ESR NEWS: Employment Screening Information for Employers

By Jared Callahan, Employment Screening Resources

Employment Screening Resources (ESR), a leading national employment screening firm, announced completion of its integration with Taleo Business Editionâ„¢. This new integration provides a simplified, paperless technology solution to perform legally compliant employment background checks.

Taleo Business Editionâ„¢ is the leading on-demand talent management solution for companies with up to 5,000 employees. Taleo Business Edition helps small to mid-size organizations around the world find, develop and retain top talent by simplifying recruiting, performance and compensation management with unmatched flexibility.

The integration of Taleo Business Edition and Employment Screening Resources allows employers to initiate a completely paperless background checks with the click of a mouse, allowing for the fastest possible turn-around time with the least amount of effort. Featuring single sign-on and the ability to view report status in real-time, employers, HR departments and recruiters can leverage the Taleo solution with the latest legally-compliant background screening technology.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally. The firm specializes in legal compliance expertise, as well as industry-leading technology, service, accuracy and turn-around.

“Through the Taleo Business Edition integration, Employment Screening Resources can provide the most advanced and legally compliant screening solutions to our mutual clients,” commented Jared Callahan, Director of Marketing for ESR, and a national speaker on topics related to safe hiring. “Employers can harness this advanced technology and no longer need to handle physical pieces of paper, go to different software systems or worry about legal compliance.”

About Employment Screening Resources: Employment Screening Resources (ESR), is a safe hiring partner and provides REAL background checks, not cheap database shortcuts or off-shoring that endangers privacy. ESR specializes in legal compliance and provides industry leading technology, service, accuracy and turnaround. Contact: Jared Callahan for additional information at 415-898-0044 or by email jcallahan@ESRcheck.com.

By Les Rosen, Employment Screening Resources

From the mailbox:  Does Minnesota have any laws that prevent an employer from obtaining or using criminal records? 

Answer:  A number of states have very specific state rules about obtaining and using criminal records.  Employment Screening Resources  (ESR) maintains it’s own proprietary 50 state guide that is available to ESR clients. 

Minnesota passed a law in 2009 that gave empowers some protection when hiring someone with a criminal record.  Essentially, the law provides that information about the criminal history of an employee or past employee cannot be used against an employer in a civil action if:

1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general;

(2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or

(3) the record is of an arrest or charge that did not result in a criminal conviction.

See:  https://www.revisor.mn.gov/statutes/?id=181.981 

If an employer, for example, was sued for negligent hiring, this statue potentially affords some additional protection if the terms of the law are satisfied.  Such a statue can encourage employers to hire applicants who otherwise may have had difficulty obtaining employment.

The Minnesota Department of Human Rights has also given guidance on hiring and the use of criminal records.  Minnesota is among a number of states with Human Rights agencies that have set forth guidelines for legal and non-discriminatory hiring practices.  According to the agency:

While not prohibiting the inquiry, courts have held that barring job applicants because of an arrest and/or criminal conviction record may have a statistically significant, adverse impact on members of racial or ethnic minority groups. An employer’s hiring policy regarding criminal convictions may be held to be discriminatory when, absent a bona fide occupational qualification, a minority-group member’s criminal conviction record is an absolute bar to employment, provided that a statistically significant adverse impact is shown within the protected class.

Within this context, the recency and job-relatedness of any conviction must be considered by the employer before making an adverse hiring decision relating to criminal record. It is generally advisable that employers inform job applicants, at the time of application, that these mitigating factors will be considered; an employer’s failure to do so may have a chilling effect on job applicants pursuing a job with that employer, which may prove to be discriminatory.

http://www.humanrights.state.mn.us/employers/hiring.html 

Another Minnesota rules deals with minor offense for which jail time cannot be imposed, or instances where an arrest did not result in a conviction,  According to Minnesota law: 

The following criminal records shall not be used, distributed, or disseminated by the state of Minnesota, its agents or political subdivisions in connection with any application for public employment nor in connection with an application for a license:

(1) Records of arrest not followed by a valid conviction.

(2) Convictions which have been, pursuant to law, annulled or expunged.

(3) Misdemeanor convictions for which no jail sentence can be imposed.

https://www.revisor.mn.gov/statutes/?id=364.04

Nothing in this blog is intended as legal advice and is not intended be a complete discussion of all laws that may apply.  Employers should contact thier attorney for specific advice on these laws may apply to them.   However, it does underscore once again that background screening and hiring is a highly regulated area that requires the assistance of professionals, and not merely data vending companies.  Becasue ESR receives so many questions about state laws, hiring  and background checks, ESR will blogging on certain aspects of all 50 states during the rest of 2010.

