Yearly Archives: 2007

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 2007 Vol. 7, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update


1. ESR Travels to the UK, India and Japan to Investigate International Screening

2. Why Employers Cannot Assume the Government is Screening Workers from Abroad

3. Types of International Checks — Screening Versus Investigation

4. ESR Speaking Schedule for 2008


1. ESR Travels to the UK, India and Japan to Investigate International Screening

In December 2007, ESR President, Lester Rosen, toured three destinations where US employers often have a need to screen applicants. Mr. Rosen was also the keynote speaker at the First India International Screening Conference held in Bangalore, India. The countries visited were the UK, India and Japan.

In all three countries, the goal is the same for employers; mainly to ensure due diligence in hiring to avoid applicants who are dangerous, dishonest, unfit or unqualified. However, any U.S. employer that is expecting the process to be similar to the U.S. will be very disappointed. Although employers internationally face similar challenges, there are stark differences in how things are done in each country.

When discussing background checks outside of the U.S., it is important to clearly differentiate between International Screening and Global Screening. International Screening refers to a U.S. Employer that is hiring someone in the U.S. that has spent time outside of the U.S. That can either be a U.S. citizen that has spent a period of time outside of the U.S. while working or going to school, or a citizen of another country working in the U.S. In either case, it is important for the screening consent forms to clearly be neutral when it comes to ethnicity or national origin, and only refer to a consent for screening in locations outside the U.S. where the person has lived, worked or studied. In the case of a foreign national coming to work in the U.S. on a VISA, the prevailing evidence appears to indicate that U.S. employers cannot assume that a government VISA means that a background check has been conducted by the government. Although the government checks various terrorist databases, there is no guarantee that there had been an adequate criminal record check, or that past employment or education has been verified. (See next story).

Global screening on the other hand refers to a situation where a U.S. firm sets up an operation outside of the United States, and needs to screen in that country. For example, if a U.S. company opens an operation in India, then Global Screening refers to the process of screening inside of India.

In the next four issues, ESR will review both International Screening and Global Screening for the UK, India, Japan and People’s Republic of China, (PRC). There will also be articles concerning screening in Canada and Mexico. Future issues will continue to address data and privacy protection issues as it applies internationally.

For information on International Screening, please contact Jared Callahan at 415-898-0044 Ext. 240 or jcallahan@esrcheck.com


2. Why Employers Cannot Assume the Government is Screening Workers from Abroad

There are essentially two legal ways for individuals to come to the U.S. to work or live — either apply for an immigrant visa or a non–immigrant visa. An example of a non-immigrant visa is an H1-B visa. This visa is issued for applicants with specialized professional skills to obtain permission to work in the U.S. According to government statistics, legal immigration in the U.S. was over a million people in 2002. This figure does not count the individuals from abroad in the U.S. working on a temporary work visa.

Here is the crux of the matter for employers: employers cannot assume the U.S. government in issuing a visa has performed a background check that relieves employers of their due diligence obligation to conduct their own screening. Government efforts are not foolproof. After the events of 9/11/2001, the U.S. Government has certainly increased checks on foreign visitors and workers, however, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S., or deporting those non-citizens that commit crimes in the U.S. or overstay their visas. The efforts the government makes, although vital, do not substitute for what an employer needs to do. The government efforts are not necessarily aimed at lesser convictions that may be relevant to job performance, or verifications of credentials.

Part of the difficulty is this— when a person applies for either an immigration visa or a non-immigration visa, there are potential holes in the criminal background check process.

Criminal checks are done in different ways, depending on the type of visa. For a non-citizen applying for a visa in order to immigrate to the U.S. to live and to receive a “green card,” there is a “police certificate” requirement. The applicant must typically obtain a police certificate from his or her home country’s “appropriate police authorities.” The applicant must include any prison records. That sounds good on paper; however, there are two points to consider.

The first problem is the time period for issuing police certificates may allow a person with a criminal record to evade detection. Under the State Department rules, the police certificate comes from a country, area, or locality where the alien has resided for six months. However, if a person has frequently moved around inside that country, criminal records can be missed, depending on how the records are kept. Recent offenses may not be reported. If a person has lived in other countries, then the relevant time period is one year, so records can be missed if the person was in the country for a short period of time or left after committing an offense. The consular officer — a State Department officer assigned to a local U.S. Consulate — may require a police certificate from additional jurisdictions regardless of length of residence in any country, if the officer has reason to believe a criminal record exists.

The second issue is that police certificates differ all over the world in terms of reliability, timelines, and completeness. Police certificates are still only as good as the efforts, resources, and abilities of the local law enforcement authorities in each country, so even when a police certificate is available, the completeness of the data can still be an open question. In addition, a number of countries do not even have police certificates available, or police certificates are too difficult to obtain and not available as a practical matter.

The U.S. State Department recognizes this as an important issue. The State Department maintains the Visa Reciprocity and County Document Finder, an international listing by country of issues involved in obtaining necessary visa documents. For more, see http://travel.state.gov/visa/reciprocity/index.htm. Visa applicants can visit the website to find out how to obtain police certificates and court records from their own country.

The essential lesson from this discussion is there are, statistically, a significant number of potential job applicants where the relevant background information will come from outside of the U.S. An employer cannot depend upon the visa process as protection. That means U.S. employers should consider what they can and should do internationally in the area of safe hiring and employment screening.


3. Types of International Checks — Screening Versus Investigation

There are two types of international services an employer may utilize. The first type is an international employment screening. The second type is an international investigation.

For most employers, an international employment screening involves verifications of supplied information by an applicant who has given express written consent, as opposed to an active investigation to locate information. In other words, in a screening an employer will have already obtained from an applicant the names, addresses, and phone numbers of previous employers or schools. Also, the employer will have obtained a list of potential locations where an applicant has lived, worked, or studied, as it is important to know where to conduct criminal searches. If more information is needed, such as the applicant’s school identification number or some other data, then the applicant can be asked to supply the needed data. The employer does not need to hire an international investigator to locate that information. The applicant will help the employer obtain the information since the applicant has signed a consent form and wants to be hired.

Another way of distinguishing between an international screening and an international investigation is who conducts the check and where. An international investigation typically involves a trained and experienced investigator working in the country where the investigation is being conducted. When an employer utilizes a screening firm, there is not necessarily an agent on the ground in the country where the information is being obtained. The screening may be conducted by phone or email contact with courts, employers, and schools. The person available to assist in the foreign country may be a court runner as opposed to an experienced investigator. In fact, for privacy purposes, it is a best practice for a U.S. firm to not send any personal data outside of the U.S.

Typically, an international investigation is considerably more expensive than a screening. Since international investigations may involve qualified personnel on the ground in the foreign country — doing in-person interviews or obtaining records — the cost can be thousands of dollars. If a business is filling a highly sensitive position or is conducting a due diligence investigation of a potential business partner, then the services of a qualified investigative firm may be needed.

Screening, by comparison, is considerably less expensive. A typical international screening will consist of contacting the employers and schools supplied by the applicant, and conducting a criminal check to the extent possible in that country. A screening may also include, if available, a driving record and credit report. The overall cost, although greater than a typical U.S. screening, is less than an international investigation.

The bottom-line for U.S. employers: An employer should analyze the risk involved, and evaluate what level of check is appropriate. For employers who wish to perform “international screening” by filling a position in the U.S., then a U.S. screening firm can generally provide the necessary information, as long as the employer is comfortable with the firm’s data and privacy protection.


4. ESR Speaking Schedule for 2008

ESR 2008 Schedule

February 7, 2008 IPMA HR audio conference–“Avoid Negligent Hiring–New Developments, Best Practices and Legal Compliance.” Details to follow

March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow

June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

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.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

7110 Redwood Blvd., Suite C

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

November 2007 Vol. 7, No. 11

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Hot Off The Press: Despite Their Resources, an FBI and CIA Background Check Fails to Uncover an Applicant with False Credentials

2. New I-9 form Released for Employers

3. Urban Myth: A Social Security Trace Report from a Background Firm is from the Government

4. ESR in the News! ESR is the Official Background Screening Firm for Real Santas


1. Hot Off The Press: Despite Their Resources, an FBI and CIA Background Check Fails to Uncover an Applicant with False Credentials

When it comes to exercising due diligence in hiring, the two organizations that are probably among the best in the world are the CIA and the FBI. Not only do they have access to confidential governmental databases that private employers cannot access, but they spend substantial time and resources on each hire, including in-depth field interviews of references and past employers by trained professionals.

