2006, a new study found that employers who performed background checks ended up hiring more black workers, especially black men. The reason, according to the study? In the absence of a criminal background check, some employers may use race to infer past criminal activity. A survey of 3,000 establishments in some major American cities found that employers who are averse to hiring ex-offenders were the most likely to statistically discriminate.

The bottom-line: Criminal background checks can actually help prevent discrimination by proving applicants do not have criminal records, and thereby overcoming assumptions employers may make. Making criminal records harder to obtain can have the unintended consequence of harming law-abiding citizens. According to the authors of the study, curtailing access to criminal history records may actually harm more people than it helps and aggravates racial difference in labor market outcomes.

The article is Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers. Journal of Law and Economics: 49:2 (Authors: Harry J. Hold, Steven Raphael and Michael A Stoll)


2. Handling False Education Claims in the Employment Application

A recurring issue for employers is how to handle falsified educational credentials. False education is becoming an important issue for employers. Falsifications can range from claiming completion of degrees that were never completed, to presenting a worthless ‘degree’ obtained from a diploma mill, or even online printing services that provide very authentic looking fake degrees ostensibly from well known schools.

If a job requires an educational credential that an applicant fakes, it is fairy clear that such an act of dishonesty can be the basis to not hire.

However, what if a degree was NOT a job requirement. The problem of course is that if a candidate is willing to claim a false educational accomplishment, then that may undermine their honesty and veracity. On the other hand, the argument can be made that if there is no educational requirement that a false claim is irrelevant because it is not needed for the job.

To help employers handle such situations, one suggestion is to change the language on the employment application to the following:

Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision.

This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job.


3. FBI Criminal Database – Good But Far From Perfect

Contrary to popular belief, obtaining a criminal record is not as easy as going on a computer and getting a thumbs up or a thumbs down. There are over 10,000 state and federal courthouses in the United States, spread out over some 3,300 jurisdictions, each with its own records file. There is simply no national computer database of all criminal records available to private employers. Period. End of story.

Yes, the FBI and state law enforcement have access to a national computer database called the National Crime Information Center (NCIC). However, it is absolutely illegal for most private companies to obtain criminal information from law enforcement computer databases without specific legal authorization. Examples are laws passed to authorize fingerprinting of teachers.

However, even the FBI database has significant drawbacks. First, the database relies primarily on the states to report. There can be significant differences between the states in the accuracy, timeliness and completeness of their reports. It can even vary from county to county. Secondly, the database is primarily an arrest database. The final disposition (or outcome) is often not reported.

The bottom-line: Even though the FBI database is a good source of information, it is currently far from perfect. For employers and organizations that have access to the FBI data, they need to keep in mind there can still be errors and criminal convictions can slip through the cracks. The best advice is to supplement any fingerprint search with a courthouse search of relevant counties.

Based on chapter 12 from, The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of the Workplace, by ESR President Lester S. Rosen (Facts on Demand Press/512 pages). See: http://www.esrcheck.com/SafeHiringManual.php


4. ESR Announces 2007 Speaking Schedule

See 2007 Schedule Below:

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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 is pleased to participate in the following seminars across the United States

ESR 2007 Schedule

January 26, 2007 Scottsdale, AZ “Pre-employment Screening,2006 Annual Conference for the Consumer Data Industry Association (CDIA)

January 29, 2007National Teleconference on Screening Applicants Using Social Networking Sites: Legal or Liability? Lorman Seminars

January 30, 2007 Stockton, CA “Everything You Wanted to Know About Pre-employment Screening,Lorman Seminars

April 3, 2007 Sacramento, CA “Everything You Wanted to Know About Pre-employment ScreeningLorman Seminars

April 23/24, 2007 New Orleans, LA “Avoid Negligent Hiring-Best Practices and Legal Compliance” and “Extreme Caution Advised: Dealing with Federal and State Laws Regulating Pre-employment Screening and Background Checks.” 2007 SHRM Staffing Management Conference

June 8, 2007 Pasadena, CA “Everything You Wanted to Know About Pre-employment Screening,Lorman Seminars

June 10-13 Boston, MA PRIMA Conference (details to follow)

June 25/26, 2007 Las Vegas, NV “Negligent Hiring Mock Trial” and “Legal and Effective Reference Checking and Education Verification.” SHRM 59th Annual National Conference and Exposition.

Fall, 2007 Bangalore, India International Pre-employment Screening Conference (details to follow)

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.

ESR’s offices will be closed on November 23 and 24 in observation of the Thanksgiving Holiday. The entire staff at ESR sends their best wishes for the holiday season.

(Reading time: Less than 5 minutes)

November 2006 Vol. 6, No. 11

Employment Screening Resources (ESR) Newsletter and Legal Update


1. “Non-Criminal” Offenses And Violations Can Trip Up Employers

2. Court Rejects Claim That Background Firm Not Responsible For Accuracy Of Court Researchers

3. Recruiters And the Background Screening Process

4. ESR Offers First Online Professional Development Course For Employers On Safe Hiring And Background Checks


1. “Non-Criminal” Offenses And Violations Can Trip Up Employers

Employers need to proceed with caution before utilizing “non-criminal” offense records. Some states, such as New York and New Jersey, have created categories of minor offenses that are specifically deemed to be “non-criminal.” Examples of such offenses can be traffic violations or violations related to “disturbing of the peace.” New Jersey has a system for “offenses,” which are typically brought in lower courts in order to expedite less serious matters. An expert in New Jersey criminal searches states that a “non-criminal” offense can be brought in over 500 municipal courts for offenses that do not exceed six months in custody.

For the unsuspecting employer, this “non-criminal” case can cause complications. For example, assume a job candidate stated in their application that they have not been convicted of a crime. A background screening report reveals that they do have a court record for disorderly conduct, in a state that has labeled such a record as being “non-criminal.” In that case, an employer cannot assume that the applicant has been untruthful, since technically the applicant was not convicted of a crime.

On the other hand, there is nothing that prevents an employer from utilizing information properly obtained that is a valid predictor or job performance, and non-discriminatory where state law has not prohibited the employer from considering it. The “non-criminal” disposition could have resulted from a more serious matter that may demonstrate behavior that is inconsistent with the job, such as violence. However, it is the underlying behavior that is being considered, and it can be difficult to discover the underlying factual basis of the “non-criminal” matter.

Most employers have questions in their application forms about past criminal convictions. Employers in states that have such non-criminal offenses may want to change the language on their application forms to include asking about “non-criminal offenses or violations,” provided there is no prohibition in their state about asking. Employers should contact their legal department or outside attorney to review their applications. Employers should also keep in mind that their applications should contain language advising applicants that a criminal conviction will not be used to automatically deny employment.

The bottom-line: if an employer locates such a “non-criminal violation,” they should proceed with caution and not assume the applicant has been untruthful.


2. Court Rejects Claim That Background Firm Not Responsible For Accuracy Of Court Researchers

A federal district court ruled that a background-screening firm could not escape liability for negligence on the theory that it merely resold information from a researcher, and had no responsibility for the accuracy of the data. In a 2006 case from the Eastern District of Kentucky, an applicant for a large employer was rejected because a background-screening firm reported that he had a conviction for driving under the influence. The conviction was purportedly confirmed by a date of birth and social security number match. When the applicant contested the report, the matter was re-investigated. It was discovered that although the real defendant had the same name, the court file had a different date of birth and in fact, the court file did not even contain a social security number.

