Yearly Archives: 2010

Federal Court Rules Unnecessary Repetition of Single Criminal Incident can be Misleading and be the Basis of an Allegation for Punitive Damages Against Background Screening Firm

A case decided by a federal district court demonstrates the need for background screening firms to exercise reasonable procedures for maximum possible accuracy in order to avoid lawsuits for punitive damages. 

In that case, the plaintiff alleged among other things that his background report unnecessarily repeated information about a single criminal incident multiple times, so that the criminal record appeared much more serous then it was.  The case was brought on behalf of not only the plaintiff, but on also on behalf of “the thousands of employment applicants throughout the country who have purportedly been the subject of prejudicial, misleading and inaccurate background reports  performed by Defendant  and sold to employers.”

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Equal Employment Opportunity Commission Issues Final Regulations for Genetic Information Nondiscrimination Act (GINA) Prohibiting Use of Genetic Information in Employment Decisions

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

The U.S. Equal Employment Opportunity Commission (EEOC) has issued final regulations implementing the Title II employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) that prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of such genetic information, according to a press release from EEOC.

Title II of GINA – which took effect on November 21, 2009 – prohibits genetic information discrimination in employment and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act (ADA) of 1990. Congress enacted GINA due to concerns patients would decline to take genetic tests out of fear they could lose their jobs or health insurance if tests revealed adverse information.

Title II of GINA:

  • Prohibits the use of genetic information in employment.
  • Restricts employers from requesting, requiring, or purchasing genetic information.
  • Strictly limits the disclosure of genetic information.

The Act also imposes confidentiality obligations on employers and other covered entities – such as employment agencies, labor unions, and training programs – that possess genetic information. The definition of “Genetic Information” includes information about:

  • An individual’s genetic tests and the genetic tests of an individual’s family members.
  • Information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history) that is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
  • An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual.
  • The genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

The GINA regulations include clarifications and refinements made in response to comments received during the notice and comment period. The final regulations implementing GINA are an effort to ensure that workers, job applicants and employers will have clear guidance concerning the implementation of this new law.

The final regulations also provide:

  • Examples of genetic tests;
  • More fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information;
  • Provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and
  • Describe how GINA applies to genetic information obtained via electronic media, including websites and social network sites.

The Equal Employment Opportunity Commission has also issued question-and-answer documents on the final GINA regulations and ‘Genetic Information Discrimination’ that are available on EEOC’s website at http://www.eeoc.gov/laws/types/genetic.cfm.

The EEOC has also issued a question-and-answer pamphlet for small businesses about Title II of GINA and implemented regulations, ‘Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008,’ which is available at http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm.
 
The EEOC pamphlet for Small Business Owners (SBOs) includes the following questions SBOs may ask:

  • Who must comply with Title II of GINA?
  • Are small businesses covered by Title II of GINA required to comply with the law now?
  • What is “genetic information”?
  • What are examples of tests that would, and would not, be considered genetic tests?
  • Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis, such as certain forms of breast cancer?
  • Are there any situations in which an employer may use genetic information to make employment decisions?
  • Does Title II of GINA prohibit harassment and retaliation?
  • May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?
  • May an employer ask for family medical history as part of a medical examination of a job applicant or employee?
  • Are there any situations in which a small business may obtain genetic information without violating GINA?
  • When is the acquisition of genetic information considered inadvertent?
  • What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?
  • Why do GINA and the final rule include an exception that allows an employer to acquire family medical history as part of the Family and Medical Leave Act (FMLA) certification process, under certain state or local laws that allow employees to take leave to care for a family member, or under certain employer leave policies?
  • When would the exception permitting acquisition of genetic information from sources that are publicly and commercially available apply?
  • May an employer conduct genetic monitoring to see if employees are being affected by harmful substances in the workplace?
  • What does GINA say about whether an employer may acquire genetic information for law enforcement purposes or for human remains identification?
  • What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?
  • Must the warning be provided every time an employer requests health-related information from an employee?
  • What if an employer does not provide a warning like the one the EEOC suggests when it requests health-related information and receives genetic information in response?
  • What are GINA’s rules on confidentiality?
  • What effect does Title II of GINA have on other laws addressing genetic discrimination in employment?
  • What happens when an employee files a charge under GINA?
  • What are the remedies for a violation of GINA Title II?