By Jared Callahan, Employment Screening Resources

An article in MSNBC examining the use of credit reports and employment quoted Employment Screening Resources President Lester Rosen on how credit reports are used in screening.  

The article concerned the current controversy over the use of credit reports and the suggestion that in a recession, that credit reports can harm job applicants.  See:  http://www.msnbc.msn.com/id/35512038/ns/business-eye_on_the_economy/ 

ESR was quoted in two areas: 

And if a new worker is to have access to large amounts of company cash or financial systems, it’s only prudent for a hiring manager to find out if the applicant has a pile of unpaid debts, said Lester S. Rosen, CEO of ESRcheck, which screens job candidates for companies.

“If an employer hires an embezzler and did not do a credit report in a sensitive position and the employer was then sued for negligent hiring, the argument would then be: ‘How stupid were you for not to running a credit report?’” he said.

The article also indicated that: 

Though many employers run credit checks on some applicants, relatively few are turned down for a job because of bad credit, according to Rosen of ESRcheck.
“It’s only when they’re down to a finalist or one or two finalists that they’ll run a background check,” he said. “And in the real world, what we see is that it really takes something pretty horrendous in the credit report to reverse a decision that they’re vested in.”

However, the article also clarified that “credit scores” are NOT used for employment decisions, which is common myth.   Unfortunately, many critics of the use of employment credit reports cannot seem to comprehend that credit scores are NOT used for employment.  Although there can be many opinions, it is more helpful if the discussion is based upon facts, as opposed to assumptions, or miss-information.  

ESR has consistently recommend that credit reports be reserved for positions where there is  a clear business justification, and to keep in mind that credit reports can contain information that is old, incorrect, or not relevant to the job.  

For more information on credit reports and employment, view a White Paper prepared jointly by LexisNexis and Employment Screening Resources called:  The Use of Credit Reports in Employment Background Screening –an Overview for Job Applicants http://www.esrcheck.com/docs/credit_report_whitepaper.pdf

(Coming shortly:  article on proposed restrictions in the state of Oregon on credit reports)

By Les Rosen, Employment Screening Resources

In a recent state court case that concerned a fact pattern familiar to background screening specialist, a local office of a national staffing firm supplied an employer with a bookkeeper that turned out to have criminal record for felony fraud and who misrepresented her educational background  The worker embezzled $138,350.   However, since the employer did not specify that the staffing firm should do a background check, and the staffing firm never claimed that they would do one, the employer’s claims were dismissed. 

In that case, an employer requested the locally licensed office of a national staffing firm to fill a position of secretary/bookkeeper position on a temp-to-hire basis, meaning the worker would start as a temporary worker and the employer had the option to make the position permanent with payment of a fee. 

According to the Court’s opinion, the local office would search and, “provide the names of the best candidates to (employer).  (The staffing firm) did not represent that it would perform a criminal background check on the candidates, and (employer) did not ask that a criminal background check be performed on the candidates. (Employer) did not specify that candidates should not have a history of any felony, fraud, or theft convictions.” 

The worker sent to the employer in fact had a criminal conviction for felony fraud as well as false educational claims. The candidate misrepresented her past, including educational achievements, to the staffing firm, and the staffing firm did not do a background check.  

As it turned out, the worker sent was probably not “the best candidate” as was promised because after the worker became permanent, she started committing embezzlement from the employer in the amount of $138,350. 

The employer sued on the basis that the major national staffing firm was negligent in who they supplied, and made negligent misrepresentation (presumably about the commitment to send a qualified candidate). 

At a hearing for a summary judgment however, the trial court ruled for the major national staffing firm.  The appeals court upheld the ruling noting: 

Foremost, it was undisputed that (staffing firm) did not represent to (employer) that it would verify an employment candidate’s educational and criminal history, and (employer) did not specifically ask (staffing firm) to perform such services. …. (staffing firm) did not have a blanket policy of performing criminal  background checks on every employment candidate, and they did not represent to their employer-clients that they did perform that service. Plaintiffs did not offer any evidence that verifying educational and criminal histories of employment candidates was an industry standard in similar staffing firms. (Employer) admitted he told (staffing firm) he needed someone to answer the phones, get the mail, and take care of general bookkeeping. He also admitted he did not tell (staffing firm)  that (the worker) would be allowed access to signed, blank checks, would be the sole person to review the general ledger, would be handling cash, and would have complete access to his and (employer’s) bank accounts. Furthermore, other than providing (the worker’) name as a potential employment candidate, (employer) admitted that (the staffing firm) had no part in his ultimate hiring decision. 

