A recent article in Aviation Week focused on airlines and background checks quotes employment Screening Resources on the importance of screening for the aviation and airline industry.    

The article is, “The Art of Background Checks,” by George C. Larson and can be found at: http://www.aviationweek.com/aw/generic/story_generic.jsp?channel=bca&id=news/bca1009p3.xml&headline=The%20Art%20of%20Background%20Checks 

The article cites information provided by ESR: 

Les Rosen, president and CEO of Employment Screening Resources, a number-one-rated firm in one survey of the field, says, “Basically, background screening in all industries underwent a dramatic increase after 9/11.” Rosen also notes an increase in media attention to child molestation and a growth since the 1970s in verdicts that find negligent hiring practices and subsequent liability.

“If you hire a person who is unsafe, unfit, unqualified or dishonest, you may be found negligent,” he says. Further, any employers filling high-risk occupations have a “duty of care in hiring to prevent foreseeable harm the higher the risk, the higher the duty. We consider aviation high-risk.”

As for the cost of background screening, it varies with the company doing it and the depth of investigation required by the employer. Rosen applies this rule of thumb: “An average background check is less than you pay an employee by 2 p.m. of their first day on the job.” Some aviation jobs may run higher, to about $150 to $200 to conduct a background screening for a pilot applicant.

Rosen questions whether operators would use the Internet to hire a babysitter and finds the idea of using it for blind searches equally preposterous, and the comparisons don’t stop there: “Searching on the Internet is like going to a junkyard to buy an airplane. The databases are not complete or up-to-date . . . . Databases are a lead generator, not a check.”

By contrast, he says ESR starts with a Social Security trace, which, together with work history, can lead them to relevant criminal records, of which there are roughly 300 counties keeping such records. Rural areas and smaller communities are less likely to have them.

“The privacy pendulum has swung in favor of applicants,” he says. “The basic reason for such a search is to seek to learn how people conducted themselves in public life. All the results are matters of public record. Nothing secret, nothing undercover. If a check comes out negative, applicants have the right to review the report if they think there’s a mistake. If so, we must reinvestigate. But the real issue for employers is if the background check is bad [ly performed], they can be sitting ducks for litigation. Juries ask, ‘Did the employer exercise due diligence?’ “

ESR performs aviation record searches under the FAA criteria described in PRIA, including an FAA records check covering medical certificate issue date, class and limitations, airman certificate level, category, class and type, and finally, any closed FAA enforcement actions resulting in a violation that was not overturned. They include five years’ worth of employer records, including drug and alcohol issues if applicable and professional performance as a pilot. The National Driver Registry provides data on revocation, suspension and DUI information. Some carriers under 121, 125 and 135 ask for criminal checks, credit reports and 10-year employment histories. Screeners are alert for gaps in both residential address histories and employment. Credit reports may be requested of more aviation employees because many are likely to exercise purchasing authority and use company credit cards.

Organizations that work to rehabilitate people with criminal convictions naturally defend the right of members of their communities to a second chance, and LeBlanc, Rosen and Nadell are sensitive to those issues. They’re careful to point out that they never advise an employer not to hire someone but simply present the results of their background screening and leave it up to the employer to decide.

In addition, identity theft has created a pool of victims that draws flags, yet the people are completely innocent of wrongdoing.

Rosen points to ConcernedCRAs.com as an affiliation of about 120 member companies who pledge to adhere to best practices. No sensitive personal information is ever sent offshore. So-called “national” criminal records databases without safeguards for accuracy must be employed responsibly. 

ESR has substantial experience in aviation and airlines employment screening background checks as well as pilot checks.  See:  http://www.esrcheck.com/pria_aviation_airlines.php

A recent article in the SHRM 2008 Staffing Management Library underscores the need to screen even temporary hires.  Although many employers have well thought-out programs for their regular employees, temporary employees from staffing firms, 1099 workers or vendors pose similar risks.  The article explained why screening temporary employees is critical, and offers suggestions on how a firm can protect itself.

The article also quotes ESR President Lester S. Rosen: 

“Even if you have a person on a short-term assignment, you’re exposed,” added attorney Lester S. Rosen, president and CEO of the Novato, Calif.-based firm Employment Screening Resources. “They have the keys to the kingdom. Once they’re inside your building, they have access to your files and have the potential to do great harm.”

Rosen said that while staffing vendors “have traditionally not engaged in a great deal of screening because it slows down the placement time and adds to the cost,” they need to understand that they have “a huge risk” if they send unscreened employees to a workplace.

“They have to realize that every placement they make is potentially a game of Russian Roulette that can put them out of business,” he explained. “If you’re a staffing vendor, it only takes one bad hire to lose your reputation, lose a client and [potentially to] get sued.”

And even though an extended worker may be getting a paycheck from the staffing vendor, under “co-employment” law, employers may still be at risk of a negligent hiring suit if something goes wrong.

“If [temporary employees] cause a hostile workplace, hurt a member of the public or attack a co-worker, arguably employers are just as liable as they would be if this were a full-time, regular employee,” Rosen said.

The fact that the staffing vendor said it did background checks may not be much of a defense for an employer if the check was inadequate or ineffective. For this reason, it pays to do adequate due diligence to head off any potential lawsuits down the road.