For more information on the Genetic Information Nondiscrimination Act (GINA) of 2008, visit: http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008.

Employment Screening Resources (ESR) – a background check company that does not use genetic information in background check reports – encourages all employers to read the EEOC pamphlets for a helpful overview of GINA and how it impacts businesses generally, and to also check the ESR News Blog for any updates for this subject and other legal matters. 

For more employment screening information for employers, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.eeoc.gov/eeoc/newsroom/release/11-9-10.cfm / http://www.eeoc.gov/laws/types/genetic.cfm / http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008 / http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm

Department of Homeland Security and U.S. Citizenship and Immigration Services Announce Anti-Fraud Enhancements to E-Verify Employment Verification Program

By Thomas Ahearn, ESR News Blog

Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas have announced the expansion of the E-Verify employment eligibility verification program’s capabilities to include U.S. passport photo matching which will enable E-Verify to automatically check the validity and authenticity of all U.S. passports and passport cards presented for employment verification checks, according to a DHS press release.

Businesses using E-Verify – a free, web-based system that enables employers to electronically verify the employment eligibility of their employees – will now able to verify the identity of new employees who present a U.S passport or passport card for the Employment Eligibility Verification Form I-9 by comparing data with State Department records. Approximately 10 percent of all E-Verify queries currently provide a U.S. passport to establish both identity and employment authorization in order to prove employment eligibility.

“E-Verify is a smart, simple and effective tool that helps employers and businesses throughout the nation maintain a legal workforce,” DHS Secretary Napolitano stated in the press release. “Including U.S. passport photo matching in E-Verify will enhance our ability to detect counterfeit documents and combat fraud.”

E-Verify – operated by DHS in partnership with the Social Security Administration – is currently being used by more than 230,000 employers at more than 800,000 worksites.

Now more than ever, U.S. employers must regularly review their Employment Eligibility Verification Form I-9 compliance practices. Since January 2009, the U.S. Immigration and Customs Enforcement (ICE) – the principal investigative arm of DHS – performed Form I-9 audits on more than 3,200 employers suspected of hiring illegal labor and imposed approximately $50 million in financial sanctions, according to DHS statistics.

These statistics show the Government has focused less on rounding up illegal workers and more on targeting the employers that hire illegal workers. To help maintain Form I-9 compliance and avoid I-9 audits, employers may choose to have a Designated E-Verify Employer Agent assist them in maintaining compliance using E-Verify. Employment Screening Resources (ESR) – a Designated E-Verify Employer Agent – can help employers virtually eliminate I-9 form errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce.

For more information about the E-Verify Electronic Employment Eligibility Verification system, visit http://www.esrcheck.com/formi9.php and read ESR News Blog posts tagged ‘E-verify’ at http://www.esrcheck.com/wordpress/tag/e-verify/.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Source:
http://www.dhs.gov/ynews/releases/pr_1289422305190.shtm

New Security Survey Finds Nearly One-Third of Healthcare Organizations Had At Least One Known Case of Medical Identity Theft

By Thomas Ahearn, ESR News Blog

A new survey released in November on security at healthcare organizations has revealed that nearly one-third of respondents said their healthcare organization had at least one known case of medical identity theft, and that some cases the medical identity theft may never be reported.

According to the 3rd Annual Healthcare Information and Management Systems Society (HIMSS) Security Survey, sponsored by Intel, while approximately two-thirds of respondents reported that their healthcare organization had policies and procedures in place addressing security breaches, almost one-third of respondents (31 percent) reported that their healthcare organization had at least one known case of medical identity theft.