Yet even with all of these advantages it turns out that the FBI and CIA are not above having their hiring systems thwarted by a determined liar. In a highly published case, the FBI hired an agent with false credentials into a highly sensitive position, critical to the national security of the United States. On November 18, 2007, an FBI agent named Nada Prouty, who also did sensitive work for the CIA, was convicted in federal court of criminal charges relating to falsification of her employment application. According to a story in the New York Post,

Nada Prouty, 37, admitted last week she faked her first marriage to a Michigan man in 1990, enabling her to get US citizenship that helped her secure jobs with the FBI and CIA. Her star as an agent rose, and officials trusted her to grill al Qaeda sympathizers.

She also confessed to sneaking into government databases for secret information on her sister and brother-in-law, both linked to the Middle East terror group Hezbollah. See:(http://www.nypost.com/seven/11182007/news/nationalnews/jihad_janes_state_of_bliss_936973.htm)

Employers concerned about exercising due diligence in the hiring of employees can take some comfort in the fact that even the FBI and CIA do not get it perfect. A private employer is not held to the standard of perfection in hiring. The standard is whether the employer exercised due diligence to reasonably prevent a person that is unsafe, unqualified or unfit from being hired. Being able to document due diligence in a negligent hiring lawsuit is an employer’s best defense. Pre-employment screening of course, is an essential element of any due diligence program.


2. New I-9 form Released for Employers

The U.S. Citizenship and Immigration Services (USCIS) has just released a new version of the Form I-9 for use by employers. In a press release dated November 23, 2007, the USCIS reminded employers that they must transition to the revised Employment Eligibility Verification Form (I-9) not later than Dec. 26, 2007 and that all employers are required to complete a Form I-9 for each employee hired in the United States.
http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf

The 1986 Immigration Reform and Control Act (“IRCA”) makes all U.S. employers responsible for verifying, through a specific process, the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. To implement this, employers are required to complete Employment Eligibility Verification Forms I-9 for all employees. An employer’s obligation to review documents is not triggered until a person has been hired, whereupon the new employee is entitled to submit a document or combination of documents of his choice to verify his identity and work eligibility.

The new form modifies the list of documents that can, and cannot, be used. The new form also makes providing the Social Security number voluntary, except for employees hired by employers participating in the USCIS Electronic Employment Eligibility Verification Program (E-Verify).

The new form can is located at: http://www.uscis.gov/files/form/I-9.pdf

The USCIS also issued a 47 page handbook on I-9 compliance. See: http://www.uscis.gov/files/nativedocuments/m-274.pdf

Employers also have the option of utilizing the E-Verify program that allows employers to access databases administered by the Department of Homeland Security and the Social Security Administration to check the information on an I-9 form to determine that individual’s employment eligibility. Although the program is voluntary at this time under federal law, many employers find there are advantages to having direct access to government data.

ESR is qualified to act as an employer’s Designated Agent to perform the verifications through the E-Verify program. Many employers find that utilizing ESR as their agent to participate in the program saves time and money. Most critically, if an employee is not verified, ESR can help walk an employer through the necessary next steps.

To participate in the E-Verify (Basic Pilot) Program, an employer must first provide ESR with information so that ESR can register the employer. As part of the registration process, an employer must execute a Memorandum of Understanding (MOU) that sets forth the responsibilities of the Social Security Administration, the U.S. Citizenship and Immigration Services Bureau, and the employer.

See: http://www.esrcheck.com/formi9.php

Contact Jared Callahan at ESR by pone at 415-898-0044 or e-mail at jcallahan@esrcheck.com for more information.


3. Urban Myth: A Social Security Trace Report from a Background Firm is from the Government

(This is the fourth story about Urban Myths and Employment. The first myth was that employers do not need to perform background checks on licensed professionals. The second myth was that credit scores are used by employers for hiring. The third myth was that once a judge removed a criminal record that the actual record can never be found again.)

A standard tool used by nearly every pre-employment screening firm is a “Social Security Trace.” In cases where an employer does not have a sound business reason to obtain a credit report, obtaining the Social Security Trace can give information about a person’s past addresses and will help to discover any identity fraud issues. It also helps employers determine where to search for criminal records. It is a record that provides names and addresses that are associated with a social security number in records maintained by credit bureaus. Some screening firms use an enhanced tool called an “Address Information Manager” that contains data from numerous other databases.

Many employers mistakenly believe these searches are an “official” recitation of government records. The Social Security Trace information is NOT being accessed directly from government records, and is therefore not an official verification of a Social Security Number. A Trace report may contain data from the Social Security Administration’s list of deceased individuals, but usually the report is created from data found in the databases created by private firms.

In addition, it is critical to understand that a Social Security Trace report is NOT an official registry of current or past addressees. For a number of reasons, current and past addresses will not appear on a Trace report if the applicant never used those addresses in any dealings of interest to the major credit bureaus. On occasion, there may be no names or addresses associated with an SSN. This can occur when a person has never applied for credit, they are too young to be in the credit bureau records, or they are new to this country and have not built a credit history.

An employer should never make a direct hiring decision based upon the absence of an address in a Social Security Trace. Although Trace reports can be helpful for identity purposes and for determining where to search for criminal records, they are not positive proof of identify or the validity of a Social Security Number. However, the information in a Trace report can be the basis for further research of an applicant.

In addition, a screening firm can provide a state of issue and year of issue. This information also does not come from official government records. Rather, the information is based upon publicly available informatin on how a social security number is issued. The first three numbers reflect the state of issue and the middle two numbers are related to year of issue. However, not all Americans will obtain a social security number at the same age, so that information may not be as useful as it appears.

For more information about the Social Trace reports and social security number and screening, see, “The Safe Hiring Manual,” by ESR President, Lester Rosen.


4. ESR in the News! ESR is the Official Background Screening Firm for Real Santas

ESR is pleased to announce that it has been selected as the official background screening for “Real” Santa’s. A real Santa is gentleman with an authentic bread and holiday spirit. ESR is pleased to help children everywhere enjoy a safe and happy holiday season. For more information, see: www.Realsantas.com. See the Story at http://www.redding.com/news/2007/nov/27/not-so-jolly-santa/

ESR has recently been featured in two Human Resources articles in national HR publications.

In the October 2007 issue of HR Magazine published by SHRM, the issue of “How Deep Can You Probe,” is examined. ESR president Lester S Rosen is quoted at length on the legal implications of background screening.

In the July issue of Human Resources Executive, ESR President Lester Rosen is also quoted in an article on. “Immigration and Aggravation.” Rosen is quoted on issue involved in using biometric measurements for immigration controls. The article concludes with a quote from Rosen that “The employers who do the bare minimum are the one who get into trouble. When its easy entry, it’s easy fraud.”

ESR 2007 Schedule

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow) Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

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.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

October 2007 Vol. 7, No. 10

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Hot Off The Press: Ninth Circuit Ruling Vacating Previous Judgment Demonstrates Why Background Screening Requires Expertise

2. The Use of Military Records for Employment

3. Urban Myth: Courts Destroy Criminal Records That Have Been Set Aside or Expunged

4. ESR Featured In Two Human Resources Articles In National HR Publications


1. Hot Off The Press: Ninth Circuit Ruling Vacating Previous Judgment Demonstrates Why Background Screening Requires Expertise

On September 25, 2007, the federal Ninth Circuit Court of Appeals vacated and reversed a judgment in a case previously discussed in the May, 2007 ESR Newsletter. In the first ruling earlier this year, the Ninth Circuit ruled that a consumer reporting agency can reasonably rely upon court records, even if the court made a mistake. In Dennis v. BEH-1 and Experian Information Solutions, a consumer credit report showed that the plaintiff had a judgment against him in a civil case. In fact, the plaintiff had entered into a stipulation that as long as the plaintiff made payments on the debt, no judgment would be entered. However, a court clerk erroneously reported there was a judgment in both the court trial minutes and the Register of Actions. Consequently, the credit report from the credit bureau reported a civil judgment, even though no judgment was entered.

However, ESR also noted in the May Newsletter that, “Where the case became even more interesting was that when Experian sent a researcher to re-investigate the credit report, Experian found the stipulation that indicated there was no judgment.

Apparently, the Ninth Circuit also found that to be an interesting point, because on a petition for re-hearing, took the very unusual step of changing course and reversing itself. In the new ruling issued September 25, 2007, it withdrew the original first ruling and ruled that Experian was in fact liable. The Court noted that the trial court’s file very clearly indicated there was not a judgment. Therefore, reporting a judgment was factually wrong.

