ESR NEWS: Employment Screening Information for Employers

By Thomas Ahearn, ESR Staff Writer

A recent article in the Denver Business Journal reveals details about a little-known bill that may have a big impact on the business community in Colorado with regards to employer liability from negligent hiring.

House Bill 10-1023 “Employer Liability Negligent Hiring” – recently signed into law by Colorado Governor Bill Ritter – prohibits the criminal history of an employee from being part of a lawsuit against the employee’s business unless that criminal history has direct applicability to the legal action.

According to the article, the bill was sponsored by Rep. Mark Waller (R-Colorado Springs) after he learned that businesses often do not hire applicants with criminal backgrounds no matter how long the ex-convicts have been clean or how unrelated their criminal histories are to the jobs for which they applied.

Since employers fear being sued for negligent hiring if workers they hire with criminal backgrounds do anything wrong, Waller wanted to help protect businesses from negligent hiring lawsuits while also giving ex-convicts a chance to find work. The resulting bill prohibits information concerning the criminal history of an employee from being introduced in civil actions if:

• The employee’s record is sealed;
• The employee received a pardon;
• The criminal history isn’t related to the facts of the case, or;
• The employee’s record is from an arrest or charge that did not result in a criminal conviction.

However, businesses still would be held liable for negligent hiring if they hired employees with criminal backgrounds unsuitable for their jobs, the example given the article being a person convicted of breaking and entering hired to install alarms in homes who then subsequently robs one or more of those homes. As usual, employers must use common sense in these matters.

With new laws like the one recently passed in Colorado, employers will want as much information as possible upon which to base their hiring decisions. Criminal background checks are a safe and effective way to reveal the criminal pasts of applicants and to help employers make future choices about which workers they want to hire.

For more information on criminal background checks, other methods of a safe hiring program, and the latest legal updates regarding negligent hiring, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.bizjournals.com/denver/blog/capitol_business/2010/03/new_law_gives_ex-cons_a_better_chance_at_a_job.html

http://www.leg.state.co.us/CLICS/CLICS2010A/csl.nsf/fsbillcont3/33D8A2927B432FBA872576A80026AFC2?Open&file=1023_01.pdf

By Jared Callahan, Employment Screening Resources

Employment Screening Resources (ESR), a leading national employment screening firm based in the San Francisco area, announced today that free tools available at the ESR Resources Center to help employers hire safe, honest, and qualified applicants.

The ESR Resources Center provides employers with “All Things Background Checks.”   Employers can find among other tools:

• A free web based interview guide generator to help employers build printed interview forms for any position. The tool allows employers to select from generic interview questions, or to create their own questions, and then create a printed form that can be saved or modified in order to conduct structured and consistent interviews.
• The tools necessary for an employer to determine if a school is legitimate or a diploma mill.
• An internal safe hiring audit that employers can use to measure the effectiveness of their hiring programs.
• A summary of the letters issued by the Federal Trade Commission (FTC) that interprets federal law controlling background checks. 

The features are part of a commitment to provide a centralized location for employers to keep current on the critical task of hiring a workforce that is safe, qualified, and honest.  The site also allows Employers, Human Resources Leaders, Security Professionals, Recruiters, and Job Applicants to locate resources on employee screening in one place and to keep current on evolving issues affecting hiring.

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 and industry leading technology, service, accuracy, and turnaround.

“Background screening is a critical part of the process in identifying the best employees and with these tools on the ESR Resource Center, employers are empowered to select the best candidates,” commented Jared Callahan, Director of Marketing, and a national speaker on topics related to safe hiring.  “We are very pleased to have the opportunity to provide these free tools to employers and consumers.” 

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.  For additional information, contact Jared Callahan by calling 415-898-0044 or emailing jcallahan@ESRcheck.com.

By Thomas Ahearn, ESR Staff Writer

The Department of Homeland Security (DHS) has announced three new initiatives to strengthen the efficiency and accuracy of the E-Verify employment eligibility verification system, including a new agreement with the Department of Justice (DOJ) that will make it easier to investigate E-Verify misuse and discrimination by participating employers.

Under the DHS and Justice Department agreement, both agencies will share information about potential abuses of the E-Verify system that employers are supposed to use only once they have hired an employee and not as a screening tool.  To ensure that E-Verify is used fairly by employers, the initiative will streamline the adjudication process to take action against employers violating civil rights laws, while also protecting the individuals authorized to work in the U.S. from national origin or citizenship-status discrimination.

E-Verify — a free, Web-based system that enhances the paper-based I-9 form — is operated in partnership by U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA) and allows employers to electronically verify the employment eligibility of newly-hired employees against information contained in government databases. More than 192,000 employers nationwide currently use E-Verify, and the system has processed more than six million queries since October of 2009.