Overall, the HIMSS Survey – which interviewed 272 Information Technology (IT) and security professionals at hospitals and medical practices – found that medical practices lagged behind hospitals in nearly every measure of healthcare IT implementation and security. For example:

  • Only 17 percent of respondents working for a medical practice were likely to report a security breach such as medical identity theft at their healthcare organization compared to 38 percent of respondents working for a hospital organization.
  • One-third of medical practices reported they did not conduct a risk analysis.

For the survey, ‘medical identity theft’ was identified as “the use of an individual’s identity-specific information such as name, date of birth, social security number, insurance information, etc. without the individuals’ knowledge or consent to obtain medical services or goods. It may also extend to cases where an individual’s beneficiary information is used to submit false claims in such a manner that an individual’s medical record or insurance standing is corrupted, potentially impacting patient care.”

The 3rd Annual HIMSS Security Survey, sponsored by Intel and supported by the Medical Group Management Association (MGMA), reports the opinions of IT and security professionals from U.S. healthcare provider organizations on issues surrounding the tools and policies in place to secure electronic patient data at healthcare organizations from security breaches such as medical identity theft.

For more information about identity theft, read the Employment Screening Resources (ESR) News Blog stories tagged ‘identity theft’ at http://www.esrcheck.com/wordpress/tag/identity-theft/.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Source:
http://www.himss.org/content/files/2010_HIMSS_SecuritySurvey.pdf

Saginaw County MI Ready to Ban the Box Questioning Job Applicants about Criminal Pasts on Job Applications

By Thomas Ahearn, ESR News Blog

Saginaw County, Michigan appears poised to join the growing “Ban the Box” movement by voting to remove questions – and the box to be checked when answering – regarding criminal pasts of job applicants on county government employment applications.

As reported in stories on mlive.com, the Saginaw County Board of Commissioners Labor Relations Subcommittee voted to remove questions concerning an applicant’s criminal background history from Saginaw County government job applications, though the panel also determined that the county would still be able to conduct criminal background checks on job applicants after an interview and before a final job offer is made.

The move to “ban the box” and strike questions about criminal charges from government job applications won’t take effect unless the Board of Commissioners votes to go along with the recommendation. If the Board of Commissioners follows the Labor Relation Subcommittee’s endorsement, the county would also eliminate a question asking if a job applicant faces pending felony charges.

As reported previously on the ESR News Blog, an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. More recently, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications because of new legislation that took effect November 4, 2010 prohibiting employers from asking questions on initial written job applications about criminal offender record information that includes criminal charges, arrests, and incarceration.

For more information, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Sources:
http://www.mlive.com/news/saginaw/index.ssf/2010/11/saginaw_county_panel_votes_to.html
http://www.mlive.com/news/saginaw/index.ssf/2010/11/ban_the_box_advocate_disappoin.html
http://www.esrcheck.com/wordpress/2010/11/03/esr-news-alert-massachusetts-cori-reform-law-prohibits-employers-from-asking-about-criminal-convictions-on-initial-job-applications-effective-november-4-2010/
http://www.esrcheck.com/wordpress/2010/08/17/more-cities-ban-the-box-asking-about-criminal-records-on-job-applications/

Ohio Governor Issues Executive Order Prohibiting Use of Public Funds for Practice of Offshore Outsourcing Known as Offshoring

By Thomas Ahearn, ESR News Blog

Ohio Governor Ted Strickland has issued an executive order that prohibits the expenditure of public funds for services provided offshore and beyond the boundaries of the United States and its territories – a practice known as Offshore Outsourcing or “Offshoring” – a move that is a reaction to public outcry after a El Salvadoran call center was used for Ohio’s appliance rebate program, according to a report on Cleveland.com.

A press release on the Office of the Governor website at Governor.Ohio.gov reveals that the state’s Department of Development awarded a $357,300 contract to a Texas-based service provider in March 2010 to assist with the agency’s implementation of the $11 million federal stimulus-funded appliance rebate program which rewarded consumers with federal stimulus dollars when they bought energy-efficient appliances.