The Court further noted that when conducting a re-investigation, a credit agency “must exercise reasonable diligence in examining the court file to determine whether an adverse judgment has, in fact, been entered against the consumer.” Since the court file contained a paper that clearly indicated there was no judgment, the credit agency did not fulfill its obligations.

The Court also gave guidance to what it expected from credit agencies. The opinion stated that:

“This case illustrates how important it is for Experian, a company that traffics in the reputation of ordinary people, to train its employees to understand the legal significance of the documents they rely upon.”

This case once again underscores that background screening is simply not a data supply business. Screening is a professional service that requires substantial expertise and experience. ESR, for example, has all of its background specialists complete an intensive 30 hour training course in addition to periodic in-house training. Employers that select a screening service based just upon price are potentially placing themselves, as well as their workers, customers and the public, at grave risk.

For a copy of the court decision, contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@esrcheck.com.


2. The Use of Military Records for Employment

Another record that some employers may want to verify is a military service record. With the national focus on the military with the events in Iraq and Afghanistan, it is likely that employers will receive applications from those with military experience. Many employers find that applicants with military service provide critical skills and training that are extremely valuable in the workforce.

The standard way to verify military records is to ask an applicant for a copy of his or her DD-214. This is the common term for the document given to all members of the military who are discharged from the U.S. Navy, Army, Air Force, Marine Corp, or Coast Guard. The “DD” stand for Department of Defense. The short name is “discharge papers.”

For employers who want more than a cursory confirmation of military service, the story goes much deeper. There are actually a number of different copies of the DD-214 with different pieces of information. A discharged service person receives copy 1, which has the least information. The copy with the codes that gives the nature of the discharge, i.e., General, Honorable, Dishonorable, etc. – and details of service is actually on copy 4. The codes characterize the service record of a veteran. The codes are known as SPD (Separation Program Designator), SPN (Separation Program Number) and RE (Re-Entry) codes. Other issues with access and use of the DD-214 are listed below.

  1. For a discharged service person to get copy 4, the person must actually ask for it.
  2. If a person did not ask for the copy 4, or wants to hide some embarrassing fact, then the person may only present copy 1 to an employer.
  3. If the employer wants copy 4 and the applicant does not have it, then there can be a problem acquiring and understanding the copy. The employer can have the applicant sign a Form 180 and send it to the National Personnel Records Center (NPRC) in St. Louis, Missouri. However, there can be a wait up to six months. Some records are no longer available due to a very destructive fire at the St. Louis facility in 1973. [footnote: Although the government has reconstructed some of the records by use of other military documents. For details about these military records, see http://www.archives.gov/veterans/index.html]
  4. A note of caution. Even after getting a copy 4, there is the issue of translating the military codes. There are websites that provide a complete list of the codes and definitions. However, should civilian employers use these codes for hiring decisions, since the codes were meant for internal military use only? The various codes may represent items that have no foundation or were the result of clerical errors, or are simply not related to job performance.

When making hiring decisions, employers should be very careful before attempting to draw conclusions from various codes on the DD-214. Using the codes on the DD-214 to infer conduct in order to make hiring decisions could result in claims of discrimination, or decisions being made based upon irrelevant or unsubstantiated criteria. The situation can be further complicated if the employers insist that an applicant first obtains a complete DD-214 and then rejects the applicant. That record request could potentially be viewed as evidence of discrimination.

An employer should also exercise caution in using a discharge as a basis of an employment decision. There are four common types of military discharges: honorable, general, undesirable, and dishonorable. Of these, only a dishonorable discharge is given as a result of a factual adjudication equivalent to a criminal trial. In order to avoid potential EEOC claims, an employer should treat a dishonorable discharge in the same fashion as a criminal conviction, taking into account the various factors reviewed in Chapter 11. A general discharge or undesirable discharge may or may not have any bearing on employment and generally should not be the basis of an employment decision.

The best advice may be to use the basic DD-214 to confirm a person was in fact in the military, then ask for the names of references from their military service to obtain job-related information that would be relevant to an employment decision.


3. Urban Myth: Courts Destroy Criminal Records That Have Been Set Aside or Expunged

(This is the third story about Urban Myths and Employment. The first myth was that employers do not need to perform background checks on licensed professionals. The second myth was that credit scores are used by employers for hiring.)

An Urban Myth that can surprise job applicants is that after a judge vacates, expunges, sets aside, defers the adjudication or otherwise judicially erases a criminal record in some fashion, the records disappear and can never be found.

With limited exceptions, the general rule is that the government does not destroy records. In the typical scenario, even if the judge orders a set aside, the consumer’s name can still be found by searching the court indexes and the case can still be viewed as a public record. As a general rule, the only way that a background firm knows that there has been a judicial set aside is to examine the court file where all court orders should be noted.

Of course, each state is different but as a general rule, unless an applicant has been advised by an attorney that the criminal case will be sealed and physically not available anywhere, applicants need to understand that even a criminal case that they thought was erased may still show up.

Even in those situations where the court has ordered the case sealed, the damage may already be done since the record of the case may already reside in a commercial database. If a background firm locates the case in a commercial database, then the background firm has certain obligations under the federal Fair Credit Reporting Act and similar state laws. A background screening firm is required to either notify the applicant that a criminal record is being provided, or must pull and examine the actual court file to ensure accuracy. For employers that want to avoid finding out about criminal records that have been judicially set aside, the best practice it make sure you are working with a screening firm such as Employment Screening Resources that automatically pulls the court file whenever there is a database match to make sure the criminal record is complete, accurate, up to date, applies to your applicant and is reportable.


4. ESR Announcements and Seminars

ESR has recently been featured in two Human Resources articles in national HR publications.

In the October 2007 issue of HR Magazine published by SHRM, the issue of “How Deep Can You Probe,” is examined. ESR president, Lester S. Rosen, is quoted at length on the legal implications of background screening.

In the July issue of Human Resources Executive, ESR president, Lester S. Rosen, is also quoted in an article on “Immigration and Aggravation.” Rosen is quoted on issues involved in using biometric measurements for immigration controls. The article concludes with a quote from Rosen that “The employers who do the bare minimum are the ones who get into trouble. When it’s easy entry, it’s easy fraud.”

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contractors or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

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

ESR 2007 Schedule

November 9/10, 2007 Baltimore, MD “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)

November 12, 2007 Tampa, FL The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.comif you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

September 2007 Vol. 7, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Urban Myths Continued – Credit Scores are Utilized for Employment

2. Adverse Action Letters: A Critical Step for Employers

3. In the News: Background Checks of Volunteers

4. ESR Announcements and Seminars


1. Urban Myths Continued – Credit Scores are Utilized for Employment

Last issue, ESR addressed the Urban Myth that licensed professions, such as doctors, lawyers, CPA’s or teachers do not need a background check because some governmental agency is in charge of overseeing them.

In this issue, we explore another urban myth that just will not die—that credit scores are used for employment purposes.

An Urban Myth can be described this way; “legends are a kind of folklore consisting of stories often thought to be factual by those circulating them. Urban legends are sometimes repeated in news stories.”

On September 13, 2007, VISA USA issued a press release with the headline: “Americans Unaware That Employers Can Legally Refuse to Hire Job Applicants With Low Credit Scores.” The story said that, “the vast majority of Americans do not know that a bad credit score is more than just a barrier to getting a loan — it may also keep you from getting the job you want.”

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/09-13-2007/0004662292&EDATE

The problem with the story? It is just not factual. The plain fact is that employment credit reports simply do not contain a credit score, since there is no validity in studies that suggest a credit score bears a relationship to employment. It is, of course, fair to say that employers can access an employment credit report which can contain elements of a credit history, so that meeting obligations may be helpful for employment. But to say the credit score is used or provided is factually incorrect.

Unfortunately, the story was then repeated as though accurate in another Bay Area newspaper. The problem with such inaccurate information of course is that it can only cause consumers to suffer unnecessary worry and anxiety. In addition to any other worries, consumers with low credit scores may now think they must worry about employment as well.

Fortunately there was one reporter who saw through the Urban Myth and exposed it for what it was. Columnist Brian O’Connor of the Detroit News set the record straight that employers do not get credit scores and that the credit scores are meant for credit risk and not employment. His advice: “So any job-hunters out there can stop worrying about whether last month’s late utility bill will keep you out of work.”

http://www.detnews.com/apps/pbcs.dll/article?AID=/20070915/OPINION03/709150334/1010/BIZ01

The bottom-line: VISA USA does a commendable job in bringing financial education to consumers, but even they fell for this urban myth. It demonstrates once again that background checks and hiring are complicated subjects that are heavily regulated and present a number of potential traps for the unwary.