In the lawsuit, the background firm blamed the research firm. The lawyers for the background firm argued that since the background firm was merely a “reseller” of the information given to it by the research firm, it had no responsibility for the accuracy of the data.

The court rejected that argument, ruling that the background firm still had responsibility to take measures to supervise its researchers in order to provide accurate information.

The bottom-line: Employers need to be careful to only use background firms that utilize appropriate due diligence measures to ensure that its researchers provide accurate information. This requires a duty of care in the selection of researchers and ongoing due diligence in the supervision of researchers, such as regular salting of orders given to researchers, and review of results for accuracy. That is another reason that the selection of a provider of a professional service such as employment screening should not be based entirely on price. A professional firm takes the extra time and effort to insure due diligence and legal compliance. Although that may cost a little more in the short run, using a professional services is probably is much more cost-effective in the long run.

For a copy of the case, please contact Jared Callahan at jcallahan@ESRcheck.com This story is not offered or intended as legal advice.


3. Recruiters And the Background Screening Process

An in-house recruiter is typically given assignments to fill a certain number of positions by hiring managers. Human Resources, or security departments, dictate the safe hiring protocol for the employer, such as the background screening process that the firm may use. In-house recruiters typically are under pressure to complete the hiring quickly. However, the process used for background screening usually takes up to three days. For large firms, even a one-day delay can have an impact, since many employers have a preset new employee orientation schedule. If a new hire misses the start date, then the new hire may have to wait a week or more before the next new employee classes begin.

 

In-house recruiters can help speed up the process in several ways;

First, the recruiter must understand the process can be delayed if screening firms are sent incomplete information, or forms that are not legible or completely filled out. For example, screening firms often face difficulty in deciphering an application in order to identify and locate past employers or read the social security number. If a “7” looks like a “9” that can cause issues. The screening firm then has to call the recruiter to clarify, in order to avoid having to guess. Recruiters who review all applications with the candidates before sending the applications to a screening firm will find their work is done much faster. This is simply a good practice for any employer or recruiter.

Second, an in-house recruiter needs to communicate with hiring managers so there are not unrealistic expectations. A hiring manager may not understand, for example, that criminal records are searched at each relevant courthouse, or that delays can occur if there is a potential match and the court needs to bring files from storage. Hiring managers must also be advised that employment and education verifications can be delayed for a number of reasons, such as schools that are on vacation or require a check or release to be mailed, or employers that are closed, merged or refuse to cooperate. If there is a delay in receiving a completed screening report, the recruiter should examine the source of the delay.

Third, if a recruiter is working with a screening firm that has an online ordering system, the process is considerably faster. Not only does this ensure accuracy, which makes the process faster, but it also avoids delays caused by sending a request to a screening firm and waiting for the firm to do manual data entry.

Finally, there are times when a recruiter may determine that even though the screening firm has not been successful in obtaining all of the information, enough data is available to make a hiring decision. This typically happens in the area of verifying previous employment. When doing employment verifications, often times the employment oldest in time is the most difficult to obtain. However, the oldest employment may be the least relevant. If the applicant, for example, worked in a fast food restaurant six years ago after getting out of school, and the fast food place will not call back, then there may be no reason to delay the hiring decision, especially if the screening firm has obtained the most recent, and presumably more relevant, job verifications.

The preceding information is taken from chapter 20 of The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of the Workplace, by ESR President Lester S. Rosen (Facts on Demand Press/512 pages). See: http://www.esrcheck.com/SafeHiringManual.php


4. ESR Offers First Online Professional Development Course For Employers On Safe Hiring And Background Checks

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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: http://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 is pleased to participate in the following seminars across the United States

Current 2006 – 2007 Schedule

November 29, 2006 San Francisco, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” The HRNetworx Click Here To View Website

December 5, 2006 Sonoma County, CA “Avoid Problem Employees: Effective Hiring in the Wine industryNCHRA Wine Industry Conference
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January 30, 2007–Stockton, CA–“Everything You Wanted to Know About Pre-employment Screening,Lorman Seminars

April 3, 2007 Sacramento, CA –“Everything You Wanted to Know About Pre-employment Screening” Lorman Seminars

April 23/24, 2007 New Orleans, LA “Avoid Negligent Hiring-Best Practices and Legal Compliance” and “Extreme Caution Advised: Dealing with Federal and State Laws Regulating Pre-employment Screening and Background Checks.” 2007 SHRM Staffing Management Conference

June 8, 2007 Pasadena, CA “Everything You Wanted to Know About Pre-employment Screening,Lorman Seminars

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 2006 Vol. 6, No. 10

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Employers, Consumers and Online Daters Beware: No Standard Definition for a “Background Check”

2. Terrorist List Can Impact Innocent Americans

3. SCAM Alert: New Hospital and Jury Duty Scams

4. ESR Speaking Schedule – from Napa to Tampa


1. Employers, Consumers and Online Daters Beware: No Standard Definition for a “Background Check”

The term “background check” has become a common phrase in today’s business vocabulary. There are numerous news stories about the need for background checks or efforts made by various organizations, such as churches, charities, or businesses to obtain “background checks.” More recently, “background checks” have become a popular topic in the online dating industry with some sites offering “background checks” before you meet that dream date.

However, there is one significant problem: There is simply no one definition as to what constitutes a background check. A “background check” can vary from a one county criminal check, all the way to an in-depth FBI type investigation that costs thousands of dollars.

Why is this important? Because employers and consumers can be mislead into making certain assumptions about a person because they have been the subject of a “background check.” The biggest assumption: That the person must be safe or qualified because they passed a “background check.”

Unfortunately, nothing may be further from the truth. Unless the business or individual relying on the background check knows exactly what was checked and when, and the limitations and value of the checking that was done, a “background check” is NOT necessarily the same as not being a criminal or having an authentic resume.

The area where there is the greatest potential for a false sense of security is probably criminal records. Dating sites and private employers do not have access to the official government criminal history, the National Criminal Information Center, or NCIC. That is only available to entities that have been approved by the government, such as schools needing to check teachers. Even that system is subject to errors.

Some websites tout that they are doing a background check by use of a so-called “national” multi-jurisdictional database sold by private firms. The problem with this database search is that it can give a “false negative,” where a person is cleared as being a non-criminal even though they have a criminal record. They can also give a “false positive,” which means a person is incorrectly identified as a criminal, even though they are not.

Although those “national” searches can be very valuable as one part of a real background check because it is national in reach, it is not a substitute for a criminal search of county courts at the courthouse level. These databases may have millions of records, but they are assembled from a hodgepodge of different sources and there are substantial issues as to their accuracy and completeness

The bottom-line: Employers, consumers and online daters should not be lulled into a false sense of security just because some site has performed a ”background check,” unless you know exactly what was checked, how it was checked and when.


2. Terrorist List Can Impact Innocent Americans

According to a recent news story, the son of Saddam Hussein, the former Iraqi dictator, was prevented from buying a house in Arcata, CA, a small town several hours north of San Francisco. The problem? The homebuyer was in no way related to Saddam Hussein. The buyer was born and raised in Michigan. However, when he went to buy his first home, his credit report was routinely checked against a government terrorist list. The buyer’s middle name was Hassan, and that was enough to trigger an alert, suggesting he could be the son of Saddam Hussein. Rather than exercise some commonsense and good judgment, the mortgage company, according to the story, denied financing.

This story once again underscores the danger of blindly utilizing databases without taking steps to investigate negative information. In this case, the database used was the US Treasury Department Office of Foreign Assets Control, or OFAC.

