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.

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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 The information was about nine years out of date!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 That law was repealed in 1998 so that under federal law, convictions can be reported without limitation.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

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