All posts by Les Rosen

Florida Governor Signs Executive Order Requiring State Agencies to Use E-Verify

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

Shortly after being sworn-in, new Florida Governor Rick Scott signed Executive Order No. 11-02 (Verification of Employment Status) that requires state agencies to use the E-verify system to verify legal immigration status of workers and check whether all current and prospective agency employees are legally authorized to work in the United States.

E-Verify is a free, web-based system operated by the U.S. government that enables employers to electronically verify the employment eligibility of employees by comparing data on the Employment Eligibility Verification Form I-9 against records in Department of Homeland Security (DHS) and Social Security Administration (SSA) databases.

As explained in the following excerpt from the executive order signed by the Governor, Executive Order No. 11-02 requires state agencies to use the E-Verify system to verify employment eligibility of state employees and contractors:

  • All agencies under the direction of the Governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system;
  • All agencies under the direction of the Governor to include, as a condition of all state contracts, an express requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of: a.) all persons employed during the contract term by the contractor to perform employment duties within Florida; and b.) All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.
  • Agencies not under the direction of the Governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.

However, as a sign that E-Verify is still not without controversy, Rhode Island’s new Governor Lincoln Chafee signed an Executive Order (also No. 11-02) ‘Terminating Illegal Immigration Control Order’ on his first day in office to rescind a previous order requiring the state and businesses to check the immigration backgrounds of workers using the electronic program E-Verify.

Florida employers that are contractors with state agencies should expect that Florida state agencies will soon take steps to:

  • Amend existing contracts to include the new E-Verify requirement, and
  • Ensure that the E-Verify requirement is part of future contracts.

Florida employers should investigate enrolling in E-Verify to ensure all employees with responsibility for Form I-9 maintenance and E-Verify administration undergo thorough training in Form I-9 and E-Verify compliance. Florida employers may also choose to have a Designated E-Verify Employer Agent help them maintain Form I-9 and E-Verify compliance.

Employment Screening Resources (ESR) – a leading provider of background checks accredited by National Association of Professional Background Screeners (NAPBS) – is a Designated E-Verify Employer Agent and can help employers virtually eliminate Form I-9 errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce.

For more information about E-Verify, visit http://www.esrcheck.com/formi9.php, read ESR News Blog posts tagged ‘E-verify’ at http://www.esrcheck.com/wordpress/tag/e-verify/, and see the E-Verify State Legislation Map is available on the ESR website at http://www.esrcheck.com/State-E-Verify-map.php.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com.

Source:

http://www.flgov.com/wp-content/uploads/2011/01/scott.eo_.two_.pdf 

http://media2.wpri.com/_local/pdf_files/chafee-e-verify-executive-order.pdf

Jobs Report Shows Employment Increased By More Than 100,000 Jobs in December 2010

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

The U.S. economy continued its slow recovery in December 2010 as nonfarm payroll employment increased by 103,000 jobs and the unemployment rate fell to 9.4 percent during the month, according to the latest figures from the U.S. Bureau of Labor Statistics (BLS).

‘THE EMPLOYMENT SITUATION — DECEMBER 2010’ report from the BLS showed that number of unemployed persons decreased by 556,000 to 14.5 million in December, down from 15.2 million. Overall, total payroll employment has increased by 1.1 million since December 2009, an average of 94,000 per month. Other findings in the jobs report:

  • Leisure and hospitality employment increased by 47,000 in December, with 25,000 jobs gained in food services and drinking places, a segment which overall has added 188,000 jobs since a recent low in December 2009.
  • Health care employment continued to expand In December with 36,000 jobs gained over the month in ambulatory services (+21,000), hospitals (+8,000), and nursing and residential care facilities (+7,000).
  • Professional and business services employment continued to trend up in December with 16,000 jobs in temporary help services and has risen by 495,000 jobs since a recent low in September 2009.

In addition, employment in retail trade, manufacturing, construction, and most other service providing industries changed little over the month of December.

For information on past jobs reports, visit the Employment Screening Resources (ESR) News archives tagged ‘jobs report’ at http://www.esrcheck.com/wordpress/tag/jobs-report/.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Source:
http://www.bls.gov/news.release/empsit.nr0.htm

Questions about Criminal Records of Job Applicants Become More Difficult for Employers to Ask

by Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and could have been avoided by a simple criminal record check. Checking criminal records demonstrates due diligence and is also an important preventative measure to protect against workplace violence.