Following the events of 9/11, it was discovered that the terrorists were able to bring money into the United States to finance their activities. Part of the Patriot Act was designed to prevent money laundering that can be used for terrorism. Financial intuitions, which can even include car dealers and travel agents in addition to banks, are now required by law to increase their “Know Your Client” procedures, which include running clients’ names against the OFAC list.

However, use of the list has some drawbacks. First, the list has very few identifiers and is based primarily on name matching. The list currently has a large number of names of Middle Eastern origin, so misidentification can easily occur. Secondly, a terrorist presumably knows if they are on the list, and can take measures to use a different name.

As a result, the database can produce both” false negatives” and “false positives.” A false negative is where a person is in fact a terrorist but is able to circumvent the list so a database search falsely clears them. A “false positive” is where a person is mistakenly associated with a terrorist because of a potential match of the name or even part of the name.

The news story underscores the need to carefully examine the results of all database searches, and to understand that people can be missed or improperly identified. It is not entirely clear how a person who is a victim of misidentification can prove they are not the person on the list. There have also been news stories of Americans who are mistakenly on “no-fly” lists. A well-known United States Senator (and brother of a former president) even had difficulty getting off the “no- fly” list. A victim of misidentification may need to contact a lawyer to prepare documents showing that they are not the person on the list if they are having difficulty with a financial transaction.

More information about the OFAC database and 13 other commonly used global terrorist databases is available at: http://www.esrcheck.com/articles/article.php?article_id=TerroristSearchandPatriotAct.htm

To see if you are on the list, see: http://www.ustreas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf


3. SCAM Alert: New Hospital and Jury Duty Scams

Two new scams are in the news. According to the September 2006 Security Management Magazine (from ASIS), imposters have shown up at hospitals pretending to be inspectors from the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). For hospitals, a visit from a JCAHO inspector is a major event, similar to a health department inspector showing up at a restaurant. Since JCAHO now does unannounced inspections, the imposters had a better chance of getting in.

A fraudulent person on premises, of course, can do a great deal of damage. According to the story, the hospitals asked for identification, which resulted in the imposters leaving. However, the incident underscores that any security-sensitive facility needs to take measures to know who is on premises and not simply assume that an authentic looking badge, letter or uniform is for real.

Just when you thought you heard it all, here comes another scam. You get a phone call from someone who identifies themselves as a “jury commissioner” that wants to know why you did not show up for court. You may even be told that a warrant has been issued for your arrest. When you say you never received any notice, the “commissioner” asks for your full name, date of birth and social security number. Being a good citizen and not wanting to get arrested, you give that information over the phone in order to clear it up.

That is all a scammer needs to steal your identity and go shopping under your name! This reinforces a basic rule of modern day life: never give a stranger, or anyone over the phone, personal information, no matter what they tell you.

http://www.fbi.gov/pressrel/pressrel05/092805.htm


4. ESR Speaking Schedule – From Napa to Tampa

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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: http://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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

November 1, 2006-Palo Alto, CA-“Avoid Negligent Hiring-Best Practices and Legal Compliance.” The HRNetworx. Click Here For More Details

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY “Background Checks and Recruiting Practices and Legal Compliance” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 9, 2006–IPMA-HR audio conference–Public Sector Pre-employment Background Screening –Trends, Legal Developments and Best Practice Click Here For More Details

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) “The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers” See: http://www.searchforcrime.com/Conference/body.htm

November 20, 2006— IOMA audio conference–“Background Checks: Legal Use in the Hiring and Talent Management Process

November 29, 2007-San Francisco, CA-“Avoid Negligent Hiring-Best Practices and Legal Compliance.” The HRNetworx Click Here To View Website

December 5, 2006–Sonoma County, CA “Avoid Problem Employees: Effective Hiring in the Wine industry” NCHRA conference (details to be posted)

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)

September 2006 Vol. 6, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Emerging Trend: Discrimination Lawsuits from Ex-Offenders Rejected for Jobs

2. Dispelling Urban Myths: Credit Scores Not Used for Employment

3. Nominations for the Biggest Mistake Employers Make When Hiring

4. ESR Speaking Schedule – from New York to San Diego


1. Emerging Trend: Discrimination Lawsuits from Ex-Offenders Rejected for Jobs

Two events occurred recently that may show an increasing national trend: ex-offenders who are denied employment based upon their past criminal records seeking legal redress through discrimination lawsuits.

A continuing education event held this month in a large eastern state included discussions on how to sue employers and background firms for discrimination on behalf of job applicants denied employment due to a criminal record for discrimination. The discussion reportedly included legal aid lawyers who assist low-income persons in attempting to obtain employment, government lawyers and private lawyers who could take cases to sue employers and background firms.

A second event was a case handed down last month in Hawaii. A large national retailer discharged an employee who was being promoted to management and a criminal background check revealed a previous conviction for drug use. Apparently, there was no background check when he was first hired, and he did pass a drug test. A lower court dismissed the case but the Hawaii Supreme Court ruled that the consumer was allowed to proceed with his lawsuit since Hawaii law specifies that an employer may utilize a criminal record for hiring and termination provided “the criminal record bears a rational relationship to the duties and responsibilities of the position.” See: HRS Sec. 378-2.5(a).

These two events that took place thousands of miles apart taken together underscore that employers need to carefully examine the proper use and utilization of criminal records in the hiring process. Employers are caught in a classic Catch-22. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. Hiring a person with an unsuitable criminal record in the light of the work to be performed can expose an employer to lawsuits for negligent hiring, as well as place employees and the public at unnecessary risk. Newspapers are full almost every day of stories about workplace violence, children being harmed and lawsuits filed where businesses hired people who were dangerous, unqualified or unfit.

On the other hand, an automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. The EEOC also has made it clear that a criminal record cannot be grounds to automatically deny employment without business justification. (For a discussion on the laws concerning the proper use of criminal records, see chapter 11, “The Safe Hiring Manual,” by Lester S. Rosen, President of ESR (Facts on Demand Press/512 pages).

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. On the other hand, we do not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. For example, the National Association of Professional Background Screeners (www.NAPBS.com) has donated money to programs aimed at helping ex-offenders get back into the workforce.


2. Dispelling Urban Myths: Credit Scores Not Used for Employment

One of the biggest misconceptions in employment screening is that a person’s credit score is being utilized for employment. Recently a story in a major newspaper quoted experts on why credit sores should not be used for employment.

The problem: Credit sores are NOT used for employment purposes. When an employer does utilize a credit report for employment purposes, it is a special form of employment credit report that specifically EXCLUDES the credit score. The reason is simple – there is no rational relationship between a credit score and suitability for employment.

Typically, employers utilize credit reports for three reasons:

  1. To determine if the salary to debt ratio is appropriate. The idea is that if an applicant’s salary does not cover their current debt, there is a potential security issue;
  2. To determine if a person can handle their own financial affairs if they are going to be trusted with handling the employers money or assets;
  3. In the case of a sales position, to determine if a salesperson has the ability to rent cars, purchase airfare and other travel expenses needed to cover their territory.

However, the use of credit reports for employment can be sensitive since it shows among other things where and how a person spends money. Since it is difficult to “score” a credit report for employment purposes, the use of a credit report is often a judgment call.

