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.

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February 2006 Vol. 6, No. 2

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Education Going to the Dogs; Phony Diplomas

2. Study Shows Identity Theft Continues to be Major Issue

3. Cheap Background Checks Can Put Employers and Public at Risk

4. ESR Announcements and Seminars


1. Education Going to the Dogs; Phony Diplomas

Getting a college diploma apparently no longer requires years of hard work, taking tests, paying tuition or even reading a book. Why bother going through the formalities when all a person needs is a credit card and a web browser in order to buy an authentic looking diploma that mimics real colleges, universities and even high schools across the U.S.? Go to any search engine and run keywords such as “Fake Diploma” and anyone can instantly “graduate” from nearly any school in America with a very handsome and authentic looking diploma suitable for hanging.

One such website advertises that it creates, “very realistic diplomas/transcripts. These diplomas/ transcripts are extremely high quality printed on official parchment quality paper. You can show your employer and they will never doubt that you indeed attended college. You will not find better quality anywhere!!!”

Some of these sites “officially” caution that the diplomas and transcripts are intended for “Novelty and Entertainment Use Only.” However, the fake documents you receive do not have a disclaimer written any place on them. Some sites will even provide phone numbers to give employers in order to verify attendance at a fake school.

A case in point is a recent degree ostensibly “granted” by the University of Arizona for a Bachelors of Business Administration. The only problem is that the degree was issued to the dog belonging to an ESR staff member. Not only that, but he dog had passed away ten years ago! However, according to a very genuine looking degree and college transcripts obtained from an internet site, the deceased dog apparently took a number of business classes in recent years. To an employer not familiar with the genuine degrease issue by that school, it could easily appear to be a genuine diploma.

With statistics showing that resume fraud is a significant issue, employers must be very cautious about accepting a physical diploma as proof of a degree. When presented with a physical diploma or transcripts, employers should fax a copy to the school to confirm its authenticity. Most background firms can tell stories of faxing copies of degrees, supplied by the applicant, to high schools and colleges only to be told the degree is a fake. These fakes have not entirely escaped official attention. In Illinois, the legislature passed a law in 2004 aimed at addressing educational fraud. It is now a Class A Misdemeanor to knowingly manufacture or produce for profit or for sale a false academic degree, unless the degree explicitly states “for novelty purposes only.”

For a copy of the college degree and transcripts issued to our dearly departed canine friend, contact Jared Callahan at ESR at mailto:jcallahan@ESRcheck.com or by phone at 415-898-0044.


2. Study Shows Identity Theft Continues to be Major Issue

According to a recent study released by the Federal Trade Commission, identity theft once again topped the list of consumer complaints filed with that federal agency in 2005. The major metropolitan areas with the highest per capita rates of reported identity theft were Phoenix/Mesa/Scottsdale, AZ; Las Vegas/Paradise, NV; and Riverside/San Bernardino/Ontario, CA.

Other consumer complaints included:

  • Internet Auctions – 12 percent
  • Foreign Money Offers – 8 percent
  • Shop-at-Home/Catalog Sales – 8 percent
  • Prizes/Sweepstakes and Lotteries – 7 percent
  • Internet Services and Computer Complaints – 5 percent
  • Business Opportunities and Work-at-Home plans – 2 percent
  • Advance-Fee Loans and Credit Protection – 2 percent
  • Telephone Services – 2 percent

The full article is located at http://www.ftc.gov/opa/2006/01/topten.htm

As reviewed in previous ESR Newsletters, one of the main sources of identity theft occurs in a business environment. Employers can conduct an internal audit of their privacy and data handling practices by going to the Privacy Rights Clearinghouse web page at: http://www.privacyrights.org/ar/PreventITWorkplace.htm

Background firms also need to pay careful attention to privacy and identity theft in the workplace. A background screening firm should have state of the art security, encryption and strong password protection, in addition to a strong privacy policy. The ESR privacy policy is located at. http://www.esrcheck.com/partners/Privacypolicy.php

One important area of protecting privacy and preventing identity theft–employers should very carefully consider the privacy and data integrity implications of working with a background screening service that utilizes at-home operators to conduct employment verifications. The potential lack of privacy controls can put the employer and applicants at risk. Another area of exposure is when background firms send data offshore to India or other countries for processing where there is little privacy protection. ESR does not engage in either practice.


