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 â€œremove” feature at the end of the newsletter and you will not receive any future newsletters.
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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
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 â€œreasonable procedure.â€ 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 courtâ€™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. â€œCyber Slammingâ€–Another Reason to be Careful â€œGooglingâ€ a Candidate
In the March, 2007 newsletter, ESR discussed why employers should approach the use of the Internet with caution when it comes to â€œdo it yourselfâ€ 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, â€œcyber slamming.â€ 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
Employers who select background firms often ask about how a background firm trains their staff members. In fact, large employers who issue formal â€œRequests for Proposalsâ€ 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 firstname.lastname@example.org
4. ESR Speaking Schedule and Educational Opportunities
ESR is pleased to announce new services that are available to US employers:
- 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 individualâ€™s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
- In-depth Searches and Litigation Support ESR has introduced a new service, an â€œIntegrity Check,â€ 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
- 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! â€“ 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, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,â€ 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 email@example.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)
1620 Grant Avenue, Suite 7
Novato, CA 94945