Employers should approach the use of credit reports with caution for some of the following reason:

  1. The information on the credit report can be erroneous since it is gathered from numerous sources.
  2. Information may not be employment related. For example, if there are debts due to medical bills, that is not likely to affect a person’s suitability for a job.
  3. Employers should be very cautious using a bankruptcy for an employment decision.
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  4. The unjustified use of credit reports could create EEOC concerns.

For an article on credit reports and employment see: http://www.esrcheck.com/articles/article7.php


3. Nominations for the Biggest Mistake Employers Make When Hiring

ESR is asking its clients and readers to share their nomination for the Biggest Mistake employers make when they hire.

Every time an employer makes a hire, the stakes are high. Employees are not only a firm’s biggest source of expenditures and investment, but also a big source of risk. If an employer makes a bad hiring decision, a number of authorities suggest that the cost to an organization can be up to 2 to 3 times the person’s salary, taking into account not only the cost or replacing the person, but the cost associated with the work not being done correctly and the delays in finding and training the right applicant.

There are numerous books, courses, websites and seminars on hiring. Here is our first suggestion for the single biggest mistake a firm can make when hiring (based on seminars given by internationally known consultant Brian Tracy at http://www.briantracy.com):

Comparing candidates to each other instead of comparing them to the ideal candidate.

Many hiring managers make the mistake of settling for the best of the current group of applicants rather than waiting for the right one for the job. The primary reason is the need to hire quick to fill a position. However, if the employee “does not work out,” then the termination process can be painfully slow and expensive. Employers are so gun-shy of termination that many employers make it a slow process to make sure they have given the unsuccessful worker an opportunity to find a position where they can do no harm and failing that, they begin the long process of documenting the termination.

Instead of the common American practice of hiring quick and terminating slowly, managers should do the opposite—hire slowly but terminate quickly. Obviously, a slow hiring process where the employers hold out for who they are really looking for will lessen the need to worry about termination.

If you have a great piece of advice on how to hire to share, please e-mail your suggestions to Jared Callahan at jcallahan@ESRcheck.com for inclusion in a future ESR newsletter.


4. ESR Speaking Schedule – From New York to San Diego

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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: http://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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

September 30, 2006–San Diego, CA “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

October 3, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

November 20, 2006— IOMA audio conference–“Background Checks: Legal Use in the Hiring and Talent Management Process

December 5, 2006–Sonoma County, CA “Avoid Problem Employees: Effective Hiring in the Wine industry” NCHRA conference (dentils to be posted)

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)

August 2006 Vol. 6, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update


1. In The News: Cheap Background Checks Strike Again

2. Three Big Mistakes on Application Forms

3. Proposed Legislation in California Underscores the Dangers of Misclassifying a Worker as an Independent Contractor

4. ESR Speaks and Announcements


1. In the News: Cheap Background Checks Strike Again

Inexpensive criminal searches are back in the news once again, demonstrating why employers need to be careful when using cheap solutions to complicated problems. According to an article posted at azfamily.com on August 14, 2006, a fitness instructor was the subject of a background check by a local gym. The gym utilized a large national background firm that supposedly found a criminal record – a ten-year-old conviction for ID theft with three years probation.

The problem? It was the same name but not the same person. When a local reporter pulled the court file, it was discovered that the actual perpetrator had a different social security number, different date of birth and even a different race than the fitness instructor. The good news is that the reporter was able to get the report revised and the fitness instructor got her job. See: http://www.azfamily.com/news/3oys/stories/KTVK3OYS20060814_background-check.b71a6ad.html

Although the details concerning the exact search were missing from the story, this type of mistake can occur when an employer utilizes a cheap background database device commonly and mistakenly referred to as a “national” criminal search. The problem with a database search is that it can give a false negative or a false positive. A false positive can occur when the database results are reported without anyone going to the courthouse to review the actual court documents to look for identifiers, such as date of birth, to determine who the criminal record actually belongs to.

False negatives occur when a person is “cleared” that actually has an employment related criminal record. In a November 2004 newsletter, ESR related a news story about a firm in New York City that delivers groceries to people’s homes and found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a so-called “national” type of database search performed by a large national background firm. See: http://www.esrcheck.com/newsletter/archives/November_2004.php

The bottom-line: Although the “national” type searches can be very valuable as a secondary or back-up tool because it is national in its reach, it is not a substitute for a real criminal search of county courts at the courthouse level. These databases may have millions of records, but they are assembled from a hodgepodge of different sources and there are substantial questions as to their accuracy and completeness. Any positive results should be followed up at the courthouse to confirm details before being reported to an employer.


2. Three Big Mistakes on Application Forms

Employers have become increasingly aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check.

One of the most effective tools an employer has is the use of an application form in the hiring process. An application enables an employer to directly ask an applicant if they have a criminal record. The advantage is that an employer can use a well-worded application form to discourage applicants with something to hide, and encourage applicants to be open and honest.

Unfortunately, many employers use language in their applications that is either to narrow, too broad or too ambiguous. Each of these mistakes can put an employer in difficulty.

(1) Too Narrow: An example of a question that is too narrow is to only ask about felonies and not misdemeanors, which can be very serious. Most employers would want to know, for example, if an applicant had convictions for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in many states, such as California, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that they have not been convicted of a felony, even though they have serious misdemeanor convictions that an employer needs to know about.

(2) Too Broad: On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. There are a number of limitations under state and Federal law concerning what an employer may legally ask about, or discover, concerning an applicant’s or employee’s criminal records. In fact, it is illegal in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where they are forced to reveal information about themselves that they are legally entitled not to disclose, an employer can actually be sued for “defamation by compelled self-publication.” In other words, by being forced to say something defamatory about themselves, an applicant may be able to file a lawsuit for defamation against the employer.

(3) Too Ambiguous: The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor,” or a similar question that calls for an opinion. The problem is that an applicant is being called upon to make a judgment about their own offense. Whether a misdemeanor, for example, is serious can call for a very complex legal and factual determination on which lawyers could disagree. By asking a question that is ambiguous and leaving waffle room, an applicant can argue that in their mind, the offense was not serious and that their “no” answer was truthful. That is why the question cannot contain ambiguity.

Employers should have their attorney review their employment application to ensure it is using the broadest possible language that is legally allowed in your state. Although ESR does not give legal advice, more information on this topic generally can be obtained from ESR Compliance Director, Vince Pascarella, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Proposed Legislation in California Underscores the Dangers of Misclassifying a Worker as an Independent Contractor

A recurring issue for any business is to avoid the misclassification of workers as independent contractors when they are in fact employees. For an employer, classifying a worker as an Independent Contractor can have many advantages, such as avoiding payroll taxes, unemployment insurance or workers’ compensation. A firm can also avoid having a fixed payroll expense, or having to spend money for benefits such as health, vacation or retirement.

On the other hand, the federal and state governments have an interest in businesses putting workers on payroll to better ensure the collection and withholding of payroll taxes. States want employers to pay workers’ compensation premiums and unemployment insurance. As a result, the IRS and the states have a big stake in ensuring that businesses do not misclassify a worker as an “independent contractor” when in fact they should be on payroll.

A bill ending in the California State Assembly (AB2186) underscores the concern of state governments in the proper classification of workers. It states it is the “intent of the Legislature to prohibit the deliberate misclassification of employees as independent contractors … and to penalize intentional misclassification.” It provides penalties of $25,000 per worker that has been purposefully, willfully, or intentionally classified an independent contractor when they are in fact employees, and raises the stakes to $50,000 per worker if the employer has a pattern or practice of misclassifying.