Staffing firms however should not assume based upon this decision that the failure to perform background checks is always legally defensible.  Even though the staffing firm won the case, given the negative publicity and potential harm to reputation, a background check would have been very cheap by comparison,  At a minimum, clearly specifying the staffing firm’s policy on background checks would also have been a best practice.

Most employers would probably assume that they would not have to specifically request that a staffing professional not send someone convicted of felony fraud to handle their books.   It is almost like saying that a when a person orders food in a restaurant, they need to specify that the food should not be contaminated.  

The employer in this case however, apparently had a lack of internal financial controls.  As the court noted, the embezzler had access to blank checks that were signed, would be the sole person to review the general ledger, would be handling cash, and would have complete access to his and (employer’s) bank accounts.  However, staffing professionals are generally well acquainted with fact the small businesses often cannot afford the type of internal controls needed to prevent embezzlement, which is another reason that staffing firms need to be careful when they place people in sensitive positions.  

The court noted that the plaintiff failed to present evident that staffing firms regularly do background checks.  Employment Screening Resources  is privileged to work with a number of truly outstanding professional staffing firms and recruiters that certainly do perform background checks before placing workers in sensitive positions.  Employers are well advised to ensure that any staffing firm or recruiters they choose conducts appropriate background checks with a qualified background firm.  ESR can recommend staffing firms and recruiters that operate under the highest professional standards and exercise due diligence in whom they place. 

(Note: Employment Screening Resources  has adopted a practice of not indentifying the names of parties to lawsuits unnecessarily in blogs and newsletters, since it does not add anything to the lessons learned, and there can be more to the story.  However, if a reader has a reason to review the actual case and cannot locate it themselves, please contact Jared Callahan at jcallahan@ESRcheck.com or by phone at 415-898-0044.)

By Les Rosen, Employment Screening Resources

In a previous blog, Employment Screening Resources recounted how its president’s own dog, a Border Collie named Gypsy Rose, received a college degree complete with very genuine looking transcripts in 2005  (http://www.esrcheck.com/wordpress/1282/genuine-fake-diplomas-on-the-rise) 

As noted in the blog, “the author’s dog received a very genuine-looking diploma in business administration in 2005 purportedly issued by the University of Arizona through an online diploma-selling service.  (The author picked on the University of Arizona only because a family member was attending Arizona State.  Since the author is a UCLA alumni, the author considered getting his dog a diploma from USC as well, which was also an option.)” 

There have been a number of request to actually view the fake documents.  Keep in mind that the actual diploma is on parchment and the transcripts are on special paper as well. 

Here is the diploma issued, to Gypsy Rose Lee, a Border Collie, in 2005.     http://www.esrcheck.com/docs/fake-diploma.pdf

The accomplishment is all the more impressive since Gypsy Rose had passed away long before she supposed attended college.  Although Border Collies are among the smartest breeds, it is doubtful that she could in fact have received a college degree.  

Here are the fake transcripts.  http://www.esrcheck.com/docs/fake-transcripts.pdf 

She only received a B in US History to 1877, which is disappointing considering how smart Border Collies are. 

For the full story, see:  http://www.esrcheck.com//Fake_Diploma.php

By Thomas Ahearn, ESR Staff Writer

The fatal shootings of three University of Alabama-Huntsville professors during a faculty meeting by another professor reportedly upset about being denied tenure at the school has shined a bright light on the troublesome issue of workplace violence. The tragedy has also raised concerns about how thoroughly background checks should research the past histories of employees. 

In an interview on ABC’s Good Morning America, two step-daughters of one victim questioned how the woman arrested and charged in the shooting deaths – Biology professor Amy Bishop, 42 – could get a job working at the school after reports surfaced about violent incidents in Bishop’s past.

ABC News reported that investigators may re-examine the 1986 shooting death of Bishop’s brother at the hands of Bishop, which was ruled accidental at the time, and also revealed that Bishop was a suspect in a mail bombing attempt on a Harvard Medical School professor in 1993. Investigators told ABC that while investigating the bombing they found a novel on Bishop’s computer describing a scientist who had shot her brother.