2. Adverse Action Letters: A Critical Step for Employers

Employers that obtain background reports must be very careful to understand and follow the adverse action rules as required by the federal Fair Credit Reporting Act (FCRA). Where an employer receives a Consumer 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 a copy of the report and a summary of their rights prepared by the Federal Trade Commission.

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 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.

As a practical matter, by the time an applicant is the subject of a Consumer Report, an employer has spent time, money and effort in recruiting, and hiring. Therefore, it is in the employer’s best interest to give an applicant an opportunity to explain any adverse information before denying a job offer. If there was an error in the public records, giving the applicant the opportunity to explain or correct it could be to the employer’s advantage.

Even if there are other reasons for not hiring an applicant, in addition to matters contained in a consumer report, the adverse action notification procedures still apply. If the intended decision was based in whole or part on the Consumer Report, the applicant has a right to receive the report. In fact, these rights apply even if the information in the consumer report used against an applicant is not even negative on its face. For example, an applicant may have a perfect payment record on his or her credit report, but an employer may be concerned that the debt level is too high compared to the salary. The applicant still is entitled to a notice of pre-adverse action, because it is possible that the credit report is wrong regarding the applicant’s outstanding debts. In a situation where the employer would have made an adverse decision anyway, regardless of the background report, following the adverse action procedures is still the best practice for legal protection.

The question that arises is how long an employer must wait before denying employment based upon information contained in a Consumer Report. The Fair Credit Reporting Act is silent on this point. However, many legal authorities advise that an employer should wait a reasonable period of time before making the final decision. This period should be the time that would be needed for an applicant to meaningfully review the report and make known to the employer or the Consumer Reporting Agency any inaccurate or incomplete information in the Consumer Report. This does not mean that an employer is required to hold the job open for a long period of time. After the first notice is given, and the applicant has had an appropriate opportunity to respond, an employer may either wait until there has been a re-investigation, or fill the position with another applicant. Most employers find as a practical matter that this provision of law does NOT impose any hardship or burden upon an employer. Even though in rare situations an employer may have questions on how to proceed, the clear advantages of a pre-employment screening program far outweigh any complications that can theoretically arise from compliance.

If, after sending out the pre-adverse action notice, the employer intends to make the decision final, the employer must take one more step. The employer must send the applicant a Notice of Adverse Action informing the job applicant that the employer has made a final decision, along with another copy of the FTC form “Summary of Your Rights under the Fair Credit Reporting Act.” There is certain mandatory information that the second letter must contain.

For a more in-depth discussion and sample of pre-adverse and post-adverse letters, as well as additional information about the FCRA, see. “The FCRA in Four Easy Steps for Employers,” at http://www.esrcheck.com/articles/article9.php or contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@ESRcheck.com


3. In the News: Background Checks of Volunteers

According to a recent article in the Los Angeles Times on September 16, 2007, background checks have become so pervasive in the work world that you might as well count on undergoing one if you’re a candidate for a big job. However, the article pointed out that now volunteer organizations are also requiring checks. See: http://www.latimes.com/business/la-fi-consumer16sep16,1,2119079.story?coll=la-headlines-business

The article quoted ESR President Lester Rosen in parts:

“We first started hearing from volunteer organizations in about 2000,” said Rosen, who was founding director of the National Assn. of Professional Background Screeners. “There had been a shift in the national consciousness.”

The shift, he said, was largely caused by the ever-increasing awareness of sex abuse scandals in the Catholic Church as well as secular organizations.

A scandal could crush an organization by bringing gifts and grants to a near halt. And a group could be subject to big lawsuits if found lax in regard to its volunteers.

Still, organizations that relied on volunteers at first resisted background checks.

“There was a lot of push-back,” Rosen said. “Volunteers were wonderful people. They were coming forward to do good work. It was almost not polite to ask them questions that might seem intrusive.”

“The attitude toward background checks for volunteers has changed, Rosen said. They have become accepted, in large degree, as a necessary evil.

“It used to look like it was a ‘1984’ kind of thing,” he said. “But if it’s presented as part of contributing to the greater good, it becomes part of the volunteer experience.”

Certain states have legislation permitting organizations to take advantage of state fingerprinting or criminal record programs. On October 9, 1998, President Clinton signed the Volunteers for Children Act into law – Public Law 105-251 – amending the Nat’l Child Protection Act of 1993. Organizations and businesses dealing with children, elderly, or the disabled may now use national fingerprint-based criminal history checks to screen out volunteers and employees with relevant criminal records.

The Wisconsin Attorney General’s Office has produced an excellent brochure describing not only their state program, but also the Federal Act and how to obtain FBI background checks; see the online version at www.doj.state.wi.us/dles/cib/forms/brochures/vol_children.pdf

The same office also provides a website listing state sites where volunteer organizations can obtain fingerprint information. see www.doj.state.wi.us/dles/cib/sclist.asp

One question that arises is whether a screening on a volunteer needs to be conducted under the Fair Credit Reporting Act (FCRA), since the volunteer is not paid. The best practice is to still operate under the FCRA, even for volunteers. There is no requirement under the FCRA that a person is only employed if they are paid in monetary form. The Federal Trade Commission (FTC), the federal agency with responsibility to enforce the FCRA, takes the position that the FCRA is given broad interpretation to protect consumer’s rights.

Conclusion: an organization should not assume the FCRA does not apply just because a person is a volunteer.


4. ESR Announcements and Seminars

ESR Announces New printing of the Safe Hiring Manual!

Employment Screening Resources (ESR), announces the release in September, 2007 of an updated and revised fourth printing of “The Safe Hiring Manual -The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen.

“The Safe Hiring Manual” is the first comprehensive book on how to conduct background checks and how to exercise due diligence throughout the hiring process. The revised release examines developing issues in background checking, such as the use of the Internet and social networking sites to screen candidates, screening employees post-hire and the dangers of utilizing home-based operators or foreign data centers for background screening. The book also updates users on new laws and recent developments in the use of credit reports.

Published by Facts on Demand Press, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, background firms, private investigators, and labor lawyers. The 512-page book significantly increases an employer’s chance of avoiding the financial and legal nightmares of even one bad hiring decision.

“This book is intended as the first comprehensive guide to background checks and safe hiring for employers,” explains author Rosen. “The book provides a number of practical, cost-free ‘how-to’ steps that employers can take immediately to avoid hiring criminals with unsuitable records and imposters. It is also intended as a detailed reference book on background checks and best practices.”

The Safe Hiring Manual covers:

  • Effective use of applications, interviews and past employer checks as key hiring tools.
  • Verifying educational degrees and credentials, and how to legally obtain and use criminal records.
  • Compliance with legal mandates including the Federal Fair Credit Reporting Act (FCRA), EEOC issues, Patriot Act, Privacy laws, Sarbanes-Oxley, state law compliance, negligent hiring and other legal issues.
  • In-depth pre-employment background screening and investigative techniques.
  • Critical information on how to identify terrorists and perform international background checks.
  • How to audit the effectiveness of your current hiring program, how to select a pre-employment screening firm and how the background screening industry works.

The book also serves as the text for the only professional development course available on background checks, the 30 hour “Safe Hiring Certification Course,” available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

See: http://www.esrcheck.com/SafeHiringManual.php

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth searches and litigation support ESR has introduced a new service, an “IntegrityCheck,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee on onsite without due diligence, cannot ensure that the same due diligence is applied to vendors, independent contracts or temporary employees.

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

ESR 2007 Schedule

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007 Baltimore, MD “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)

November 12, 2007 Tampa, FL “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

7110 Redwood Blvd., Suite C

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

August 2007 Vol. 7, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Urban Myth: Licensed Professionals Such as Doctors, Lawyers or Teachers, Do Not Need Background Checks

2. Electronic Signature Law Allows Paperless Background Checks

3. E-Verify New Name for the Basic Pilot Program for Online Right to Work Verification

4. ESR President Featured on SHRM Home Page


1. Urban Myth: Licensed Professionals Such as Doctors, Lawyers or Teachers, Do Not Need Background Checks

A popular urban myth is that members of regulated and licensed professions, such as doctors, lawyers, CPA’s, nurses or teachers do not need a background check because some governmental agency is in charge of ensuring that individuals that commit crimes or misconduct will not have a license to practice their profession.