Despite state procurement requirements designed to restrict service providers from using public funds for offshore labor – in particular, an Ohio Department of Administrative Services (DAS) directive that requires agencies to ask potential vendors to list all locations where the services will be performed – the contract was awarded to a company that practiced “offshoring” and used offshore labor.

The company in Texas never told state officials in Ohio it would use a foreign call center, and the state did not require the information with bids. State officials learned about the call center from an Ohio resident who asked a call center employee where the operation was located, according to the press release.

“Ohio’s policy has been – and must continue to be – that public funds should not be spent on services provided offshore,” Strickland states in the Executive Order.  “Throughout my Administration, procurement procedures have been in place that restrict the purchase of offshore services.”

In June 2008, Strickland signed an executive order (E.O. 2008-12S) that implemented Think Ohio First practices promoting economic development by maximizing the use of Ohio businesses when agencies conduct purchases. 

The full text of the governor’s Executive Order 2010-09S “Banning the Expenditure of Public Funds for Offshore Services” appears in the press release:

  • 1. Ohio’s Economic Vitality Necessitates Constant Vigilance in State Job Creation Efforts.  State officials and employees must at all times remain passionately focused on initiatives that will create and retain jobs in the United States in general and in Ohio, in particular, and must do so especially during Ohio’s continuing efforts to recover from the recent global recession.
  • 2. No Public Funds Should be Spent on Services Provided Offshore.  Allowing public funds to pay for offshore services undermines economic development objectives and any such offshore services carry unacceptable quality and security risks. a. The Purchase of Offshore Services with Public Funds Undermines Economic Development and Other Job Creation and Retention Objectives.  The expenditure of public funds for services provided offshore deprives Ohioans and other Americans critical employment opportunities.  It also undermines efforts to attract businesses to Ohio and retain them in Ohio, initiatives in which the State has invested heavily. b. The Purchase of Offshore Services Has Unacceptable Business Consequences.   The use of offshore service providers could pose unacceptable data security, and thus privacy and identity theft risks.  There are pervasive service delivery problems with offshore providers, including dissatisfaction with the quality of their services and with the fact that services are being provided offshore.  It is difficult and expensive to detect illegal activity and contract violations and to pursue legal recourse for poor performance or data security violations.  The State’s use of offshore service providers ill-serves the people of Ohio who are the primary consumers of the services provided by the State.
  • 3. Ohio’s Policy Has Been – and Must Continue To Be – That Public Funds Should Not Be Spent on Services Provided Offshore. Throughout my Administration, procurement procedures have been in place that restrict the purchase of offshore services.  Despite these requirements, federal stimulus funds were recently used to purchase services from a domestic company which ultimately provided some of those services offshore.  This incident was unacceptable and has caused me, through this Order, to redouble my commitment to ensure that public funds are not expended for offshore services.
  • 4. Additional Steps Will Ensure that Public Funds Are Not Spent on Services Provided Offshore.  In order to ensure that the State of Ohio makes no expenditures for services provided offshore, I hereby order the following: a. No Cabinet Agency, Board or Commission (Executive Agency) shall enter into any contract which uses any funds within its control to purchase services which will be provided outside the United States.  This Order applies to all funds in the custody of an Executive Agency, be they from state, federal, philanthropic or private sources.  It applies to all purchases of service made directly by an Executive Agency and services provided by sub-contractors of those providing services purchased by an Executive Agency. b. This Executive Order will be personally provided, by the Director, Chair or other chief executive official of each Executive Agency, to the Chief Procurement Officer or other individual at that entity responsible for contracts for services. c. The Department of Administrative Services, through Ohio’s Chief Procurement Officer (OCPO), shall have in place, by August 31, 2010, procedures to ensure all of the following: i. All agency procurement officers, or the person with equivalent duties at each Executive Agency (APOs), have standard language in all Executive Agency contracts which: (a) Reflect this Order’s prohibition on the purchase of offshore services. (b) Require service providers or prospective service providers to: (i) Affirm that they understand and will abide by the requirements of this Order. (ii) Disclose the location(s) where all services will be performed by any contractor or subcontractor. (iii) Disclose the locations(s) where any state data associated with any of the services they are providing, or seek to provide, will be accessed, tested, maintained, backed-up or stored. (iv) Disclose any shift in the location of any services being provided by the contractor or any subcontractor. (v) Disclose the principal location of business for the contractor and all subcontractors who are supplying services to the state under the proposed contract. ii. All APOs are ensuring that all quotations, statements of work, and other such proposals for services affirm this Order’s prohibition on the purchase of offshore services and include all of this Order’s disclosure requirements. (a) Any such proposal for services lacking the affirmation and disclosure requirements of this Order will not be considered. (b) Any such proposal where the performance of services is proposed to be provided at a location outside the United States by the contractor or any sub-contractor, will not be considered. iii. All procurement manuals, directives, policies, and procedures reflect the requirements of this Order. iv. All APOs have adequate training which addresses the terms of this Order.
  • 5. Exceptions.  Nothing in this Order is intended to contradict any state or federal law.  In addition, this Order does not apply to: a. Services necessary to support the efforts of the Department of Development Global Markets Division to attract jobs and business to the State of Ohio, including incidental services for the support of trade missions, payment of international staff, and services necessary for the operation of international offices. b. Academic, instructional, educational, research or other services necessary to support the international missions of Ohio’s public colleges and universities.
  • 6. I signed this Executive Order on August 6, 2010 in Columbus, Ohio and it will not expire unless rescinded.                                    