After all, Rosen said, “Even the CIA will, every so often, hire a spy or a crook.”

The article discusses the need to evaluate the risks involved in utilizing an extended workforce and to develop an appropriate screening program.  The screening may be performed by the same firm that checks new applicants.  If done by the staffing vendor’s firm, then the employer can require that the same protocols be used that it uses internally. 

For a full copy of the article, see http://www.shrm.org/ema/library_published/nonIC/CMS_024438.asp#TopOfPage

Searching for criminal records is much more complicated than it appears on the surface.  Contrary to popular belief, there is no central database available to most private employers to instantly find a person’s criminal record at one touch.  The FBI database is only available to employers that are legally authorized to submit fingerprints, the readouts can be complex and there is even the possibility of errors in those records.  With some 3200 counties in the US, screening firms have developed tools and techniques to identify potentially relevant counties to search, and nearly any county in America can be researched on site within 24-36 hours. The best practices for employers are to identify counties associated with the applicant and to search those counties by going to the courthouse. The way relevant counties are identified is first by using a tool called a social security trace that uses millions of records which show what addresses a social security number is related to. In addition, some employers also search counties where a person has worked or gone to school.  Although such searches are very accurate, as with anything depending on human beings, there is still some small margin of error possible. 

Even assuming a record is found, a professional screening firm must determine if there are sufficient identifiers to associate the record to the applicant, and even if the criminal record belongs to the applicant, numerous states have laws that restrict what can be reported. Many states do not allow the use of arrest records, and even if a state allows it, there may be EEOC considerations. Even if a screening firm can report a conviction, the employer needs to consider whether the use of the record is discriminatory.  An employer should not automatically reject an applicant with a criminal record, unless there is a business justification, taking into account such things as the nature and gravity of the act, the nature of the job and the age of the crime. 

Employers should be careful in the use of commercial databases that are advertised to search millions of records with instant results.  Those 30 second searches are NOT a substitute for a real criminal check at a courthouse and probably would not demonstrate due diligence if used all by themselves. These databases are assembled from a hodgepodge of various sources that are willing to make their data public or to sell data, such as incarceration systems, state repositories or individual counties.  These databases do not cover all states and may not be up-to-date, accurate or complete.  Certain states do not provide date of birth, which is another reason a criminal record may not come up in a database. This can all lead to both false negative and false positive results from databases. A false positive means a person is branded a criminal who is not, and a false negative means a person with a criminal record is falsely ‘cleared.’ 

The commercially available instant criminal reports are best used as a research tool only by a professional screening firm to locate other places to search.  Since they cover such a wide area, they can be very valuable in locating records that a county by county search can miss.  However, these instant databases are also a potential source of litigation against employers and screening firms, with applicants filing lawsuits for being unfairly tarnished as criminal, or victims claiming that the employer did not exercise due diligence.  Even if there is a database ‘hit,’ under the federal Fair Credit Reporting Act, the background screening firm must either reconfirm the details at the actual courthouse to ensure accuracy, or send a contemporaneous notice to the applicant at the same time, so they know that they are the subject of negative public records.  California is one state where any database ‘hit’ must be re-confirmed at the courthouse and ESR believes it is a best practice to reconfirm all database hits at he courthouse to guard against unfairly labeling someone as a criminal where their case has been dismissed, or they are the victim of identity theft or just happen to have the same last name as a perosn with a criminal record. 

Some states offer access to the state police or central state court databases.  Again, it takes a background screening expert to understand the value of such information on a state by state basis.  There is also a difference between state court searches and federal courts. 

All of this is just the tip of the iceberg.  For more details, see: http://www.esrcheck.com/services/services_detail.php

As ESR has noted in numerous presentations on the use of social networking sites, such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions. (more…)

ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring.  The full report is online at:  http://www.esrcheck.com/2009-trends-backgroundscreening-industry.php

1. Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries.  In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.
    
2. Privacy and Accuracy:  Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.  A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse.  A new organization called Concerned CRA’s (www.concernedcras.com) has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.
3. Second Chance for Ex-Offenders: Unless as a society we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records.  The State of New York, for example, to deal with this issue directly, has passed new â second chance” laws that became effective this year. The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.
4. Consumer Protection Litigation:  As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation in 2009.  These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.
5. Impact of the Recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment or education history.
6. Data Security, Data Breaches, and Off-shoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection.  Closely related is the continuing issue of employers and screening firms sending confidential consumer data offshore for processing to places such as India for cost savings.  Once data leaves the United States, it is beyond U.S. privacy protections.  Concerned CRR’s (www.concernedcras.com) has also taken a stance against off-shoring such data without notification to consumers.  The use of home-operator networks also presents an unnecessary risk to privacy as well.  There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.
    
7. Accreditation by the NAPBS: The non-profit trade organization for the Screening Industry, the National Association of Professional Background Screeners (www.napbs.com) has announced the introduction of an accreditation program.  NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the accreditation process this year.
8. Social Network Sites:  The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates.  The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures.  Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy.  Stay tuned as more courts give their opinions on this issue.
9. Integration of Services:  With the advent of Web 2.0, it is likely that technology will play an even bigger role in the coming year.  Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.
10. International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.

ESR will place its Third Annual Top Ten Trends in January, 2010.