Unfortunately, nothing can be further from the truth. Licensing is conducted by numerous boards in the 50 states and territories. Due to some of the following factors, it is entirely possible for a criminal to be licensed by a state agency:

  1. The system for a licensing board to discover a criminal conviction is far from perfect. Conviction data may not be sent to a licensing board immediately, or at all. In addition, there can be a substantial lag time between the alleged criminal act, the arrest and the conviction.
  2. Even if the criminal conviction is discovered by the licensing board, the disciplinary process takes time. Unless the licensing board takes action to issue an immediate suspension, the licensee may be able to continue to practice while the administrative procedures drag on.
  3. While the disciplinary action is pending, a licensee may simply move to another state and apply for a license, covering up the proceedings in the first state. In other words, a licensee may try to “beat the discipline” before the new state finds out about it.
  4. Even if a person is suspended in one state, an employer cannot assume that all state licensing boards share information with each other. As we discovered post 9/11, we do not live in a world where the government routinely collects and shares data with other governmental entities.
  5. There can even be situations where a person commits a crime that does not result in losing a license, but is still important for an employer to know about. In fact, in some licensed occupations, a person may even get a “private” reprimand meaning that a check with the appropriate licensing board may not reveal anything.

The bottom-line: Employers that hire a member of a licensed or regulated occupation cannot assume that they are immune from liability simply because a person appears to have a current license. Since it is possible for criminal convictions or acts of misconduct to “fall through the cracks,” an employer still has a duty to exercise due diligence by its own independent background check.

For a listing of the numerous state agencies that license occupations, see: http://www.brbpub.com/pubrecsitesOccStates.asp


2. Electronic Signature Law Allows Paperless Background Checks

One of the biggest sources of pain for recruiters in the hiring process is obtaining the paperwork necessary for the background check and then entering data into an online screening system. Typically, recruiters struggle to obtain a “wet signature,” meaning that they need to have the applicant sign an actual piece of paper containing the background consent and disclosure, and physically get that to the screening firm. If the recruiter utilizes an online background screening system, then the data must be entered on the background firm’s system.

All of those burdensome tasks, however, are a thing of the past. By using electronic signatures with the latest technology, sophisticated background firms can now offer “paperless” online background checking systems, where the applicant fills out the online information and signs an online consent.

Such a process is permissible due to a law passed in n October, 2000, called the Electronic Signatures in Global and National Commence Act (ESIGN). Section 101(a) of the act provides that—

“(a) . . . Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce -(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”

The Federal Trade Commission, which regulates pre-employment screening under the Fair Credit Reporting Act, revisited the issue of electronic authorization in the Zalenski letter (www.ftc.gov/os/statutes/fcra/zalenski.htm) issued May 24, 2001. The FTC concluded that in view of the ESIGN Act, it was possible to use electronic signatures for authorization for a background check. The FTC indicated that whether or not the electronic signature is valid depends on the specific facts of each situation. Specifically;

  • The electronic signature must clearly convey the consumer’s instructions.
  • The FTC stated that as specified by Section 101(e) of the ESIGN Act, that consumer’s electronic authorization “must be in a form that can be retained and retrieved in perceivable form.” In other words, there must be a clear and reproducible record showing the electronic consent.

At a minimum, any firm attempting to obtain electronic compliance online should go through a series of screens, each one giving the applicant the chance to continue or to exit. For each screen that conveys information, there should be an opportunity for an applicant to indicate by a mouse click if they “understand and agree” or “do not understand and agree.” If they hit the “do not understand and agree,” then they should be sent to a screen that makes it easy to obtain more information.

In order to allow recruiters and employers to take advantage of the ESIGN Act and the latest technological developments, ESR has introduced that Applicant Generated Report (AGR) system, where job applicants go online and fill out the information needed for a background check and give an electronic online consent. There is even a “mouse” signature feature. This does away entirely with recruiters performing data entry or sending documents to a screening firm. For more information, see: http://www.esrcheck.com/Applicant_Generated_Reports.php


3. E-Verify New Name for the Basic Pilot Program for Online Right to Work Verification

In August, 2007, the federal government’s Basic Pilot Program used for electronic verification of the right to work in the U.S. was renamed “E-Verify,” and the federal government has announced that the system will be undergoing enactments. Also, new I-9 forms are expected in the future. See: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm

ESR is qualified to act as an employer’s Designated Agent, to perform the verification of employment eligibility checks. Utilizing databases administered by the Department of Homeland Security and Social Security Administration, employers can utilize ESR to check the information on an I-9 form to determine that individual’s employment eligibility. To participate in the E-Verify (Basic Pilot) Program, an employer must first provide ESR with information so that ESR can register an employer. As part of the registration process, an employer must execute a Memorandum of Understanding (MOU) that sets forth the responsibilities of the Social Security Administration, the U.S. Citizenship and Immigration Services Bureau, and the employer.

Although the program is voluntary, many employers find that utilizing ESR as their agent to participate in the program has numerous advantages. Because many employers do not have the time or resources to personally verify the employment eligibility and other critical information of all potential employees, ESR can provide this valuable service. Most critically, if an employee is not verified, ESR can help walk an employer through the necessary steps.

The I-9 service occurs within the first 72 hours of employment. To begin this service, an employer simply provides ESR with a sign-up form so that ESR can set-up an account for the employer. Then, the employer simply advises ESR each time a new employee is hired, and provide the means of verification used. In the event that a worker is NOT authorized, then ESR will assist you through the steps that must be taken.

One state, Arizona, has mandated the use of Basic Pilot Program starting in January 2008.

For more information, contact Jared Callahan of ESR at 888-999-4474 Ext. 240 or jcallahan@esrcheck.com.


4. ESR President Featured on SHRM Home Page

ESR’s President, Lester Rosen, was featured on the front page for the web site of the Society for Human Resources Management (SHRM) during the week of Augusts 20, 2007 as part of a new series of SHRM multi-media interviews. The interview was conducted at the annual national SHRM Staffing Conference in New Orleans this year where Mr. Rosen presented two sessions. For more detail see: www.SHRM.org

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contractors or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

September 5-7 Keystone, CO Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.

September 20, 2007 National Teleseminar “Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007 Baltimore, MD “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)

November 12, 2007 Tampa, FL “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim. Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

July 2007 Vol. 7, No. 7

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Genuine “Fake” Diplomas on the Rise

2. The Top Five Reasons NOT to Use Home-Based Operators to Perform Employment and Education Verifications

3. Free Interview Generator Tool Available to Employers

4. ESR Speaking Schedule and Educational Opportunities


1. Genuine “Fake” Diplomas on the Rise

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.

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.”


2. The Top Five Reasons NOT to Use Home-Based Operators to Perform Employment and Education Verifications

Employers concerned about the privacy and security of an applicant’s personal and identifiable information (PII), should take steps to ensure that a background screening firm is protecting that information appropriately during the screening process. One area where there is a risk is if a background firm utilizes home-based operators to perform the verifications. Here are some potential issues when home-based operators are given personal data in order to call schools and employers:

  1. Privacy: In order to accomplish the work, the home operator is usually given the applicant’s date of birth and social security number. Since the operators are at home and beyond any supervision, a screening firm has very little control over what happens to the data. Not only is there the potential for direct miss-use or theft of the data, but a screening firm has no idea who is going in or out of the operator’s home, what information is being left laying around on a kitchen table or dorm room, what is being left on the computer, how passwords are protected, who has access to the operators computer or a host of other risk factors.
  2. Security: There are security issues with at home operators. For example, the screening firm does not know who is accessing the computer system, making the calls, entering data or if calls are even being made. A certain amount of auditing may reveal some abuse eventually, but not until the damage is done.
  3. Training: Another vital issue is standardized training across all operators. With at-home workers, training is extremely difficult to conduct. In addition, since operators are working in isolation at home, the opportunity to catch and correct errors timely is lost. Nor can at home operators have the opportunity to learn from each other and develop additional expertise by interacting with co-workers.
  4. Supervision and Quality Control: With at-home operators, it is difficult to implement quality control. There is nothing to prevent an at-home operator from just closing the orders or even “faking” data just to get a complete. Since the background firm does not know how much time the at-home operator spent on the phone, there is no way to run routine cross-checks or productivity reports that helps to assure quality control.
  5. Real-time Status Updates: In a typical home worker situation, the worker is given a list of verifications to perform, and certain work rules. However, until the verification is complete, the Consumer Reporting Agency ((CRA), another way of saying “background firm” as defined by the Federal Trade Commission) does not have status, nor can the CRA tell exactly who was called, when the call was made and the current status.

