Yearly Archives: 2007

ESR Newsletter and Legal Update

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

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February 2007 Vol. 7, No. 2

Employment Screening Resources (ESR) Newsletter and Legal Update


1. The Use of Employment Credit Reports Seen As a Civil Rights Issue

2. FAQ: Can Employers Copy Documents Used for I-9 Verifications?

3. From The Mailroom: How Far Back Should an Employer Check Criminal Records

4. New ESR Services: I-9 Authorization, Integrity Checks and Vendor Checks


1. The Use of Employment Credit Reports Seen As a Civil Rights Issue

According to a news article appearing in the Christian Science Monitor on January 18, 2007, the use of credit reports for employment decisions is becoming seen as a civil rights issue. The article, which quoted ESR President Lester Rosen on the use of credit reports, centered on a job applicant at Harvard University who was not given a position after a credit report was run.

According to the article, the applicant had worked as a temporary employee processing alumni donations including credit card payments. When she was offered a permanent position, the university ran a credit report and based upon the results, decided not to follow-through on the employment opportunity.

The article reviewed a growing trend among civil rights advocates who view the use of credit reports in employment as discriminatory. The article cited studies showing that certain protected groups had lower credit scores, meaning their use as a factor in employment could result in disparate treatment against members of protected groups.

In discussing why employers utilize credit reports, the article noted that:

“Employers should look at credit only for jobs where the information is relevant, says Lester Rosen, president of Employment Screening Resources, a national background screening firm in California. He cites a few examples:

  • For jobs handling money, people may have the motive to steal if their debts surpass their salary.
  • For jobs requiring travel, bad credit could bar applicants from renting cars or buying tickets.
  • For jobs managing money, the report can offer some clues on how applicants manage their own.

Particularly in that last scenario, he cautions employers to be circumspect since blemishes might be errors or beyond the person’s control, such as sudden medical expenses. Legally, employers must receive written permission from applicants to do a credit check, and must give those denied because of credit a chance to respond.

Mr. Rosen defends the careful consideration of credit in the hiring process. ‘If Harvard hired a person and did not use a credit report and the person embezzled, what would the headline be?’ he asks.”

The criticism of the use of credit reports seemed to stem from the use of credit scores. However, it is critical that employment credit reports do not contain credit scores. According to the article, Harvard in fact did not have a numerical score. What employers are looking at are specific facts contained in the credit reports demonstrating behavior or risks.

The bottom-line: credit reports in employment remains a sensitive issue. There has only been one study relating credit reports to employment, and although it was a very small study, it suggested there was no relationship between credit reports and employment performance.

Since employment credit reports do not contain any sort of scoring, the use of a credit report for employment becomes a judgment call each time. One of the problems with that is that a credit report can contain what appears to be derogatory information that is incorrect, or has no relationship to the ability to successfully perform the job. That is why ESR urges employers who utilize credit reports to use them with extreme caution and to ensure that any use of a credit report for employment is based upon data that is recent, relevant, accurate and fair.

See: http://www.csmonitor.com/2007/0118/p01s03-ussc.html?s=t5


2. FAQ: Can Employers Copy Documents Used for I-9 Verifications?

Employers have an obligation to verify, through a specific process, the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not. Part of the process requires an employer to review certain documents within 72 hours.

A Frequently Asked Question is if employers can copy the forms they review. The Department of Homeland Security (DHS) has answered that question and many other FAQ’s in a form called “The Form I-9 Process in a Nutshell.”

See: http://www.uscis.gov/files/article/EIB102.pdf

According to the DHS:

An employer may, but is not required to, copy a document (front and back) presented by an individual solely for the purpose of complying with the Form I-9 verification requirements. If such a copy is made, it must be retained with the Form I-9. The copying of any such document and the retention of the copy does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of Form I-9 documentation, then the same should be done for all employees, and the copies should be attached to the related Form I-9. Employers should not copy the documents only of individuals of certain national origin or citizenship status. To do so may constitute unlawful discrimination under section 274B of the Immigration and Nationality Act.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act to further deter illegal immigration into the United States. The law created the Basic Pilot Program, a voluntary program that allowed employers to verify the employment eligibility of prospective employees through the Social Security Administration and Immigration and Naturalization Service.

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. For more information on ESR’s I-9 services, including a Paperless I-9 service, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.


3. From The Mailroom: How Far Back Should an Employer Check Criminal Records

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

Question: How far back do you recommend going on a background check? I’ve been told 7 years is as long as you are legally allowed. I wanted to know what is considered the standard. If we use 7 years, have we done due diligence?

ESR Response: Many employers use a “seven year search” as their standard. That has evolved primarily due to the fact that 12 states have some form of a seven year rule, and the federal Fair Credit Reporting Act (FCRA) had such a prohibition on employees making less than $75,000 a year until it was revised in November, 1998. The federal law was changed so that a screening firm could report a criminal conviction regardless of age. Even though the federal law, and many states, allows researchers to go back more than seven years, because of the lack of a workable national rule, the industry standard has become a seven-year search.

There are some things to consider however;

First, for states such as California that have a seven year limit, that limit only applies to what a background firm can report. Employers who go to the courthouse themselves are not subject to such limits.