While E-Verify participation is voluntary for most employers, the federal government requires its contractors to use the system and several states have passed laws requiring the use of E-Verify for state contractors and private employers. Those who wish to avoid potential cases of E-Verify misuse or discrimination need to maintain compliant with new DHS initiatives, which also include an informational telephone hotline for workers and new training videos focusing on E-Verify employee rights and employer responsibilities.

Because the I-9 form is an important part of a comprehensive safe hiring strategy, employers using E-Verify may choose a third-party provider to maintain compliance. Employment Screening Resources (ESR), an authorized E-Verify Designated Agent, can help employers virtually eliminate SSA mismatch letters, improve the accuracy of wage and tax reporting, protect jobs for authorized workers, and help maintain a legal workforce. For more information, please visit http://www.esrcheck.com/formi9.php.

Source: http://www.dhs.gov/ynews/releases/pr_1268843939770.shtm

By Les Rosen, Employment Screening Resources

A California Court of Appeals decision filed March 23, 2010 held that a background screening firm has a constitutional right to report that an applicant has appeared on the Megan’s Law website (MLW) as a registered sex offender.  The Court further held that under the California law, the prohibition on the use of such information for employment does not apply where there is a person at risk. 

In Mendoza vs. ADP Screening and Selection Services, Inc (CA2/8  B214653 3/23/10)(Certified for Publication) the California Court of Appeals, Second Appellate District heard an appeal from a job applicant who was denied employment apparently on the basis that he was listed on the MLW.  He sued the background screening firm alleging, among other things, that it was illegal to report his sexual offender status due to the California law that prohibited the use of such information for employment decisions.    

The background screening firm defended on the basis that the California Anti-SLAPP statute protected its free speech.  An Anti-SLAPP law seeks to protect parties from frivolous lawsuits when they exercise their First Amendment right to free speech.  The trial court upheld the background screening firm’s position. 

On appeal, the Court held that just because a background screening firm charges a fee for the service when it accesses, compilies, and republishes information, it does not deny a screening firm its constitutional free speech protections.  The Court noted that:  

We agree with the trial court that (the screening firm) made its requisite prima facie showing that, in publishing information disclosed on the MLW, it engaged in constitutionally protected speech on a subject of public interest. Indeed, the Legislature, in enacting the statutory scheme establishing the MLW, issued several findings which openly expressed the public’s strong interest in the dissemination of information regarding registered sex offenders.

 The Court further noted that there is a strong public need to create a safe workplace and that issuing employment screening reports is protected by the constitution.  Per the opinion:  

We are also swayed by the public interest in safe workplaces, and in the liability which may attach to employers who fail to investigate prospective employees where prudence justifies such an investigation. Thus, as a foundational, broad-based proposition, we conclude that providing employment-screening reports is a constitutionally founded, protected activity within the meaning of the anti-SLAPP statute.

 The Court also discussed the California law on sexual offender registration as part of the legal analysis as to whether the screening firm had a constitutional right to report the information.  The Court noted that the relevant portion of Penal Code Section 290.46 provides that: 

“(l)(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

“(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited: ……

         “(E) Employment.”The Court rejected the argument that the law prohibited the use of information from the Megan’s Law website when there was a person at risk just because it was related to an employment decision.  The Court ruled essentially that the “at risk” part was independent and could be provided regardless of whether it was intended for an employment decision.   

 

The Court also noted that the background screening firm did not “use” the information.  It was used by the employer and only provided by the screening firm.   The Court indicated that: 

Although the legislative history in the record and the parties’ briefs is sparse, we are satisfied that the MLW statute is not intended to create liability for damages on the part of employment-screening businesses who access, compile, and republish information disclosed on the MLW, and that the statutory liability created by the MLW statute should be limited to employers who “use” information disclosed on the MLW as a basis for an employment decision.

 This of course still leaves open the issue of what is meant by the term “person at risk,” and when can an employer utilize such information.  As noted in a previous blog by Employment Screening Resources: 

Until a court provides a definition (of person at risk), employers are well advised to apply a common-sense approach by looking at risk factors associated with the nature of the job. For example, there is a widespread industry agreement that vulnerable individuals are at risk, such as the young, the aged, the infirmed, or the physically or mentally disabled. In addition, people inside their own home are likely to be at greater risk, since it is harder to obtain help, so home workers may be considered a population that works with people at risk.  Another category is workers that operate under some sort of badge or color of authority or who wears a uniform.  In that situation, a person may let their guard down.  Until a court makes a clear decision, employers should make an effort to determine if there is a good faith belief that it is reasonably foreseeable that a member of a group at risk could be negatively impacted if a sexual offender was hired.  