Other then trying to save money, there is no inherent reason that such verifications need to be outsourced to home based operators. If the at-home workers are misclassified as independent contractors when in fact they should be paid as employees, the matter gets even more complicated. Given the potential risks invoked, an employer may want to verify exactly how their verifications are being performed.


3. Free Interview Generator Tool Available to Employers

Employers preparing for job interviews can utilize a free Interview Generator tool created by ESR. It is available at http://www.esrcheck.com/Interviewgenerator.php

The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer.

The structured interview form can be broken into six separate sections, including: general questions about the applicant, questions about the particular job, behavior and attitude questions, employment history, security questions and follow-up questions.

Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.

The Interview Generator also allows employers to select the five critical interview questions that ESR recommends be asked at every interview. These questions focus in on the essential safe hiring issues, including criminal records, employment history and credentials and unexplained employment gaps.

See: http://www.esrcheck.com/Interviewgenerator.php


4. ESR Speaking Schedule and Educational Opportunities

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contractors or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.

September 20, 2007 National Teleseminar” Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007 — “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), Baltimore, MD

November 12, 2007 Tampa, FL Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator( Intended for background firms and record retrievers ) “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.”

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim. Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow)

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

June 2007 Vol. 7, No. 6

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New U. S. Supreme Court Case Decided June 4, 2007 on “Willfulness” Under the FCRA May Have Dramatic Impact on Employers and Screening Firms in the Future

2. New Restrictions on the Use of Credit Reports

3. From the Mailroom: How do Background Checks Actually Protect Employers from a Bad Hire?

4. ESR Speaking Schedule and Educational Opportunities


1. New U. S. Supreme Court Case Decided June 4, 2007 on “Willfulness” Under the FCRA May Have Dramatic Impact on Employers and Screening Firms in the Future

A new case from the U. S. Supreme Court relating to the application of the Fair Credit Reporting Act (FCRA) to certain insurance industry practices decided June 4, 2007, may have significant impact on employers when it comes to background checks. The case, Safeco Ins. Co. v. Burr, No. 06-84, 2007 U.S. LEXIS 6963 (June 4, 2007), dealt with the use of credit reports to set insurance rates and the obligation of insurers to send out “adverse action” notices to consumers whose rates were affected by their credit reports.

However, the case also concerned the definition of “willful” under the FCRA. That was critical since under FCRA section 616 (15 U.S.C. ง 1681n), punitive damages are only allowed if there was willful non-compliance.

The Court dealt with a split among lower federal courts on what the FCRA meant by “willfulness.” Some courts had ruled that a willful violation of the FCRA meant that a business had to have actual knowledge that their conduct was in violation of the FCRA.

However, the Supreme Court ruled that a “reckless disregard” of the FCRA was sufficient. A reckless disregard can be an action entailing “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Recklessness is a higher standard than mere negligence, but a lower standard than what other lower federal courts had imposed. The net effect is that it is now easier to sue an employer or screening firm for punitive damages.

The bottom-line: Just because a screening firm or employer believes it is acting lawfully, that is NOT a protection from an allegation of “willful” violation of the FCRA and exposure to punitive damages. A screening firm or employer is now held to a higher standard of compliance. Where the line will be drawn between mere negligence and recklessness in any particular case is always a difficult proposition. The net-effect is that if a lawsuit is filed against screening firms or employers for FCRA violations, a request for “punitive” damages on a “recklessness” theory is more likely. There is also an increased possibility of class action lawsuits based upon FCRA violations because of the loosened “willfulness” definition to include recklessness. This underscores again the critical nature of legal compliance when it comes to background checks.

For a copy of the Supreme Court decision, contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@esrcheck.com.


2. New Restrictions on the Use of Credit Reports

A change in the laws for background screening in the state of Washington that goes into effect later this year underscores once again that background screening is a highly legally regulated activity and the use of credit reports in particular need to be paid careful attention.

Under the amended Washington law, employers cannot obtain a credit report as part of a background check unless the information is:

(i) Substantially job related and the employer’s reasons for the use of such information are disclosed to the consumer in writing; or

(ii) Required by law.

See: RCW 19.182.020

The immediate impact is that employers in the state of Washington who are utilizing employment credit reports will need to change their forms. Washington employers will also need to carefully review any job position where a credit report is requested and to be able to communicate to job applicants the reason a credit report is substantially related to a particular job.

This law underscores the sensitivity of the use of credit reports for employment purposes. As a general rule, any pre-employment assessment tool must be both a valid predictor of job performance and non-discriminatory. Credit reports have recently come under scrutiny on both counts.

Since employment credit reports do not contain actual “credit scores,” employers need to carefully consider how to utilize the information contained in a credit report to determine if the information is related to the job. Employers typically look at factors such as the income to debt ratio, to determine if an applicant who will have access to cash or assts is under financial pressure. An employer may also look to see how a person has handled their own financial affairs as an insight as to how they will handle the employer’s finances.

However, employers need to be aware that there can be errors in credit reports, or information that is not relevant to job performance, such as high debt brought about by medical bills for example.

If a pre-employment assessment tool has the impact of disproportionately excluding members of protected groups from employment consideration, then that can potentially give rise to discrimination claims. Credit reports can have an unfair impact unless its use is job related and necessary for the operation of the businesses.

The bottom-line: Even though the new law is only in effect in Washington state, the underlying message is a good one for employers everywhere. Employers utilizing credit reports should carefully scrutinize why they are being used and for what purpose to ensure the information obtained is substantially related to a position.

3. From the Mailroom: How do Background Checks Actually Protect Employers from a Bad Hire?

Every employer knows that a bad hiring decision can create a legal and financial nightmare. If an employer hires someone who turns out to be dangerous, unqualified or unfit for the job, the employer must spend time and energy to deal with the situation including termination.

A program of pre-employment screening can help employers in four essential ways:

  1. Deterrence of Potential Problems  Just having background screening can discourage applicants with something to hide. Making it clear that screening is part of the hiring process can deter potentially problematic applicants and discourage applicants with something to hide. An applicant with serious criminal convictions or falsified information on his or her resume is less likely to apply at a firm that announces pre-employment background checks are part of the hiring process.
  2. Encourage Honesty A candidate who may have some blemish on their record may be well qualified for employment. However, employers need to be fully informed when making a hiring decision. Having a safe hiring program that includes background checks encourages applicants to be especially forthcoming in their interviews. Making it clear that background checks are part of the hiring process is strong motivation for applicants to reveal information about themselves they feel may be uncovered by a background check.
  3. Fact-Finding Although instincts play a role in hiring, basing a decision on hard information is even better. Effective screening obtains factual information about a candidate in order to supplement the impressions obtained from an interview. It is also a valuable tool for judging the accuracy of a candidate’s application since screening limits uncertainty in the hiring process.
  4. Due Diligence Just Implementing a background checking program helps an employer demonstrate due diligence in their hiring, and is a powerful defense in the event of a lawsuit.

4. ESR Speaking Schedule and Educational Opportunities

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

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.

July 16-18 Orlando, FL “Pre-employment Background checks,” National meeting of the Association of Certified Fraud Examiners (ACFE)

September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.

September 20, 2007 National Teleseminar “Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007“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), Baltimore, MD

November 12, 2007 Tampa, FL Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator( Intended for background firms and record retrievers ) “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.”

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow).

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.comif you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

May 2007 Vol. 7, No. 5

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Hot Off The Press: Federal Court Rules that a Background Firm can Reasonably Rely on Court Records Even if the Court Made a Mistake

2. “Cyber Slamming”–Another Reason to be Careful “Googling” a Candidate

3. From the Mailroom: How Can a Background Firm Train Their Staff Members?

4. ESR Speaking Schedule and Educational Opportunities


1. Hot Off The Press: Federal Court Rules that a Background Firm can Reasonably Rely on Court Records Even if the Court Made a Mistake

On May 7, 2007, the federal Ninth District Court of Appeals issued a ruling that a consumer reporting agency can reasonably rely upon court records, even if the court made a mistake. In Dennis v. BEH-1 and Experian Information Solutions, a consumer credit report showed that the plaintiff had a judgment against him in a civil case. In fact, the plaintiff had entered into a stipulation that as long as the plaintiff made payments on the debt, no judgment would be entered. However, a court clerk erroneously reported there was a judgment in both the court trial minutes and the Register of Actions. Consequently, the credit report from the credit bureau reported a civil judgment, even though no judgment was entered.