Employers classifying workers as Independent Contractors are well advised to seek the assistance of their legal counsel or other qualified professional. A number of factors must be considered, but it often comes down to the issue of whether the worker is truly independent, or if they are an employee in disguise because the firm controls the manner and means of accomplishing the goals. Many employers have found out the hard way that the test is much more complicated than they thought.

This is also a potential issue for employers utilizing screening firms that use home workers to perform domestic employment and educational verifications. Not only does it raise issues of professionalism, and the protection and security of private data being sent willy-nilly into living rooms, kitchens and dorm rooms across America, but it raises additional concerns if the workers are misclassified. A screening firm that attempts to cut costs by using at-home operators as Independent Contractors may be running a large potential risk.

The bottom line: ESR strongly suggests that an employer think twice before utilizing any screening service that uses home operators, particularly if they are classified as Independent Contractors.

For more information on the use of home operators by screening firms, and concerns related to privacy, security, professionalism and classification of workers, contact ESR compliance director Vince Pascarella, an attorney at law, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


4. ESR Speaks and Announcements

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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: http://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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: 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.

(Reading time: Less than 5 minutes)

July 2006 Vol. 6, No. 7

Employment Screening Resources (ESR) Newsletter and Legal Update


1. In the news: Going Online to Research Candidates

2. Florida Lawsuit Questions if Fast Food Restaurants Have a Duty to Conduct Background Checks or Warn Minors if They are Working with a Sexual Offender

3. Say again? Ambiguous References

4. ESR Speaks


1. In the news: Going Online to Research Candidates

It has been a common practice for students graduating from college to investigate potential employers by running them on a search engine such as Google. However, according to a recent news article in the New York Times, the trend is now for employers to not only Google college students, but to research social networking sites as well, such as Facebook, or MySpace. The big problem for college students: social networking sites are intended for other students and often times will have pictures or commentary that they did not intend an employer to see. The predictable result is that some college students are finding difficulty getting interviews or callbacks. The article cited a specific case of a recruiter interviewing at a major East Coast university, who went to a student’s Facebook page. The recruiter was shocked to see explicit photographs and commentary about the student’s romantic escapades, drinking and pot smoking. It even included a picture of the young woman passed out as a result of drinking. That ended that job opportunity.

Because the employer or recruiters are going to the internet directly, and not engaging the services of a pre-employment screening firm, the federal Fair Credit Reporting Act (FCRA) is not involved. That means that an employer is not required to send an adverse action letter if they come across material that they find objectionable. As a result, students can find themselves effectively blacklisted and may not even know why.

Employers are well advised, however, to exercise caution before using the internet to do applicant research. An employer can face allegations of unlawful discrimination if the online research reveals information that may not be used directly, or indirectly, to limit a person’s employment opportunities, such as race, color, religion, national origin, ancestry, medical condition, disability, marital status, or sex (including pregnancy).

Job applicants are well advised to research themselves to find out what is potentially available on the web that potential employers may see.


2. Florida Lawsuit Questions if Fast Food Restaurants Have a Duty to Conduct Background Checks or Warn Minors if they are Working with a Sexual Offender

According to a July 2006 news report, a 16-year-old central Florida teenager has sued her former employer for Negligent Hiring where a fast food restaurant hired a convicted sexual offender as a supervisor, who molested the teenager. According to the suit, the teenage victim was fired after reporting what the convicted sexual offender did to her.

The ex-offender was a 27 year old on probation while working at a fast food place. One of the conditions of his probation was not to be alone with any minor.

Although it is not clear at this early stage if the employer did a background check, or was aware of the criminal background, the case rises interesting points: if the employer did, in fact, know the manager was a convicted offender on probation but decided to hire him anyway, was there an obligation to warn other employees of the danger, especially minors? Although Florida law creates a presumption that an employer was not negligent in their hiring if they perform a background check, there is apparently no statutory requirement that employees be informed of any danger if an offender is hired. According to the article, a state representative, Sheri McInvale, is reviewing existing law to give protection to minors in the workplace.

Part of the problem according to the minor’s lawyer is that in the fast food industry, which has high turnover, independent owners are not required to perform background checks. The lawyer indicated that they are already getting calls of similar events in other fast food establishments. See http://www.local6.com/print/9474803/detail.html

For information on how the Florida law operates to give employers protections, or more information on negligent hiring for your industry, contact attorney and ESR Compliance Director,Vince Pascarella, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Say again? Ambiguous References

Have you been asked to write a letter of recommendation for someone who does not deserve one and tried to figure out what to do? Have you received similar letters and are not sure what they really mean? Help is available in the form of the “Lexicon of Intentionally Ambiguous Recommendations (LIAR),” by Robert Thornton. This handy volume provides numerous examples of recommendations that can be read in more than one way. Here are a few examples:

  • You will be very fortunate to get this person to work for you (Meaning-She/He is not very industrious)
  • He could not have done a better job if he had tried (meaning-he/she is both lazy and incompetent)
  • He spared no effort in his work (he/she did as little as possible)
  • He would like nothing better than working for you (He would rather do nothing at all)
  • An employee like him is hard to find (He disappears frequently)
  • He is a man of many convictions (He has got a record a mile long)
  • There is no questioning his ability (meaning-he/she gets angry if you do)

4. ESR Speaks

  • 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 comple
  • 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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.http://www.kennedyinfo.com/audio/Rosen/

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: 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.

(Reading time: Less than 5 minutes)

June 2006 Vol. 6, No. 6

Employment Screening Resources (ESR) Newsletter and Legal Update


1. “Continuous Screening”— Factors to Consider

2. Hospitals and Health Care–JCAHO HR 1.20 Compliance

3. Staffing Firms and Screening

4. ESR Speaks at National SHRM Show in Washington, DC


1. “Continuous Screening”— Factors to Consider

In the news recently there have been articles on an evolving product called, “Continuous Screening.” The concept is that a background screening is typically conducted at the point of hire. However, it is possible that after a person is hired, an offense can be committed. A continuous screening program is aimed at running periodic criminal records checks, such as every two weeks or, monthly. These periodic checks have the potential to identify criminal cases that occurred after the person was hired.

However, there are a number of factors to consider:

Caution Using Databases: Since private employers generally do not have access to the FBI national criminal database, such ongoing screening programs are based upon running various proprietary criminal databases, and not by sending researchers to actual courthouses. It is critical to understand that multi-jurisdictional database searches are primarily a research tool only and is not a substitute for a hands-on search at the county level. In addition, not all states have a database that is available to employers, and even where data is available, there are substantial issues about how accurate it is. Databases in each state are compiled from a number of sources. The result is that such databases are a crazy quilt patchwork of data that is not necessarily complete, accurate or up-to-date.