Of course, if the underlying criminal record is discovered and otherwise meets the many complicated rules governing the reporting and use of criminal records in California, then the “group at risk” analysis is not needed, and the employer handles it like any other criminal record. 

 http://www.esrcheck.com/wordpress/719/california-sex-offender-search-employment-screening-background-check

 The case can be found at: http://www.courtinfo.ca.gov/opinions/documents/B214653.PDF

Please note that Employment Screening Resources does not offer or provide legal advice or opinions, and the above material is provided for educational purposes only. This particular case has additional issue, and anyone with questions should consult their attorney. 

By Thomas Ahearn, ESR Staff Writer

A series of recent surveys from the Society for Human Resource Management (SHRM) reveals that when it comes to reference background checks and criminal background checks, approximately three out of four U.S. businesses perform these two types of background checks as part of their pre-employment screening programs.

According to surveys conducted in November and December of 2009 and comprised from a sample of over 400 randomly selected Human Resources professionals from SHRM’s membership, 76 percent of organizations conducted reference background checks for all job candidates, while 73 percent of organizations conducted criminal background checks for all job candidates by reviewing consumer reports of candidates.

Surprisingly, despite recent controversy surrounding the use of credit background checks in pre-employment screening, the survey found that only 13 percent of organizations performed credit background checks on all candidates, while 40 percent did not conduct any credit background checks and 47 percent performed them on selected job candidates.

As for which job categories that organizations chose to conduct background checks on, the survey revealed candidates for positions with fiduciary and financial responsibility (handling cash, banking, and accounting) led in both credit background checks (91 percent) and criminal background checks (78 percent), while 76% of job candidates who would have access to confidential employee information had reference background checks conducted that included verifying information provided by the job applicant or communicating with people regarding the job applicant such as former co-workers.

In general, organizations responding to the surveys from SHRM indicated that the following policies and procedures were in place for conducting reference, credit, and/or criminal background checks on job candidates as of 2009:

• 95% had notified candidates that any false or intentionally misleading information provided in the application process was grounds for retracting job offers;
• 91% had policies that no criminal background checks were conducted without signed consent from the candidates;
• 89% had policies that only designated personnel would have access to reference, credit, and/or criminal background check information;
• 79% had written policies for employees to follow regarding conducting reference background checks; and
•  78% had standardized questions for the person conducting the reference background check on behalf of the organization, and written policies for employees to follow regarding conducting criminal background checks.

When asked if the number of reference, credit, and/or criminal background checks that their organizations conducted on job applicants increased, decreased, or remained the same as a result of the economic downturn, approximately three out of four respondents replied that the number had remained the same for reference background checks (74 percent), criminal background checks (73 percent), and credit background checks (71 percent). 

For more information on how employers can conduct an effective background check program, contact Employment Screening Resources (ESR).

Sources:

http://www.shrm.org/Research/SurveyFindings/Articles/Pages/ConductingReferenceBackgroundChecks.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckingGeneral.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundChecking.aspx

By Jim Crockett, Employment Screening Resources

As mentioned in earlier blogs by Employment Screening Resources (ESR), diploma mills and degree mills have created fake accreditation agencies to try to make fake degrees legitimate. According to one source, the following represents a listing of 30- plus agencies that employers may want to look at in more detail. This list is reprinted with the kind permission of http://www.geteducated.com which is responsible for its content:    

Here is a list of 30-plus agencies that claim to accredit a variety of online and distance learning college degree programs.

NONE of these accrediting agencies are recognized as college accreditors in the U.S. by the Council on Higher Education Accreditation or the U.S. Department of Education. As such, colleges claiming “accreditation” by these agencies are not widely accepted as valid providers of higher education online and should be approached with great caution if online college credibility is important to you.