The consumer notified Experian that the information was incorrect and requested a re-investigation. Pursuant to the federal Fair Credit Reporting Act (FCRA), Experian sent a researcher to the courthouse to review the court records. The court researcher confirmed that a judgment was entered on the official court records. However, Experian also obtained a copy of the stipulation between the parties that indicated that a judgment would NOT be entered unless the consumer failed to pay.

The Court held that Experian acted reasonably when it included erroneous information about the judgment in the original credit report. Although the information turned out to be incorrect, the Court held, as have other courts, that the mere fact that there was an error does not mean the consumer reporting agency is liable. The FCRA requires “reasonable procedure.” In other words, a consumer reporting agency is not held to a standard of strict liability for any error. However, if the error occurred because the consumer reporting agony did not utilize reasonable procedures, then there may be liability.

In this case, the Court decided that it was reasonable for a consumer reporting agency to accurately report what was in the court files. The fact the court made an error does not mean a consumer reporting agency is liable.

Where the case became even more interesting was that when Experian sent a researcher to re-investigate the credit report, Experian found the stipulation that indicated there was no judgment. The Plaintiff argued that Experian should have caught the error during the re-investigation. The majority of the judges held that because it was the court’s error, the plaintiff was in the better position to petition the court to clarify the mistake, and the consumer reporting agency could not be expected to ignore a court record and to clean up errors caused by a third party. A strongly worded dissent however, argued that since the consumer reporting agency was on notice there was an issue, it should have gone further with its re-investigation.

Since a credit report is just one type of consumer report, the same rules would apply to any information provided by a background screening firm, including for example criminal records.

The bottom line for employers is that it is critical to work with screening firms that understand how important it is to follow reasonable procedures. It underscores that background screening is not merely a matter of buying data, but it is a heavily legally regulated, knowledge-based professional service.

For a copy of the case, contact Jared Callahan at jcallahan@ESRcheck.com


2. “Cyber Slamming”–Another Reason to be Careful “Googling” a Candidate

In the March, 2007 newsletter, ESR discussed why employers should approach the use of the Internet with caution when it comes to “do it yourself” background checks on search engines or social network sites such as Facebook or MySpace.

Another reason to be careful before using a search engine to make a job decision has been in the news lately. It is called, “cyber slamming.” It occurs when defamatory statements are made about individuals on the Internet. The Internet is full of discussion boards and chat rooms where anyone can make an anonymous posting and say anything they want. Truth or good taste is not a prerequisite for anonymous public postings.

If a posting crosses the line into malicious and false statements, those can be extremely harmful if an employer finds them by running a candidate on a search engine. Innocent people can effectively be blacklisted and not even know it.

In the new cyber age, job candidates now need to be proactive in knowing what an Internet search will say about them. In addition to reviewing their own online identity, such as their Facebook or MySpace page, applicants need to investigate if anyone is saying things about them. There are actually services now for job applicants to protect their online reputation. One example of that type of service is at www.reputationdefender.com

3. From the Mailroom: How Can a Background Firm Train Their Staff Members?

Employers who select background firms often ask about how a background firm trains their staff members. In fact, large employers who issue formal “Requests for Proposals” will often want information on how staff members are both trained and updated. Smart employers understand that background checking is not merely clerical work where someone puts a name in a computer. Background checking is a knowledge-based profession that requires trained and skilled specialists to ensure that relevant and accurate information is returned on a timely basis.

Currently, the screening industry does not have an official certification program for background screening specialists. However, to meet the needs of its clients all over the U.S., ESR has developed a 30 hour intensive online course that all ESR employees must successful complete to become a certified Safe Hiring Specialist.

The course in fact has been approved for re-certification credits through the Human Resource Certification Institute (HRCI), and can be utilized for ASIS re-certification as well. See: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

The certification is also available for the entire screening industry and employers through BRB Publication at: http://www.brbpub.com/safehirecourse/

In addition, all ESR staff members are assigned to read, The Safe Hiring Manual, the 512 page definitive book on safe hiring and background checks, also written by ESR.

Finally, all ESR staff members receive ongoing and documented training.

To find out more about ESR staff training, contact ESR Marketing Director Jared Callahan at 415-898-0044 or at jcallahan@esrcheck.com


4. ESR Speaking Schedule and Educational Opportunities

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

May 22, 2007 Hayward, CA Avoid Negligent Hiring-Best Practices and Legal Compliance. Southern Alameda County Employer Advisory Council-8:30 am

May 23, 2007-Foster City, CA Avoid Negligent Hiring-Best Practices and Legal Compliance. San Mateo County Employer Advisory Council-Crowne Plaza Hotel, Foster City (lunchtime program)

May 24, 2007 Santa Rosa, CA The Latest Hiring Trends–Safe, Legal and Effective Hiring. Co-sponsored by the HR Matrix and approved for 1.5 units of HRCI credit. Contact ESR for additional details.

May 31, 2007 National Teleconference–“Understanding and Complying with the federal Fair Credit Reporting Act (FCRA).”-Sponsored by the Bureau of National Affairs (BNA)

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 20, 2007 National Teleseminar–“Background Checks–Legal Compliance in the Hiring Process.” By IOMA. For more information, see: See>>>

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.

July 16-18 Orlando, FL “Pre-employment Background checks,” National meeting of the Association of Certified Fraud Examiners (ACFE)

September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.

September 20, 2007 National Teleseminar “Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007“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), Baltimore, MD

November 12, 2007 Tampa, FL Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator( Intended for background firms and record retrievers ) “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.”

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow)

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

April 2007 Vol. 7, No. 4

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Recent Negligent Hiring Case Resulting from Workplace Murder Underscores Risks When Employers Hire Blindly

2. International Screening vs. Global Screening

3. National Screening Convention Held in Texas

4. ESR Speaking Schedule and Educational Opportunities


1. Recent Negligent Hiring Case Resulting from Workplace Murder Underscores Risks When Employers Hire Blindly

According to a news story in the April 5, 2007 Houston Chronicle, a lawsuit for negligent hiring was filed against a Texas employer alleging a worker shot and killed an employee’s husband who was waiting in the employee break room to take his wife out to a Valentine’s dinner. The lawsuit further alleged that the employer did not perform a background check. According to the article, the worker accused of the fatal shooting had been convicted in 1992 and sentenced to 10 years in prison for assaulting a police officer.

Although the facts have not yet been litigated, the allegations underscores once again that employers who do not exercise due diligence in hiring are playing Russian Roulette with their future, not to mention the safety of their workers and the public. An employer can be sued for negligent hiring where it is foreseeable that someone could be hurt if the employer hires someone that they either know, or should have known, was dangerous, unfit or unqualified. Assuming that most employers do not intentionally hire dangerous or unqualified workers, the employer is typically faced with the allegation in front of a jury that the employer “should have known” of the danger and should have considered that in the hiring process.

As a general rule, employers should assume that juries operate on a theory that if the employer could have known that an applicant had a serious criminal record, and then they should have known and are therefore responsible for the harm done.

The bottom-line: It has become an established fact of business life that due diligence in the hiring process is mission critical for employers. Any employer who does not address the issue is just a sitting duck for a host of problems, such as workplace violence, unqualified workers and litigation.


2. International Screening vs. Global Screening

International background checks are becoming an emerging standard of due diligence for employers hiring candidates in the US who have spent time abroad and where international employment, education and criminal checks are needed to check credentials and exercise due diligence.

However, international screening should not be confused with global screening. When a US employer opens an office or facility outside of the US, and wants to screen employees in the foreign county, that can be referred to as “Global Screening.” For example, if a firm opens up a sales office in France, or a production facility in Thailand, and wants to screen local workers, the US employer will typically contact a screening firm with expertise in that country.

Since there are 192 members of the United Nations, and each country has its own rules, customs and practices, it is difficult to summarize what resources are available globally or what the protocol should be in each country. However, a workable general rule is this: When in Rome, do as the Romans EXCEPT if it violates US law or is contrary to best practices utilized in US offices.

For example, a California employer was hiring a sales representative in Asia. A private detective was retained in the Asian country and advised the employer to check criminal records, education and employment as well as personal traits of the applicant, such as whether the applicant maintained a good home. Although apparently a standard area of inquiry in that county, the California employer chose not to investigate the applicant’s home life since in the US such an inquiry would be improper and inconsistent with the company’s policy of respecting privacy of its workers.