  • False Sense of Security: Employers must clearly understand that because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is a criminal any more than the absence of a name shows he/she is not a criminal. There are many reasons why a criminal would not appear on a database search. The danger is that an employer can develop a false sense of security because a database can “clear” a person who is, in fact, a criminal, or inaccurately label an employee as a criminal when they are not.
  • FCRA Compliance For Accuracy: Even if there is a match, it should be verified by reviewing the actual court records. Under the Fair Credit Reporting Act (FCRA), there are mandatory procedures that must be followed to ensure the maximum possible accuracy of information. In addition, there are a myriad of state laws that control how criminal records can be utilized for employment purposes.
  • Consent Issue: In addition, employers must ensure that such searches are done with consent. In California for example, it is arguable that such continuous searches require a new consent each and every time it is done in order to comply with California state law. Another issue is whether an employer can legally not hire someone, or terminate someone, because they refuse to consent to ongoing criminal record checks.
  • What to do if a Record is Found and EEOC Considerations: If Human Resources conducts continuous criminal checking and finds a record, then the employer needs a written policy and procedure on how to respond to the information legally. Under the EEOC rules, a criminal record cannot be utilized to automatically terminate an employee without some business justification. There are also restrictions on the use of arrests. Employers need to exercise caution in how such records are utilized, and to determine what type of record may be relevant to employment.
  • Impact on Workforce: Another issue is the impact on the workforce for checking on a bi-weekly or monthly basis to see if current employees have become crooks. There may be some industries where the risk factor justifies continuous checking. However, employers need to consider if such continuous checking is appropriate for their organization.
  • The bottom line: Although such continuous searches can be a valuable risk-management tool, an employer needs to address a number of issues. The employer also needs to understand the limitation to the searches and the issues surrounding the legal use of such data. In addition, if an employee commits an offense that is serious, an employer will be made aware an issue exists by the employee’s absence formwork. For employers who believe this may be a service of value, please contact ESR for more information.

2. Hospitals and Health Care–JCAHO HR 1.20 Compliance

One area where a type of continuous checking has been mandated is for hospitals. Effective January 1, 2006, the Joint Commission on Accreditation of Healthcare Organization (JCAHO) required that hospitals and covered health care entities conduct Primary Source Verification (PSV) directly from the licensing sources 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. The new standard is contained in HR.1.20.

However, unlike ongoing criminal checks that utilize various databases that are subject to false negatives and false positives, these hospital checks are done using the Primacy Source, which is the most accurate data available. An example of a Primary Source would be the records of an actual state-licensing agency.

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 special software for its healthcare clients called the ESR PSVcheck Database. The software manages and tracks the entire process in accordance with the new standards. For example, the software generates automatic reports on all employees and contractors with licenses that are expiring. The ESR PSVcheck Database provides tools to conduct license verifications 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 have ESR do it. During a JCAHO audit, all necessary information demonstrating compliance with the Primary Source Verification rule is instantly available.

For more information on the database and how to be in compliance after January 1, 2006, contact Vince Pascarella at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Staffing Firms and Screening

Q: A staffing firm reports that a claim was made for monetary damages because it provided a temporary worker to a client who stole money. The client ran its own background check after the theft and discovered that the worker had a criminal background and was on a “federal” sex offender list. Going forward, what are the best practices the staffing firm can utilize and what part does a sexual offender list play in a background check?

A: If a staffing firm sends a temporary worker to a client and does not conduct appropriate due diligence, the staffing firm can only hope that the temp is not dangerous, unfit, unqualified or dishonest. If the staffing firm loses the bet, and it turns out that the temp causes damages, the staffing firm may face the threat of legal action from a now very unhappy ex-client not to mention any victims of the worker’s misconduct.

Instead of playing Russian Roulette and hoping for the best, a staffing firm can take a number of steps to exercise due diligence. For example, well thought out and documented application, interview and past employment check policies cost nothing and can often reveal, in advance, temps that a staffing firm may wish to avoid.

A criminal background check is also an essential element of due diligence. The extent of the criminal checks, and who pays for it, is probably a matter of discussion with the client. Just keep in mind that there is no one standard definition of a “criminal” background check. Private employers cannot generally access the nationwide FBI databases (NCIC), so criminal checks must be performed at each relevant courthouse. A criminal check can vary from a simple one-county check of current residence to more extensive checks of additional past counties where a person lived or worked and can even include federal records. A staffing firm should be careful using any databases. Although a national “multi-jurisdictional” database can be a valuable supplemental research tool, potential gaps in data means they should not be used as a primary tool for a background check.

A background check can also include a sexual offender search. In every state, certain sexual offenders must register with the local police, and under “Megan’s Law,” the public has access to some of this data. Most states have a Website available where some information can be located. The U.S. Department of Justice has aggregated a number of states in an online look-up. A staffing agency should certainly consider such a search, especially if the temporary worker is being sent into any workplace where there are potentially people that may be vulnerable or at risk. However, keep in mind that these sexual offender databases are only a partial tool. Typically, only the more serious sexual offenders are listed, and if a sexual offender fails to register or moves and does not re-register their new address, the information can be incomplete. The staffing firm must also keep in mind the Fair Credit Reporting Act (FCRA) of any searches that are conducted.

In order to make sure there are no ambiguities in exactly what due diligence measures a staffing firm undertakes before placing a worker, a best practice is for a staffing firm to clearly define in its client contract exactly what it is, and is not, doing. For example, if a staffing firm is not conducting a criminal check, then that needs to be spelled out. If the staffing firm is conducting a criminal check, then the contract needs to clearly address issues such as:

  1. Who pays for it
  2. Who conducts it
  3. What the scope of the search is (that is, how many counties are to be searched, how far back in time, and what tools are being used)
  4. Who reviews the results and what the criteria is for not hiring someone

For more information on an effective application, interview and past employment checking program, See: http://www.esrcheck.com/docs/SAFE_Hiring_Program_ver_4.pdf

For more information on sexual offender databases, See http://www.esrcheck.com/sex_offender.php

For information on the federal listing of state sexual offenders, See:, http://www.nsopr.gov/

For more information on screening and staffing firms, please contact attorney Vince Pascarella, a member of the Colorado bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044/ vpascarella@esrcheck.com


4. ESR Speaks at National SHRM Show in Washington, DC

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

ESR President, Lester Rosen, will be a presenter at the SHRM annual conference. Here is a summary of his talk:

    Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep business productive and out of court, including how to obtain and utilize criminal record 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.

  • 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.
    • 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)
  • 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:

    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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Summer Schedule

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

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credential Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio- Biotechnology Industry Organization

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: 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.

(Reading time: Less than 5 minutes)

May 2006 Vol. 6, No. 5

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Lessons for Employers from the Wal-Mart Negligent Hiring Case

2. New Research: Job Applicants Who Cheat on Application Cheat in Life

3. Real Background Checks Versus Cheap Knock-offs

4. ESR Announcements and Seminars


1. Lessons for Employers from the Wal-Mart Negligent Hiring Case

On May 2, 2006, jurors in a South Carolina negligent hiring case found in favor of Wal-Mart where Wal-Mart employed a convicted sexual offender without doing a background check and the offender molested a ten-year-old girl in a Wal-Mart store. Wal-Mart did not dispute the molestation occurred but defended themselves on the basis that at the time it had no duty to do a background check, the employee lied about his criminal record and that Wal-Mart did not do anything negligent.

Wal-Mart faces another negligent hiring trial in South Carolina based upon similar allegations that a 12 year-old-girl was fondled by an employee with two previous convictions for sexual assault at an Orangeburg Wal-Mart store in 2004. Wal-Mart decided in August, 2004 that it would begin conducting background checks on new hires nationwide. According to a news article, Wal-Mart was among the first retailers in the industry to start screening current employees with sex offender registries in every state that allows it.