            Ted Strickland, Governor

Banning the practice of offshoring where public funds are concerned – like the governor of Ohio issuing an executive order prohibiting use of public funds for outsourcing – may seem like a no brainer to many, but according to a blog on The Economic Populist the use of taxpayer dollars to offshore outsource jobs happens every day, from food stamp and unemployment support to large software design projects.

The Economic Populist blog also notes that as a result of the State awarding a stimulus contract to support the appliance rebate program to a contractor that practiced offshoring, workers in El Salvador were able to come into contact with the personal and sensitive financial data – also known as Personally Identifiable Information (PII) – of people from Ohio.

The controversial practice of “offshoring” has come to the attention of other states as well. As reported earlier on the ESR News Blog, California Governor Arnold Schwarzenegger recently signed into law California Senate Bill 909 (SB 909), which appears to be the first law in the nation that addresses the issue of personal information being sent offshore outside the United States or its territories.

SB 909 amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address where a consumer “may find information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

While SB 909 does not prohibit offshoring when it comes to background checks, the law will require a disclosure in the privacy statement of the background check firm’s website, as well as a link to that privacy statement.

Employment Screening Resources (ESR) does not offshore information contained in background check reports and is a member of Concerned CRAs, a group of Consumer Reporting Agencies (CRAs) that oppose the practice of offshoring information of U.S. citizens outside the country.

For more information, visit the ESR News Blog articles tagged “offshoring” at http://www.esrcheck.com/wordpress/tag/offshoring/.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Sources:
http://governor.ohio.gov/Default.aspx?tabid=1753
http://www.cleveland.com/business/index.ssf/2010/08/no_public_funds_for_outsourcin.html
http://www.economicpopulist.org/content/ohio-bans-use-public-funds-offshore-outsourcing
http://www.concernedcras.com/no_offshoring.htm
http://www.esrcheck.com/wordpress/2010/09/30/hot-off-the-press-new-california-law-on-background-checks-appears-to-be-first-law-in-u-s-to-regulate-offshoring-of-personal-data-overseas/

October 2010 Jobs Report Better than Expected with Private Sector Employment Rising 159,000 and Increase of 151,000 Jobs Overall

By Thomas Ahearn, ESR News Blog

The U.S. economy added 151,000 jobs overall in October 2010, and private-sector payroll employment rose by 159,000 over the month, the U.S. Bureau of Labor Statistics (BLS) reported.