One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants if they have a criminal record. The advantage is that an employer can use a well worded application form to discourage applicants with something to hide while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions.

In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

This is Trend #2 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Recently filed class action lawsuits alleging that questions about criminal records for employment purposes may discriminate against African-Americans and Latinos since they have higher rates of incarceration underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process. To read the policy, visit: http://www.eeoc.gov/policy/docs/convict1.html.

The EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, states that “with respect to the manner in which a business necessity is established for denying an individual employment because of a conviction record” the EEOC’s underlying position is “that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” As a result, the EEOC holds “that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”

However, the EEOC’s revised requirements for establishing business necessity state that an employer “must show that it considered these three factors to determine whether its decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.”

In addition, the EEOC “continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

According to a July 2010 report from the National League of Cities (NLC) and National Employment Law Project (NELP) – “Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records” – an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. The report features 23 cities and counties that have chosen to “ban the box” on their job applications that asks about an applicant’s criminal record, and defer the criminal background check to the final stages of the hiring process. These cities include: Baltimore, MD, Boston, MA, Chicago, IL, Jacksonville, FL, Memphis, TN, Minneapolis/St. Paul, MN, Oakland, CA, San Francisco, CA, and Seattle, WA.

Some states are enacting “ban the box” laws for questions about criminal records of job applicants on employment applications. For example, an overhaul of the Massachusetts Criminal Offender Record Information (CORI) that took effect November 4, 2010 means employers in Massachusetts can 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.

With more cities, counties, and even states considering the adoption of the “ban the box” policy that removes questions regarding criminal records of job applicants from initial job applications, employers should revisit their policies on using criminal records during employment background checks to remain compliant with federal, state, and local laws.

Unfortunately, many employers use language in their applications that is either to narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in difficulty. Employment Screening Resources (ESR) – a leading provider of background checks accredited by National Association of Professional Background Screeners (NAPBS) – recommends employers should ensure that their job applications are legally compliant.

  • An employer may NOT ask about arrests or detentions that did not result in a conviction.
  • An employer may only consider convictions or pending cases;
  • There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
  • An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature and gravity of the offense, whether it is job related, and when it occurred.

It is also recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.

In addition, all employment applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application will result in disqualification or termination of employment. When an applicant fails to honestly disclose the existence of a criminal conviction, the employer may be concerned about the lack of honesty involved since negative information honestly disclosed in a job interview may have no effect if the applicant otherwise has an excellent work history.

For more information on what language to use in applications, read ‘Special Report: Criminal Records, Employment and Employment Applications’ by ESR founder and President Les Rosen at http://www.esrcheck.com/articles/crime_and_employment_application.php.

So can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes using a system to identify applicants with a criminal record?

The one thing that employers can be advised with some certainty is that any sort of automatic exclusion policy based upon a job applicant’s status as an ex-offender is likely to expose them to a federal or state EEOC issue. That is why nearly every employment application not only asks about past criminal records but also has a disclaimer that a criminal record will not be used automatically. The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the nature and gravity of the past offense, the relevance to the job and how much time has passed. This is why ESR advises clients to approach automated software processes dealing with past criminal convictions of applicants with extreme caution.

The idea behind these rules is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to pre-judge. Of course, that does not mean a sex offender should be supervising a playground or an embezzler handling money, but only that while there may be a job opportunity for everyone, not everyone is entitled to every job. On the other hand, they need to be employed in an appropriate job, to avoid harm to the employer’s company, workers, or the public, and also to avoid lawsuits for negligent hiring.

There were numerous ESR News blogs in 2010 on the subject of criminal records of job applicants that may assist employers in navigating the issue of discrimination:

A series of recent surveys from the Society for Human Resource Management (SHRM) released revealed that approximately three out of four U.S. businesses – 73 percent – performed criminal background checks for their pre-employment screening programs, and more than 3 out of 4 candidates – 78 percent – underwent criminal background checks for positions with fiduciary and financial responsibility (handling cash, banking, and accounting).

For jobseekers with criminal pasts, a job search can be a frustrating because most employment applications will ask if they have a criminal record. Since job applicants with criminal records face greater challenges in finding employment – and since there are certain jobs where employers will justifiably not hire ex-offenders – ESR President Lester Rosen wrote the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ to help applicants with criminal pasts get and keep work to develop a successful job history. To read the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. For a Spanish version of the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce-SPANISH.php.

