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

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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

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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)

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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.

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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

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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, 2007–National 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 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

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.

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Employment Screening Resources (ESR) 

www.ESRcheck.com

1620 Grant Avenue, Suite 7 

Novato, CA 94945

415-898-0044

3Back to Newsletters

This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the “remove” feature at the end of the newsletter.

ESR’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

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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

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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.

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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.

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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

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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 industry” NCHRA Wine Industry Conference
>

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.

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Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the “remove” feature at the end of the newsletter.

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

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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

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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.

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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

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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

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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.

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Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the “remove” feature at the end of the newsletter.

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

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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

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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.

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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

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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

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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

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Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

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