According to the BLS report – “THE EMPLOYMENT SITUATION – OCTOBER 2010” – nonfarm payroll employment increased by 151,000 in October and has risen by 874,000 since December 2009.

In addition, private-sector payroll employment rose by 159,000 over the month, the best figures since April 2010, and employment in the private sector has risen by 1.1 million since December 2009.

However, despite the fact that jobs were added to the economy, the unemployment rate remained unchanged at 9.6 percent in October – and has been essentially unchanged since May 2010 – while the number of unemployed persons was also little changed at 14.8 million during the month.

The total nonfarm payroll employment increased by 151,000 in October, reflecting job gains in mining and a number of service-providing industries. More specifically:

  • Mining: Employment in Mining continued to trend up with a gain of 8,000 job over the month, and has added 88,000 jobs since October 2009.
  • Professional and business services: Employment in temporary help services increased by 35,000 in October, and has added 451,000 jobs since September 2009. Employment in computer systems design and related services increased by 8,000 in October and has risen by 53,000 since June 2009.
  • Health care: Health care services continued to add jobs with a gain of 24,000 in October, which was in line with the average increase of 20,000 over the prior 12 months.
  • Retail trade: Retail trade employment rose by 28,000 in October, including an increase of 6,000 in automobile dealers and 5,000 in electronics and appliance stores. Overall, employment in retail trade has expanded by 128,000 since December 2009.
  • Food and Services: The food services industry has added 143,000 jobs since December 2009, but within Leisure and Hospitality, a job loss of 26,000 jobs in arts, entertainment, and recreation in October offset a gain of 24,000 jobs in food services and drinking places employment.

Elsewhere in the private sector, employment in manufacturing, construction, wholesale trade, transportation, information, and financial activities showed little change in October.

Government employment overall was also little changed in October, although employment in local government – excluding education – decreased by 14,000 over the month and has fallen by 123,000 over the past 12 months.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Source:
http://www.bls.gov/news.release/pdf/empsit.pdf

Bill Restricting New Jersey Employers from Requiring Employment Credit Checks on Job Applicants Moves Closer to Law

By Thomas Ahearn, ESR News Blog

A bill that would restrict employers in New Jersey from requiring credit checks as a condition of employment is advancing toward law, according to a news release from the Assembly Democrats web site.

Bill A-3238 – sponsored by Assemblyman Ruben J. Ramos Jr. and Assemblywoman Cleopatra Tucker – prohibits an employer in New Jersey from requiring a credit check on a current or prospective employee as a condition of employment, unless the employer is required to do so by law or reasonably believes an employee has engaged in a specific activity that is financial in nature and constitutes a violation of law.

Under the bill, credit checks would be allowed for:

  • A managerial position which involves setting the financial direction or control of the business;
  • A position which involves access to customers’, employees’, or employers’ personal belongings or financial information, other than information customarily provided in a retail transaction;
  • A position which involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts or involves leases of real property;
  • A position which provides an expense account for travel; or
  • A law enforcement officer for a law enforcement agency in this state.

The bill also prohibits an employer from requiring a prospective employee to waive or limit any protection granted under the bill as a condition of applying for or receiving an offer of employment.

In addition, the bill provides for the imposition of civil penalties in an amount not to exceed $5,000 for the first violation, and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.

As reported earlier on the ESR News Blog, credit checks for employment purposes have become a controversial subject as job seekers look for work in a tough economy are caught in a “Catch-22” situation where they have bad credit because they cannot get a job but cannot get a job because they have bad credit.

As a result, the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC held a public Commission meeting on October 20 to hear testimony on the growing use of credit histories of job applicants as selection criteria during employment background screening to see if the practice is discriminatory in any way. More information on the EEOC meeting may be found at http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm.