• Accreditation Council for Distance Education (ACTDE)
• Accreditation Panel for Online Colleges and Universities (APTEC)
• Accrediting Commission International (ACI)
• American Accrediting Association of Theological Institutions
• American Council of Private Colleges and Universities
• American Association of Drugless Practitioners (ADP)
• Association of Accredited Bible Schools
• Association of Distance Learning Programs (ADLP)
• Association of Private Colleges and Universities
• Association for Online Academic Accreditation
• Association for Online Excellence
• Association for Online Academic Excellence
• Board of Online Universities Accreditation (BOUA)
• Council for Distance Education
• Council of Online Higher Education
• Central States Consortium of Colleges & Schools
• International Commission for Higher Education
• International Accreditation Agency for Online Universities (IAAOU)
• International Accreditation Association for Online Education (IAAFOE)
• International Accreditation Organization (IAO)
• International Education Ministry Accreditation Association
• International Online Education Accrediting Board (IOEAB)
• National Academy of Higher Education
• National Board of Education (NBOE)
• National College Accreditation Council
• National Commission of Accredited Schools
• National Distance Learning Accreditation Council (NDLAC)
• New Millenium Accrediting Partnership for Educators Worldwide
• Organization for Online Learning Accreditation (OKOLA)
• Transworld Accrediting Commission Intl. (TAC)
• Universal Council for Online Education Accreditation (UCOEA)
• United Nations Council
• United States Distance Education & Training Council of Nevada (NOTE: A similarly titled agency, the Distance Education & Training Council (DETC), of Washington, D.C.—http://www.detc.org—is a VALID and RECOGNIZED online learning accreditation agency)
• World Association for Online Education
• World Association of Universities and Colleges (WAUC)
• World Online Education Accrediting Commission (WOEAC)
• World-Wide Accreditation Commission of Christian Educational Institutions (WWAC)

 

Source: GetEducated.com, a consumer advocacy group that reviews, rates
and ranks screened, accredited online universities: 
http://www.geteducated.com/online-degrees-credibility-employer-perception/204-unrecognized-fake-and-dubious-online-college-accrediting-agencies/

More information on this topic is available at:  http://en.wikipedia.org/wiki/List_of_unrecognized_accreditation_associations_of_higher_learning

By Les Rosen, Employment Screening Resources

From the Employment Screening Resources mailbox:  We had an applicant for a job that did not require a degree.  However, the applicant listed a degree but it turns out he in fact never graduated and never earned the degree.   Can we consider that even though the job did not require a diploma?

Answer:   Generally speaking, if an applicant in dishonest in the hiring process, there is evidence to suggest that person may well be dishonest once in the job.  The dishonesty can be either making a  material omission or a material misstatement of  fact.  Dishonesty is typically a valid reason not to hire. The applicant put down a fake qualification on the application for the employer to consider, and the employer may well take that as act of dishonestly.  The applicant can hardly complain that they are the subject of discrimination,  since dishonest people are not a protected class.

In addition, even though a degree was not required, the  applicant obviously listed the degree to gain an advantage in the hiring process.

 However, in this situation, the applicant was dishonest about something that was not a requirement of the job.  Although an employer may well still be on solid ground in not hiring someone  that was dishonest, going forward, a employer may consider two changes to their application to ensure there is no gray area when it comes to being honest in the employment application.

First, an employer should consider including the following language on the employment application where questions about education is asked:

Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision.

This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job.

Secondly, an employer may consider adding the following type of language to their  application if not already there:

The information provided by the applicant is true and correct, and that any misstatements or omission of material facts in the application or the hiring process may result in discontinuing of the hiring process or termination of employment, no matter when discovered.

This language in general protects an employer if an applicant is dishonest, even if the information comes to light after the person is hired.

Often times, the key to a successful hire is a well written employment application.  For more information on this  and other topics, see: The Safe Hiring Manaul.

By Jared Callahan, Employment Screening Resources

Employment Screening Resources, a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting a national webinar on Tuesday, March 23, 2010  on Screening Applicants Using Social Networking Sites: Legal or Liability?

The webinar is sponsored by Lorman Education Services, providing concise, accurate and timely information seminars to keep businesses, and the professionals who serve them, current in the rapidly changing regulatory environment. The webinar information is at: http://www.lorman.com/teleconference/teleconference.php?product_id=208126 

This teleconference will review this emerging area of employment law, examining the pros and cons of employers utilizing such tools and the legal landscape. Topics will cover how and why employers and recruiters utilize these sites. It will then cover a number of legal implications, such as problems with employers obtaining information they should not have and privacy issues. Finally, it will examine approaches that employers, recruiters and applicants may consider.

“The use of the Internet and social networking sites has become a critical topic for employers in selecting the best candidates,” commented Rosen. “This Lorman seminar will help employers exercise due diligence and recognize and try to minimize their risks when using online tools.”

Mr. Rosen, who is also an attorney, is a nationally recognized expert on employment screening background checks.  He is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Mr. Rosen is the author of the first comprehensive book on employment screening, “The Safe Hiring Manual Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” He also wrote, “The Safe Hiring Audit.”

Mr. Rosen’s speaking appearances have included numerous national and statewide conferences.  He has testified in the California, Florida,  and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as its first co-chairman in 2004.

More information about Employment Screening Resources can be found at www.ESRcheck.com