3. Cheap Background Checks Can Put Employers and Public at Risk

A recurring issue for employers is the proliferation of “cheap” background checks. These are typically multi-state databases containing of millions of public records. Employers need to understand that these databases are NOT the same thing as an FBI “rap sheet” taken from the National Crime Information Center (NCIC). Private employers do not have access to the FBI unless there is a specific state or federal statute, such as laws permitting school teachers or bank employees to be fingerprinted.

These private multi-jurisdictional databases can be extremely valuable when used as a secondary or supplemental research tool to perform a broader search of public records to locate courts to check in more detail. Use of these databases have revealed serious issues that employers would have missed because the databases cover a much wider geographical area. However, because of issues concerning completeness, accuracy and timeliness, employers need to realize that these databases are subject to false negatives, which means an offender can be marked as “clear” even though they have criminal records. There can even be false positives-individuals who are incorrectly identified as offenders who are not.

The issue was highlighted by a story in the Dallas Morning News on October 10, 2004 by writers Diane Jennings and Darlean Spangenberger. The story noted that the Texas state criminal convictions database is accessed more than 3 million times each year by residents and state agencies to conduct background checks on individuals who apply for jobs, licenses, and housing, as well as criminal investigations. However, according to the story, police administrators say the database has so many gaps that pubic security is in jeopardy. The state possesses only 69 percent of the overall criminal records for 2002, according to a report by the Texas Department of Public Safety. The District Attorney for Williamson County was quoted as saying that anyone who depends on the state database for a full and accurate check is foolish.

Bottom-line: Any employer who conducts background checks should ask their background firm if the data is coming from a database or from the courthouse. If a database is utilized, has the background firm specifically advised the employer as to the advantages and limitations of criminal databases and the legal requirements for proper use of database information under federal and state laws?


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

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

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

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

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

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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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)

January 2006 Vol. 6, No. 1

Employment Screening Resources (ESR) Newsletter and Legal Update


1. $500,000 Verdict Illustrates Lessons for Employers

2. California Passes New Law Authorizing Increased Court Fees

3. Danger! Preventing Fraud in Past Employment Verifications

4. ESR Announcements and Seminars


1. $500,000 Verdict Illustrates Lessons for Employers

In a widely publicized case, a jury verdict in favor of a terminated employee against Pacific Bell (now part of SBC) for $500,000 was upheld by a San Francisco federal appeals court that ruled the phone company should have re-instated the employee as a telephone installer, even though the employee did not reveal previous criminal matters on his application, including a charge of attempted murder resulting in nearly three years in a state mental hospital.

According to the case handed down December 27, 2005, plaintiff Joshua Josephs applied for a position with PacBell in late 1997. After working at PacBell for three months, PacBell received the results of a fingerprint check and discovered that the plaintiff had been charged with attempted murder in 1982. Further research showed he was found Not Guilty by Reason of Insanity and spent nearly three years in a state mental hospital. In addition, the plaintiff also failed to report a 1985 misdemeanor conviction for battery on a police officer. Both events occurred while using a different name, which the plaintiff also did not reveal.

The plaintiff filed a grievance asking for re-instatement. PacBell took the position that it was dangerous to hire a person with Josephs’ history because he may “go off” on a customer and it was inappropriate to have the plaintiff in a job where he went into peoples’ homes. PacBell was also unwilling to assign the Plaintiff to a job that did not involve contact with customer homes and did not want the plaintiff back in any capacity. In addition PacBell maintained that because he failed to reveal his true name and the battery charge, he also could not be re-instated.

The plaintiff brought the legal action on the basis that PacBell was discriminating against him in violation of the Americans with Disability Act (ADA) and similar California laws by not re-instating him due to a mental disability. He argued that PacBell regarded him as suffering a mental illness that could result in future acts of violence, even though he had recovered and could perform the job.

The jury heard evidence that:

  1. The victim of the attempted murder was a high school friend who was a quadriplegic (and according to press accounts, the plaintiff was delusional and pulled the respirator plug on his friend).
  2. The plaintiff had recovered from the mental illness.
  3. The plaintiff had successfully worked as a telephone technician for 10 years for another communications firm.
  4. According to his supervisor at PacBell, the plaintiff was performing well and would probably be an asset to the company.
  5. The plaintiff went back to court during his grievance procedure with PacBell and had his misdemeanor criminal record expunged.
  6. Other employees had been re-instated after they cleared up criminal matters they failed to disclose, including a felony domestic violence battery, so that the real reason for not re-instating Josephs was the mental disability.
  7. PacBell did not want to accommodate the plaintiff by putting him in a job that did not require him to go into people’s homes—they did not want to employ him in any capacity due to the history of mental illness.