For more information about employment credit checks, visit ESR News Blog section on ‘Credit Reports’ at http://www.esrcheck.com/wordpress/tag/credit-reports/.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Sources:
http://www.assemblydems.com/Article.asp?ArticleID=3252
http://www.njleg.state.nj.us/2010/Bills/A3500/3238_I1.HTM
http://www.eeoc.gov/eeoc/newsroom/release/10-20-10b.cfm
http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

ESR NEWS ALERT: Massachusetts CORI Reform Law Prohibits Employers from Asking About Criminal Convictions on Initial Job Applications Effective November 4, 2010

By Thomas Ahearn, ESR News Blog

Starting November 4, 2010, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications because of new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

As previously reported on the ESR News Blog, the new law overhauls the Commonwealth’s Criminal Offender Record Information (CORI) law and contains several provisions that will affect the way employers use the criminal histories of prospective and current employees and impact Massachusetts employers performing criminal background checks on job applicants and employees.

While the new law does not prevent employers from obtaining criminal histories of job applicants or employees contained in the CORI database, under the CORI reform law those records will no longer contain:

  • Felony convictions closed for more than ten years, whether convictions occurred more than ten years ago or individuals were released more than ten years ago.
  • Misdemeanor convictions closed for more than five years.

In addition, the new law also includes the following provisions:

  • Employers that decide not to hire applicants or take adverse actions based on criminal histories in CORI reports must first give applicants copies of the reports.
  • Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.
  • Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.

After the initial application of the CORI reform law provision which restricts questions by employers about criminal history on initial written job applications takes effect on November 4, 2010, employers that continue to ask questions on initial written applications about felony or misdemeanor convictions after that date may be subject to liability under the new law, experts warn.

For more information, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Sources:
http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256
http://www.esrcheck.com/wordpress/2010/10/05/new-massachusetts-cori-reform-law-prohibits-employers-from-asking-about-criminal-convictions-on-initial-job-applications-starting-november-4/

SHRM Tells EEOC Credit Checks Are Legitimate Background Screening Tool at Recent Public Meeting

By Thomas Ahearn, ESR News Blog

According to a news story on the Society for Human Resource Management (SHRM) website – “SHRM: Credit Checks Are Legitimate Screening Tool” – a representative for SHRM told the U.S. Equal Employment Opportunity Commission (EEOC) during a public hearing on October 20, 2010 that the federal government should not eliminate an employer’s use of credit histories to help make decisions about job candidates.

The representative, in prepared comments, said that “SHRM believes there is a compelling public interest in enabling our nation’s employers – whether that employer is in the government or the private sector – to assess the skills, abilities, and work habits of potential hires.” In addition, the representative said credit history is one of many factors – including education, experience and certifications – that employers use “to narrow that applicant pool to those who are most qualified.”

The SHRM representative pointed out Human Resources (HR) typically conducts a background check on the job finalist or group of finalists before making a job offer, and that background check might include checking personal references, criminal history, and credit history depending on the employer and the position to be filled.
 
Citing the Fair Credit Reporting Act (FCRA) of 1970 and the Civil Rights Act of 1964, the representative said SHRM believes “employees already have significant federal protection for the misuse of background checks.”
 
Recent SHRM Research Department data on the use of employer background screening practices was also referenced at the meeting. Among the findings:

  • Just 13 percent of employers surveyed conducted credit checks on all job candidates while another 47 percent consider credit history for candidates of select jobs.
  • Employers generally conducted credit checks only for certain positions, including jobs of financial or fiduciary responsibilities (91 percent), senior executive positions (46 percent) and positions with access to confidential employee information (34 percent).
  • Among employers that used credit checks, 57 percent initiated them only after making a contingent job offer and 30 percent initiated them after the job interview.
  • Four out of 10 employers surveyed did not conduct credit checks.

The EEOC heard public comment from SHRM and others to determine the extent of the practice of using credit checks during the background screening of job candidates, the effectiveness of its intended purpose, and its potential impact on different populations.

More information about the EEOC public meeting can be found at: http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

Employment Screening Resources (ESR) literally wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Source:
http://www.shrm.org/about/news/Pages/LegitimateScreeningTool.aspx?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+shrm%2Fnews%2Fhr+(SHRM+Online%3A+HR+News)