This case has a number of valuable lessons for employers:

  1. Each negligent hiring case is decided on its own unique facts. Even though this particular jury found in Wal-Mart’s favor, it is important to note that the plaintiff stated sufficient facts for the case to be brought to trial. Once a case goes to trial, it is difficult to predict what a jury will do.
  2. Wal-Mart still had to endure not only the direct cost of litigation and the possibility of a large verdict, but the national publicity of having hired a convicted child molester who molested a child in a Wal-Mart store.
  3. The fact that a job applicant lied about their criminal record does not prevent the case from going to the jury. It is the jury who decides in each case if an employer had a duty to go beyond the application and conduct a background check.
  4. Wal-Mart has revised its hiring practices and now does background checks. Wal-Mart has apparently concluded that the cost of doing background checks is less than the cost of not doing them.

The bottom line: The fact that this particular jury in this particular case found in favor of an employer who hired a child molester without doing a background check does not mean that employers have anything less to worry about. As an economic giant, Wal-Mart was able to withstand a sea of bad publicity, pay the legal fees needed to go through a jury trial and to mount a successful defense. For employers without the economic strength of Wal-Mart, the better path would be to do what Wal-Mart started to do in 2004; exercise due diligence in hiring through background checks.


2. New Research: Job Applicants Who Cheat on Application Cheat in Life

According to research cited in the May 1, 2006 issue of Time Magazine, there is “a lot of evidence that those who cheat on job applications also cheat in school and in life.“ That was the opinion of Dr. Richard Griffith, director of the industrial and organizational psychology program at the Florida Institute of Technology.

Dr. Griffith is the author of a book on job applicant faking that is soon to be published. According to the article, he is concerned that if an applicant fakes a degree, how can they be trusted to tell the truth when it comes to financial statements. See Time Magazine article on “Getting Wise to Lies,” May 1, 2006.

These observations confirm what many employers, security and human resources professionals already know – that if an applicant lies in order to get into a job, there is no way of knowing what lies or acts of dishonesty will occur when they are working for you. This is another reason that employers need to be very careful about who they let into their business in the first place.


3. Real Background Checks Versus Cheap Knock-offs

A recurring issue for employers is how to determine the adequacy of a background check and the adequacy of the background-screening firm providing the check. According to the same Time Magazine article, there are some 700 firms in the US that offer background-screening services.

The national trade association for the background screening industry, the National Association of Professional Background Screeners (www.NAPBS.com) is currently formulating an accreditation program, so that an employer can determine which firms have gone through a rigorous accreditation process designed to demonstrate that a background screening firm has proficient knowledge in all areas of preparation and dissemination of employment-related consumer reports, including privacy rights protections and legal compliance. It does not appear that the accreditation process will provide accredited firms before 2007.

In the meantime, employers who need to ensure that they are dealing with professional background firms that are proficient and legally compliant will need to do their own due diligence.

To assist employers, Employment Screening Resources (ESR) has prepared a chart with 40 critical questions that an employer should ask any provider of screening services. The chart summarizes a number of best practices that employers need to know about before selecting a screening firm.

For example, employers may wish to avoid working with a screening firm that utilizes the following methods while conducting US-based backgrounds:

  • Sends employment and education verifications to home operators, risking both applicant privacy and the quality and integrity of the information provided.
  • Sends information offshore for data entry and processing.
  • Utilizes databases instead of more accurate onsite courthouse searches for criminal records.
  • Reports criminal records based upon a non-existent national criteria instead of understanding the individual rules for each of the 50 states.

The 40 point comparison chart is available at http://www.esrcheck.com/ESRadvantage.php

For more information on how to identify a professional screening firm, please contact attorney Vince Pascarella, a member of the Colorado Bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044, Ext. 241 and vpascarella@esrcheck.com


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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule

May 16 and June 20, 2006 – “Avoid Negligent Hiring,” Seminars for Solo HR Departments, San Jose, CA For more information and Registration, See:>>>

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

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: 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.

(Reading time: Less than 5 minutes)

April 2006 Vol. 6, No. 4

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New Survey: Average Cost of Bad Hire 2 Times Salary of Worker Being Replaced

2. Law Firms Face Special Issues in the Use of Background Reports and Credit Checks

3. ID Theft Expert Underscores Importance of Adverse Action Notices to Applicants With a Negative Background Report

4. ESR Announcements and Seminars


1. New Survey: Average Cost of Bad Hire 2 Times Salary of Worker Being Replaced

A new survey has confirmed what every employer and HR professional already knows; it is very costly to make a bad hiring decisions.

According to news reports, Right Management, a division of Manpower Inc (NYSE: MAN), released a study in April, 2006 consisting of a survey of 444 organizations and businesses in the United States.

Significant findings included that the average cost of replacing a bad hire is 2 times the salary of the person being replaced, including recruitment, severance, and lost productivity.

Other costs can include lost customers and market share and higher training costs.

The bottom-line: Each hire is not only a big investment for each employer, but a big source of risk if something goes wrong. The cost and time of making good hiring decisions is small compared to the fallout from a bad decision. Pre-employment screening is certainly one of the critical tools an employer can utilize.


2. Law Firms Face Special Issues in the Use of Background Reports and Credit Checks

According to a special report by ESR, law firms face unique risks when it comes to issues surrounding pre-employment background screening. Some of the special concerns for law firms include:

  • Credit Reports—Although credit reports can be a legitimate hiring tool for certain positions in a law firm, a law firm must ensure that employment credit reports are not obtained from a screening firm for litigation purposes. Credit reports are covered by the federal Fair Credit Reporting Act (FCRA), and federal courts have held that a law firm which pulls a credit report for litigation can be in violation of the FCRA.
  • Following Legal Procedures—If a law firm fails to follow both federal and state laws concerning background checks, a law firm can face the risk of litigation since law firm applicants may be especially knowledgeable of the technical legal requirements associated with background checks. A California law firm discovered that the hard way in a 2005 case where they were sued by a paralegal for a technical legal violation of the California Investigative Consumer Reporting Agencies Act (ICRA). Although the law firm ultimately won the case, the lawsuit underscores that a law firm must be especially careful to follow the law.
  • Failure to Screen Lawyers—Many law firms make the mistake of only screening staff members and not attorneys, under the assumption that an attorney could not have a disqualifying record and still be an attorney. In the medical field, health care providers have made the same mistake about doctors. It is very possible for a licensed professional to have a negative item in their background, but still have a valid license. This can occur, for example, if the professional moves out of state before the matter is resolved or the matter is still under investigation by the licensing board. The most problematic situation is where a professional is hired as a lateral transfer, as opposed to an attorney who is newly admitted.

For an ESR Special Report on issues involving law firms and safe hiring, please contact attorney Vince Pascarella, a member of the Colorado bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044 Ext. 241/ vpascarella@esrcheck.com


3. ID Theft Expert Underscores Importance of Adverse Action Notices to Applicants With a Negative Background Report

A national expert on identity theft underscored the importance of employers following the adverse action rules when dealing with job applicants who are turned down due to negative background reports.

Jay Foley, co-director of the ID Theft Center (http://www.idtheftcenter.com/),

spoke on the importance of giving job applicants a chance to clear up any negative information in a background report. This was part of a panel discussion on privacy and background reports moderated by ESR President, Lester Rosen, at the recent annual conference in Nashville, Tennessee on April 2-5, 2006, of the National Association of Professional Background Screeners (NAPBS), the national professional association for the background screening industry.

Recognizing that background reports are extremely valuable to protect people from harm, Mr. Foley also gave dramatic examples of how negative information can also be the result of someone committing a crime while using a stolen identity. When that occurs, an innocent person can be wrongly reported as being a criminal, when in fact they were the victim of ID theft.