Second, for employers in those states that do not have a seven year limit, then going back just seven years can leave those employers exposed to unnecessary risk.

Third, the seven years can include criminal matters that occurred beyond the seven years under certain circumstances. The seven-year period means that a person is free of custody for a period of seven years. For example, a crime that occurred more than seven years ago may be reportable if any custody time was served within the past seven years.

Fourth, keep in mind that the older the conviction, the less relevant it may be. The EEOC guidelines do not permit an employer to automatically deny employment based upon a criminal matter, but to consider the nature and gravity of the act, the nature of the job and the age of the offense.

Fifth, make sure that your background screening provider is using court researchers that go back on criminal records as far back as the records are available. In other words, while checking the records, the criminal researcher should not simply go back just seven years, because they could be missing records. It can be a big mistake to simply ignore older convictions because they are reportable in a number of states. Even in most seven year states, there is an exception if a person makes over a certain amount of money.

Finally, where it gets particularly complicated is how to proceed if the screening involves two states. For example, assume that an applicant from California, where there is a seven year restriction, has a criminal matter that is ten years old and therefore could not be reported in California. However, assume the job is at a facility in Ohio where there is no such rule. Does the employer and screening firm follow California law or Ohio law? That becomes a very complex issue that will be addressed in future articles.

The whole issue of reporting criminal records once again underscores that background screening is a professional, knowledge-based service and not merely data retrieval, and it is important to make sure your screening firm really understands the rules and does not merely apply mechanical standards.

Have questions about the legal aspects of background checks for safe hiring? Send them to Jared Callahan at jcallahan@esrcheck.com


4. New ESR Services: I-9 Authorization, Integrity Checks and Vendor Checks

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

February 22, 2007 Santa Clara, CA “Avoid Negligent Hiring–Best Practices and Legal Compliance.” Santa Clara EAC, Biltmore Hotel

April 3, 2007 Sacramento, CA “Everything You Wanted to Know About Pre-employment Screening” Lorman Seminars

April 23/24, 2007 New Orleans, LA “Avoid Negligent Hiring-Best Practices and Legal Compliance” and “Extreme Caution Advised: Dealing with Federal and State Laws Regulating Pre-employment Screening and Background Checks.” 2007 SHRM Staffing Management Conference

June 8, 2007 Pasadena, CA “Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars

June 10-13 Boston, MA PRIMA Conference (details to follow)

June 25/26, 2007 Las Vegas, NV “Negligent Hiring Mock Trial” and “Legal and Effective Reference Checking and Education Verification.” SHRM 59th Annual National Conference and Exposition.

Fall, 2007 Bangalore, India International Pre-employment Screening Conference (details to follow)

Contact ESR for further details.

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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ESR Newsletter and Legal Update

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

(Reading time: Less than 5 minutes)
January 2007 Vol. 7, No. 1

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New Trend – Local Governments Assisting Re-entry Of Ex-offenders Into The Workforce By Not Asking About Past Criminal Convictions On Employment Applications

2. New US-European Passenger Agreement Demonstrates Importance Of Privacy Considerations For HR Professionals

3. New Study Effecting Use of Credit Reports: Medical Debt Paid For By Credit Cards

4. ESR Announces 2007 Speaking Schedule


1. New Trend – Local Governments Assisting Re-entry Of Ex-offenders Into The Workforce By Not Asking About Past Criminal Convictions Employment On Applications

A number of city governments have instituted a new policy to help ex-offenders re-enter the workforce by taking out questions about past criminal conduct from the employment application. Cities such as Boston, Chicago, Minneapolis, San Francisco and St. Paul have taken the lead in trying to get ex-offenders into the workforce by not asking questions about past offenses in the initial application process that would limit ex-offenders from applying in the first place. Other jurisdictions, such as Indianapolis, Los Angeles, Newark and Philadelphia are considering such legislation. In Boston, the law has gone further and applies to an estimated 50,000 vendors who do business with the city.

The logic behind the law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches out criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. The law is designed to address the problems faced by ex-offenders who are unable to obtain the employment necessary to become tax paying and law-abiding citizens, and to reduce the high recidivism rate of ex-offenders. It can cost taxpayers over $30,000 per year to incarcerate an individual, so society has a vested interest in having ex-offenders succeed.

These laws do not mean that convicted child molesters will be getting jobs as playground supervisors. The cities and counties passing such laws allow for background checks on finalists, consistent with the EEOC guidelines on the permissible use of criminal records for employment.


2. New US-European Passenger Agreement Demonstrates Importance Of Privacy Considerations For HR Professionals

As a result of the events of September 11, 2001, US authorities have been negotiating with the European Union on obtaining Passenger Name Records (or PNR) regarding passengers on flights from Europe to the US. The Court of Justice of the European Community struck down an agreement on data transfer, reached in 2004, in May 2006 due to concerns over compliance with European privacy rules. A new agreement had not been reached by September 30, 2006; the date the European Community indicated the old agreement would expire, leaving European airlines having to choose between violating either EU privacy law or US law.