For more information on international screening offered by ESR, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

3. National Screening Convention Held in Texas

The fourth annual meeting of the National Association of Professional Background Screeners (NAPBS) was recently held in Austin, Texas. The association is the professional association for the screening industry with over 500 members.

The agenda included sessions on the proposed accreditation standards for the screening industry. It is anticipated that in the near future, employers will be able to choose to do business with screening firms that have met the NAPBS accreditation standards.

ESR is pleased to be a founding member of NAPBS. ESR president Les Rosen served as chairman of the steering committee that founded NAPBS and served as its first co-chair.

For more information about NAPBS, see www.NAPBS.com.


4. ESR Speaking Schedule and Educational Opportunities

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

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

May 22, 2007 Hayward, CA Avoid Negligent Hiring-Best Practices and Legal Compliance. Southern Alameda County Employer Advisory Council-8:30 am

May 24, 2007–Santa Rosa, CA The Latest Hiring Trends–Safe, Legal and Effective Hiring. Co-sponsored by the HR Matrix and approved for 1.5 units of HRCI credit. Contact ESR for additional details.

May 31, 2007–National Teleconference–“Understanding and Complying with the federal Fair Credit Reporting Act (FCRA).”-Sponsored by the Bureau of National Affairs (BNA)

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.

July 16-18 Orlando, FL “Pre-employment Background checks,” National meeting of the Association of Certified Fraud Examiners (ACFE)

September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

November 12, 2007 Tampa, FL Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator( Intended for background firms and record retrievers ) “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.”

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow)

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

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 have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)
March 2007 Vol. 7, No. 3

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Alert! Old Law Can Be Bad Law When It Comes to Keeping Employers Out Of Court

2. Credit Bureaus Increasing Requirements For Employment Credit Reports

3. From The Mailroom: Should an Employer Use Facebook or MySpace to Screen Applicants?

4. ESR Speaking Schedule


1. Alert! Old Law Can Be Bad Law When It Comes to Keeping Employers Out Of Court

A press release issued recently by an HR consulting service announced that it was offering background-screening services through a private investigation firm that did background checks. The investigative firm’s website went into considerable detail about how they searched criminal records in California, and the various time limits involved.

The only problem? The information was about nine years out of date! It referred to the state of the law in 1997. Back in 1997, a screening firm could not report criminal convictions older than seven years, unless the applicant made more than $75,000 a year. That law was repealed in 1998 so that under federal law, convictions can be reported without limitation.

However, there are still a number of states with their own laws. California, for example, in 2002, imposed a seven-year limit (with certain limited exceptions).

The bottom-line—background screening is largely a knowledge-based professional service and not merely an online data retrieval service. An employer who uses a firm just to save a few dollars may find out the hard way that the true cost of saving a few dollars can be substantial if they find themselves in court.


2. Credit Bureaus Increasing Requirements for Employment Credit Reports

The use of credit reports in employment decisions is becoming a hot issue. As reported in last month’s ESR newsletter, the Christian Science Monitor ran a story about the use of credit reports in employment. The story recounted arguments against the use of credit reports. The article also quoted ESR president, Les Rosen, on why employers utilize credit reports. According to the article, the use of credit reports is increasingly being seen as a civil rights issue. See: http://www.csmonitor.com/2007/0118/p01s03-ussc.html?s=t5

An article in the March 18, 2007 Tampa Tribune also examined the use of credit reports, and quoted ESR President Les Rosen. According to the article:

Rosen said credit checks can find out if applicants might have a motive to steal, if they can responsibly handle their own money, or if they will be able to charge hotel rooms or cars on credit cards as part of their job. He said he discourages any credit screening that can’t be tied directly to job performance.
“It’s just an indicator, it shouldn’t be decisive,” he said.

See: http://www.tbo.com/news/money/MGBKOD797ZE.html

It is also important to note that a credit report obtained for employment purposes will not have an applicant’s actual credit score. It is an urban myth that credit scores are used for employment. What that means, however, is that each time a credit report is used an employer is making a judgment call based upon the contents of the report, such as reported debt that is high compared to the potential salary or factors that seem to suggest a lack of responsibility. On the other hand, employers need to keep in mind that information in a credit report may be outdated, incorrect or not job-related. For example, if an applicant has debt or collection issues related to medical bills that may have little to do with their eligibility for a job.

Another aspect of these issues is that the credit bureaus are imposing significant new safeguards and restrictions on who can get credit reports and how they are used. For example, one major bureau now requires background firms that provide credit reports to essentially do a background check on the employers requesting the report to ensure the employer is a legitimate and authorized business with a permissible purpose for obtaining credit reports. In addition to physical site inspections, there are new and additional due diligence steps a background firm must take before providing credit reports, such as verifying bank data, and verifying certain information about the employer.

The bottom-line—there is a growing concern about the use of credit reports for employment purposes with groups that are actively opposing employment credit reports. Employers should approach credit reports with caution, and only use them when there is a clear relationship between information in the report and the job and where the information used is recent, relevant, and accurate.

For more information on credit reports, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.


3. From The Mailroom: Should an Employer Use Facebook or MySpace to Screen Applicants?

Here is a question from an employer from a national webinar on hiring given by ESR President Les Rosen:

Question: Should an employer utilize social networking sites to screen potential applicants, such as Facebook or MySpace. What about Internet searches using search engines?

ESR Response: Many employers have discovered what appears to be a treasure trove on the Internet when it comes to recruiting and hiring. By using search engines and social networking sites, recruiters are often able to source candidate for positions. In addition, there are many stories about employers using the Internet to pre-screen applicants. One employer tells the story of recruiting for a high profile consulting firm. The recruiter ran the applicant’s phone number on a search engine, only to discover that the applicant had a business on the side—an “adult”” service of a mature nature complete with revealing photos. That particular candidate was not hired.

There are some things to consider however using the Internet for screening:

  1. The fist problem is often referred to as “TMI” or “too much information.” What if an Internet search revealed prohibited information, such as ethnicity, national origin, sexual orientation, religious preference, or other factors that cannot be considered for employment?
  2. Another issue is that the search of Facebook or MySpace may contain a photo, revealing personal characteristics or physical problems. This can raise questions of discrimination as well.
  3. Privacy is also a concern. There is an assumption that just because something is online, it is fair game for any use. However, sites such as Facebook or MySpace have “terms of use policies” that appear to limit the use of such sites to personal social networking. A Facebook or MySpace user can argue that they had a reasonable expectation of privacy, in that only others who were interested in social networking would view their materials. That is an issue yet to be decided by courts but can still represent a risk to employers.
  4. Using private behavior for employment decisions can be problematic since some states have statutory protections in place for workers to limit consideration of off-duty conduct.
  5. Finally, how can an employer know for sure the online entry item actually belongs to the applicant and is not a fake or sham?

As a result of the issues, job applicants are well advised to monitor their online identity in the event an employer looks them up. There are even websites dedicated to helping applicants protect themselves. Some schools have even required that employers reveal if they do such online searches as a condition for recruiting at the school.

This is a developing new frontier for employers. Employers may want to think through their policies before doing random web searches. One alternative: get a specific consent from an applicant for an online search, and only do it after a conditional job offer has been made.

For more information, a copy of a national teleseminar conference given by ESR President Les Rosen on the topic can be ordered form Lorman Education Services at http://www.lorman.com/seminars/teleconference.php?product_id=167341&topic=LB


4. ESR Speaking Schedule

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking 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: 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

ESR 2007 Schedule

March 29, 2007–SHRM National Webcast “Background Screening of International Job Applicants.” Free event for members of SHRM. See: http://www.shrm.org/global/webcast/07rosen.asp

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

May 22, 2007 Hayward, CA Avoid Negligent Hiring-Best Practices and Legal Compliance. Southern Alameda County Employer Advisory Council-8:30 am

May 24, 2007–Santa Rosa, CA The Latest Hiring Trends–Safe, Legal and Effective Hiring. Co-sponsored by the HR Matrix and approved for 1.5 units of HRCI credit. Contact ESR for additional details.

May 31, 2007–National Teleconference–“Understanding and Complying with the federal Fair Credit Reporting Act (FCRA).”-Sponsored by the Bureau of National Affairs (BNA)

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.

July 16-18 Orlando, FL “Pre-employment Background checks,” National meeting of the Association of Certified Fraud Examiners (ACFE)

September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

November 12, 2007 Tampa, FL Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator( Intended for background firms and record retrievers ) “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.”

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow)

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)
www.ESRcheck.com

1620 Grant Avenue, Suite 7
Novato, CA 94945
415-898-0044

3Back to Newsletters