The jury found that PacBell did not discriminate against the Plaintiff for the initial termination. However, the jury found that the reason for not re-instating was based upon his mental condition and that he was a victim of discrimination.

The court noted that PacBell did not introduce any evidence that it had a written company policy prohibiting employment of persons who have committed violent acts, and in fact, had rehired one employee who had failed to disclose a felony domestic violence battery conviction.

This is intended only as a brief summary of a complicated case with unusual facts and a dissenting opinion. Although the case did not appear to announce any new legal principles and it may be appealed, there are some valuable lessons for employers, including:

  1. Every employer needs to have a written policy in place concerning hiring of individuals with criminal records, particularly if the records are regarding violence, dishonesty or moral turpitude.
  2. In the event a person with a criminal record is hired or re-instated, the precise circumstances of that individual’s situation and the reasons for the decision should be carefully documented, so in the future other applicants with criminal records cannot complain they were the victims of discrimination if they are not hired.
  3. An employer must clearly differentiate between adverse employment decisions based upon a criminal record and a decision based upon a mental disability. If the criminal record is the basis of the decision, then the employer must analyze the nature and gravity of the act, the nature of the job and the age of the offense. If the mental disability is the employer’s concern, then it must consider the ADA implications in its decision, including whether the plaintiff could have performed the essential job functions and if there was a reasonable accommodation available.

For a copy of the case, please contact Jared Callahan at jcallahan@ESRcheck.com or by phone at 415-898-0044. This summary is for information purposes only and is not intended as legal advice. For more information on this case, an employer should contact their legal counsel.


2. California Passes New Law Authorizing Increased Court Fees

The California legislature passed a new law regulating court fees effective January 1, 2006. The law enacted the “Uniform Civil Fees and Standard Fee Schedule Act of 2005,” with the goal of establishing a uniform schedule of filing fees and other civil fees for the California Superior Courts.

The bill will affect a number of court related fees. It may also impact fees charged by court clerks to perform past criminal record checks. Pre-employment screening firms conduct criminal checks by researching names at the county courthouses in order to assist employers in exercising due diligence in the hiring process. One part of the new law requires that the fee for a search of records or files conducted by a court employee that requires more than 10 minutes is fifteen dollars ($15) for each search. If courts charge additional fees for court related services, that could end up increasing the cost of background checks in California.

At present, it is unclear how and when the court clerks in the 58 counties in California will deal with the new law. ESR will be motoring the situation and will keep employers advised of the potential impact of this new law.

The text of the law is available at: http://www.leginfo.ca.gov/pub/bill/asm/ab_0101-0150/ab_145_bill_20050719_chaptered.html


3. Danger! Preventing Fraud in Past Employment Verifications

Verifying past employment is one of the single most important tools for an employer. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even verification of dates of employment and job title is critical because an employer must be concerned about unexplained gaps in the employment history. In addition, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense. Finally, documenting an attempt to obtain references can demonstrate due diligence.

However, it is also critical to prevent fraud in past employment verification. One effective fraud prevention tool is to have a policy that every past employer phone number is independently verified using a third party source. That serves to both verify that the past employer is authentic and the phone number is genuine, and not just the number for a friend of the applicant.

Third party phone number verification can be conducted by using directory assistance or online sources. If the employer cannot be located, then public records can be searched.

ESR has a strict policy that every phone number for every past employment verification is independently verified in order to verify both the employer and the phone number.

Bottom-line: Any employer who outsources past employment verifications should ask their background firm what steps are taken to prevent applicant fraud and to verify the existence of past employers and their phone numbers. Unfortunately, some firms cut corners and leave employers unprotected by simply calling whatever number the job applicant has provided.


4. ESR Announcements and Seminars

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

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

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

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

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

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

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

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

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

February 20, 2006 Anaheim, CA CAHHS Health Care Volunteer Convention “How to Screen, Interview and Place Volunteers…Legally” Click Here 

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

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

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

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

Contact ESR for further details.


Employment Screening Resources (ESR)

http://www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

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