By following the Adverse Action notification requirements of the FCRA, employers can give job applicants who were the victim of criminal ID theft an opportunity to correct the record. Otherwise, a victim of ID theft would be further victimized because they may not know they were being denied a job due to criminal ID theft. Employers would also lose a potentially good candidate.

Under section 604 of the federal Fair Credit Reporting Act (FCRA), when an employer receives a background report, and intends not to hire the applicant based upon the report in any way, the applicant has certain rights. Before taking the adverse action, the employer must provide the applicant with a copy of the consumer report and a document prepared by the Federal Trade Commission (FTC) entitled “A Summary of Your Rights Under the Fair Credit Reporting Act.” (This should be provided by the screening service.)

The purpose is to give an applicant the opportunity to see the report that contains the information that is being used against them. If the report is inaccurate or incomplete, the applicant then has the opportunity to contact the Consumer Reporting Agency (background screening firm) to dispute or explain what is in the report. Otherwise, applicants may be denied employment without ever knowing they were the victims of inaccurate or incomplete data. If the employer determines that the decision is final, an additional notice is necessary under FCRA Section 615.

For more information on how to comply with the FCRA and copies of sample pre-adverse action and post adverse action letters, see the ESR Special Report, “The FCRA in Four Easy Steps for Employers.” http://www.esrcheck.com/articles/article9.php


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.
    • 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)
  • 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:

    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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule 

April 27, 2006–National Web conference-“Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA)

May 11, 2006–Alameda, CA- “Ask a Lawyer – Everything you Wanted to Know About Background Checks But Were Afraid to Ask.” East Bay District CALI meeting

May 16–Milpitas, CA “Avoid Negligent Hiring.” Pre-employment Background Screening Trends, Legal Developments and Best Practices For more details, see http://www.esrcheck.com/docs/2006_05_16_Safe_Hiring_Seminar_Flyer.pdf

June 20, 2006–Atherton, CA “Avoid Negligent Hiring.” Pre-employment Background Screening Trends, Legal Developments and Best Practices For more details, see http://www.esrcheck.com/docs/2006_05_16_Safe_Hiring_Seminar_Flyer.pdf

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

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.


Employment Screening Resources (ESR) 

http://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 2006 Vol. 6, No. 3

Employment Screening Resources (ESR) Newsletter and Legal Update


1. International Background Screening a Growing Necessity

2. Workers Compensation Records: Potential Trap for Employers

3. Background Screening Association to Hold Annual Meeting

4. ESR Announcements and Seminars; Attorney and Legal Compliance Expert Joins ESR Team


1. International Background Screening a Growing Necessity

Increasingly, American firms find they need to conduct background screening on individuals who have spent time in other countries. U.S. government statistics show that 11.5 percent of the population consists of immigrants. There are also large numbers of workers from other countries here on temporary work visas. In addition, many U.S. citizens have spent time studying or working abroad.

What these figures tell employers is that only performing employment screening within the U.S. is probably not enough. With the mobility of workers across international borders, many employers find they need to obtain information from outside of the United States on such matters as criminal records, past employment, and educational accomplishments. These checks are generally described as “international background checks.”

A need for an international background check occurs in these situations:

  • An applicant was born abroad and is either coming directly to the U.S. from another country or has not been in the U.S. long enough to rely solely upon checking American references and records.
  • The applicant spent time in another country and the employer wants to obtain data for that time period.
  • An American company is hiring an individual in another country to work in that other country (for a position such as outside sales or marketing representative, etc.).

Because of the perceived difficulties in performing international employment screening, some employers have not attempted to verify international credentials. However, the mere fact that information may be more difficult or expensive to obtain from outside of the U.S. does not relieve an employer from the due diligence obligations associated with hiring. An employer cannot simply take a position that it is harder to exercise due diligence because the research is international.

Nor can an employer simply assume that the U.S. government has performed a background check if the worker was issued a visa. After the events of 9/11, the U.S. Government has increased checks on foreign visitors and workers by checking names against government “watch lists.” However, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S. These government checks are not necessarily aimed at lesser convictions that may be relevant to job performance, or verification of past employment or education credentials.

Here is the bottom line. If an employer hires someone without verifying their international background and the employer is sued for negligent hiring when it turns out that a due diligence check would have uncovered important facts, what is the defense? If a victim has been hurt or injured, then the employer’s testimony will sound very hollow when they did nothing, believing it was too difficult or they did not know how. ESR statistics show that discrepancies in international employment and education checks can occur over 20% of the time.

Although international searches come with their own unique challenges and obstacles, employers have a number of options when it comes to exercising due diligence. However, employers also need to be concerned with international data and privacy protections laws.

For information on verification of international employment and education credentials, see: http://www.esrcheck.com/international.php

For information on internationals criminal checks, see: http://www.esrcheck.com/articles/article.php?article_id=international_fees.html


2. Workers Compensation Records: Potential Trap for Employers

Employers have become very aware of the high costs of compensation claims. The loss to American businesses from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

Before the ADA was introduced in 1990, employers had little legal limitations when it came to asking job applicants about their medical history or past workers’ compensation claims. Now there are numerous legal restrictions that must be observed closely. The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It can be discriminatory to penalize a person who has exercised a lawful right and filed a valid claim.

Some Pointers for Workers’ Compensation Records and Hiring

  1. There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release.
  2. Not all claims are necessarily available. In California, for example, an employer would generally only receive claims that went to the Workers’ Compensation Appeals Board.
  3. Under the ADA, an employer may not inquire about an applicant’s medical condition or past workers’ compensation claims until a conditional job offer has been extended.
  4. Any questioning in a job interview must be restricted to whether the person can perform the essential job functions with or without reasonable accommodation.
  5. Only after a conditional job offer has been extended may an employer inquire about past medical history, require a medical exam, or inquire about workers’ compensation claims.
  6. If a history of filing workers’ compensation claims is found, then the offer may only be rescinded under very limited circumstances, such as:
    • The applicant has lied about a workers’ compensation history or medical condition, or hid some past employment in order to hide a claim;
    • The applicant has a history of filing false claims;
    • The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
    • The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

Bottom-line: Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records as part of the hiring process. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA and applicable state laws.


3. Background Screening Association to Hold Annual Meeting

The National Association of Professional Background Screeners (NAPBS), the national professional association for the background screening industry, will be holding their third annual national conference in Nashville, Tennessee on April 2-5, 2006.

According to its mission statement:

The National Association of Professional Background Screeners (NAPBS) exists to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and foster awareness of issues related to consumer protection and privacy rights within the background screening industry.

The Association provides relevant programs and training aimed at empowering members to better serve clients and to maintain standards of excellence in the background screening industry.

The Association is active in public affairs and provides a unified voice on behalf of members to local, state and national lawmakers about issues impacting the background screening industry.

ESR is pleased to have been a founding member of NAPBS. ESR President Les Rosen served as the chairperson of the steering committee that founded NAPBS and served as the first co-chairman in 2004.

For more information, see www.napbs.com.


4. ESR Announcements and Seminars; Attorney and Legal Compliance Expert Joins ESR Team

  • ESR is pleased to announce that attorney Vince Pascarella has joined the ESR team as Director of Legal Compliance. Vince has spent nearly nine years in the background screening industry specializing in legal compliance issues and pre-employment screening. He also spent two years as co-chair of the Best Practices Committee of the National Association of Professional Background Screeners (NAPBS). That committee operates to establish and promote best industry practices and inform members regarding compliance with applicable laws.
  • 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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule

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

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

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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