After learning about Bishop’s alleged violent past, the step-daughters of one victim told Good Morning America that they hoped the shooting would lead to more thorough background checks for the school’s faculty and staff. They also believed Bishop obtained a list of professors who did not vote in favor of her tenure before the shootings, which left three people injured in addition to the three fatalities. 

“Workplace violence” is loosely defined as threats, assaults, and violent acts – including murder – which occur in, or are related to, the workplace. While there is no one cure-all treatment to eliminate the threat of workplace violence, employers should remain vigilant and closely watch all conditions and events in the workplace in order to ensure the safety and security of employees and customers. 

To help prevent workplace violence, employers may choose to initiate a Safe Hiring Program (SHP) that includes a wide range of tools, techniques, and services to help mitigate the risk of hiring or retaining a potentially dangerous employee. Background checks are considered the cornerstone of an effective SHP.

Protecting workers from workplace violence is an essential reason why employers should conduct pre-employment screening – including extensive and far-reaching background checks – on prospective employees. The goal of a Safe Hiring Program is to ensure that employers follow proper procedures during background checks and pay attention while hiring and retaining workers in order to minimize the potential for workplace violence. 

For more information about workplace violence, background checks, and Safe Hiring Programs, please visit  Employment Screening Resources at:  http://www.esrcheck.com. 

Source: http://abcnews.go.com/GMA/alabama-university-shooting-suspect-amy-bishop-violent-past/story?id=9839348

By Jim Crockett, Employment Screening Resources

A big positive development for employers, and human resources and security professionals is that the national nonprofit trade organization for the screening industry has firmly established itself as the voice of the screening industry, and is fostering higher levels of professionalism. The National Association of Professional Background Screeners (www.NAPBS.com), was established in 2003 to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and foster awareness of issues related to consumer protection and privacy rights within the background screening industry.

One of the big frustrations for employers is how to choose a Background Screening firm. After exhaustive efforts on the part of a great many dedicated screening professionals, NAPBS  is conisdering an accreditation program that would give employers much more confidence in selecting a background screening firm. An accreditation program provides a baseline of professional competency that employers can rely upon. Assuming accreditation comes into being, employers will still need to find a screening firm that fits their needs, but at least such a program will help an employer determine whether a firm meets a certain level of professionalism.

Employment Screening Resources was a founding member of NAPBS, and its president, Lester Rosen, was the chairperson of the steering committee that founded NAPBS and served as its first co-chair.

By Les Rosen, Employment Screening Resources

Even with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks.  These are the seven most commons concerns that employers express:

Is it legal?
Employers have an absolute right to conduct lawful pre-employment screening in order to hire the best-qualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know whom they hire with an applicant’s right of disclosure and privacy. Under that law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated the same. In addition, criminal records should not be used to disqulaify an appliucant automatically.  A qualified screening company will assist an employer with legal compliance issues.

Does it invade privacy? 
No. Employers can find out about only those things that an applicant has done in his “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that is a valid and non-discriminatory predictor of future job performance. To maintain privacy, many background firms have Internet systems with secured Web sites. Employers should also take steps to maintain confidentially within their organization.

Is it cost-effective? 
A pre-employment screening will typically cost less than the cost of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, and not all applicants. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, and money is well spent to avoid problems in the first place.

Does it discourage good applicants?
Employers who engage in screening do not find that good applicants are deterred. Job applicants have a desire to work with qualified and safe co-workers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion. 

Does it delay hiring? 
No. Background screening is normally done in just 48 to 72 hours. Most of the information needed is not stored in databases but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays that are out of anyone’s control, such as previous employers who will not return calls, schools that are closed for vacation, or a court clerk who needs to retrieve a record from storage.

Is it difficult to implement? 
For an overburdened HR, security, or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. A qualified pre-employment screening firm can set up the entire program and provide all the necessary forms in a short period of time. Many firms have Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.

How do we select a service provider?
An employer should look for a professional partner, not just an information vendor selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if a employer were choosing a law firm for legal representation, it would not select the cheapest–it would clearly want to know it is selecting a firm that is competent, experienced, and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal Fair Credit Reporting Act. 

Both employers and applicants have learned that pre-employment screening is an absolute necessity in today’s business world. More importantly, they’ve learned due diligence in hiring is a way to keep firms safe and profitable in these difficult times.