A new agreement was reached on October 5, 2006 and published in the federal Register on January 4, 2007, along with a letter from the Department of Homeland Security setting forth certain assurances (called undertakings) on how the US would protect the privacy of the passenger data. The agreement by its term only lasts until July 31, 2007, which means that negotiations will be continuing.

The negotiations attempted to resolve some of the differences in the positions between the US and Europe, such as how long data can be retained, the nature and the extent of data being transferred, whether the US can pull the data or if the data must be pushed after US requests, how the data will be shared between Homeland Security and other agencies in the US, and the protection given to the data by the US.

For human resources professionals, the ongoing issue of data privacy and protection for airline passenger records highlights several critical points. First, the dispute is a reminder that the European Union views the United States as a country that generally does not provide adequate safeguards for personal data. In addition, the dispute over PNR illustrates just how seriously E.U. data protection authorities take the issue of international transfers of personal data. If E.U. data protection authorities are insisting upon privacy protections even in the context of the war on terrorism and protecting the safety of airplanes, then EU officials can be expected to also take seriously violations of E.U. data protection laws in the “normal course of business.”

For these reasons, every HR department, which relies upon transfers of personnel information from the E.U. to the U.S., even for the most routine forms of human resources administration, should address the data protection compliance issues raised by those transfers. This means that a multi-national company cannot lawfully transfer employees’ “personal data” (which includes not only employee health and compensation information, but even an employee’s work location and e-mail address) from the E.U. to the U.S. without taking steps which will demonstrate to E.U. data protection authorities that the information will be adequately protected once it arrives in the U.S.

The principal options currently available include certification to the U.S.-E.U. Safe Harbor agreement, data transfer contracts, and binding corporate rules. The Safe Harbor program is maintained by the Department of Commerce and provides a framework for US firms to certify that it provides adequate privacy protection of personal data of individuals from EU countries. Each of these options has advantages and disadvantages, which should be carefully scrutinized. Because the E.U. has among the most stringent data protection laws in the world, compliance with those laws will have the added advantage of satisfying the data protection requirements of other countries with similar, or somewhat less stringent, data protection laws, such as Australia, Canada, and Japan.

Employment Screening Resources (ESR) was the third screening firm in the US to become Safe Harbor certified. For more information on ESR’s international services, contact Jared Callahan at jcallahan@ESRcheck.com or call at 415-898-0044, ext. 240.


3. New Study Effecting Use of Credit Reports: Medical Debt Paid For By Credit Cards

A study released on January 16, 2007, concerning the increased use of credit card debt to pay for medical expenses, underscores why employers should approach credit reports with caution when hiring.

The report documented how low and middle income American households who had medical expenses carried much higher credit card debt to cover co-payments, uncovered procedures and other health care costs. According to the authors of the report, the result is that many Americans are piling up debt on high interest credit cards, and risking their financial security due to illness.

One result of this trend can be that credit reports may be adversely affected by showing a high debt. However, employers should take into consideration that such debt may have no relationship to potential job performance. Employers are well advised to only utilize credit reports when it is directly relevant to a particular job, such as a position that handles cash or assets, and even then, to be careful to ensure that any information is rationally related to an employment decision.

One item of good news for Americans with high credit card debt due to health issues is that credit scores are not contained in employment credit reports and are not used for employment decisions.

The report is entitled, “Borrowing to Stay Healthy: How Credit Card Debt is Related to Medical Expenses.” To view the full report, visit www.demos.org or www.accessproject.org


4. ESR Announces 2007 Speaking Schedule

See 2007 Schedule Below:

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

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

Features of this course include:

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

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

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

More information is available at: 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

January 26, 2007 Scottsdale, AZ “Pre-employment Screening,” 2006 Annual Conference for the Consumer Data Industry Association (CDIA)

January 29, 2007 National Teleconference on Screening Applicants Using Social Networking Sites: Legal or Liability? Lorman Seminars

January 30, 2007 Stockton, CA “Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars

February 8, 2007 National Teleseminar
href=”http://65.83.34.19/nextrain/Event.aspx?EventID=365&TitleID=182″ target=”_blank”> Safe Hiring Audit-Implementing and Measuring Due Diligence
.” Presented by BizSummits. See www.bizsummits.com

February 22, 2007 Santa Clara, CA “Avoid Negligent Hiring–Best Practices and Legal Compliance.” Santa Clara EAC, Biltmore Hotel

April 3, 2007 Sacramento, CA “Everything You Wanted to Know About Pre-employment Screening” Lorman Seminars

April 23/24, 2007 New Orleans, LA “Avoid Negligent Hiring-Best Practices and Legal Compliance” and “Extreme Caution Advised: Dealing with Federal and State Laws Regulating Pre-employment Screening and Background Checks.” 2007 SHRM Staffing Management Conference

June 8, 2007 Pasadena, CA “Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars

June 10-13 Boston, MA PRIMA Conference (details to follow)

June 25/26, 2007 Las Vegas, NV “Negligent Hiring Mock Trial” and “Legal and Effective Reference Checking and Education Verification.” SHRM 59th Annual National Conference and Exposition.

Fall, 2007 Bangalore, India International Pre-employment Screening Conference (details to follow)

Contact ESR for further details.

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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