The increased focus on whether credit reports and criminal records are discriminatory was Trend #1 in the Employment Screening Resources (ESR) “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.

Just how much information an employer should be able to learn about the criminal past of a job applicant has become an increasingly controversial subject in the current economic downturn, when finding work is tough enough even for a job seeker with a spotless criminal record. Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense.

In other words, employers cannot simply follow a “No one with a criminal record need apply” strategy that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a job-related reason why that person is unfit for that job. As a general rule, ESR believes it is a best practice for employers to have written policies on important issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com or http://www.esrcheck.com/wordpress/tag/criminal-records/.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Second of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.eeoc.gov/policy/docs/convict1.html

Provider Fined $376,000 in Case Showing Need for Extensive Nursing Home Employee Background Checks

By Thomas Ahearn, ESR News Editor

An Indiana provider has been hit with $376,000 in penalties – which Indiana officials call one of the biggest fines of its kind – for employing several individuals at nursing homes who either had been convicted of criminal offenses or stripped of their licenses.

According to a news report, the fines were larger than usual because the provider – an operator of nursing homes – did not self-report the violations concerning seven employees who were ineligible to work where Medicaid payments were involved. The U.S. Office of the Inspector General (OIG) became aware of the problem in 2009.

A deputy in the office of the counsel to the Inspector General quoted in the news report said the provider “knew or should have known” the employees were excluded from taking part in federal healthcare programs. The deputy also stated that:

  • The majority of ineligible employees had lost their licenses or had their licenses revoked.
  • Violations are self-reported by provider companies in most similar cases.
  • Providers should regularly check lists of contractors and workers who are excluded from participation in government reimbursement programs.

This case reveals the growing need for more extensive nursing home employee background checks, or of any caregivers working with vulnerable populations such as children, the elderly, or those people with special needs. Nursing homes are particularly vulnerable to a higher duty of care to patients. Employers at nursing homes can be sued not only for negligent hiring, but also negligent retention if they knew – or should have known – there was a problem, not to mention negligent supervision.   

Employment Screening Resources (ESR) – a leading provider of background checks accredited by The National Association of Professional Background Screeners (NAPBS) –   offers a search vital for most healthcare industries: the OIG/GSA Name Search.

Together, the OIG (Office of the Inspector General) Excluded List and GSA (General Services Administration) Sanctions Report search the U.S. Department of Health and Human Services and OIG databases for individuals and businesses excluded or sanctioned from participating in Medicare, Medicaid, and other Federally funded programs.

ESR also offers expanded health cover searches that cover disciplinary actions taken by federal agencies as well as those taken by licensing and certification agencies in all 50 states. This is the most comprehensive search method available.

Employment Screening Resources ESR Home Health Care Check provides background screening services specializing in home health care workers in private homes or elder care facitlites. For more information, visit http://www.esrcheck.com/services/homehealthcare.php.

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

Source:
http://www.mcknights.com/provider-to-pay-376000-for-hiring-ineligible-employees/article/193588/

Experts Reveal Best Practices for Running Credit Checks during Employment Screening

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

A recent article from Inc.com, ‘How to Run a Credit Check,’ reveals best practices from experts for every step of the credit check process during employment screening so that employers may check the financial stability of potential employees.

According to the Inc.com article, employers using credit checks must consider the strong protections for potential employees that are built into federal regulations. They also need to be prepared for what to do with the results of the credit check and whether a bad credit history should automatically disqualify a job applicant from working at their business.

Financial background check experts – including Jared Callahan, Director of Client Relations for Employment Screening Resources (ESR) – agree the following five basic steps should be followed to get the most out of credit checks:

  • Step #1 – Have a Permissible Use
  • Step #2 – Get Permission
  • Step #3 – Find a Service to Use
  • Step #4 – Interpreting the Results
  • Step #5 – Do a Test Run

Step #1 – Have a Permissible Use

The federal Fair Credit Reporting Act (FCRA) dictates what constitutes a permissible use for credit reports:

  • In connection with a credit transaction;
  • Employment purposes;
  • Underwriting of insurance;
  • Professional licensing; and
  • Account review or other legitimate business needs.

For employment purposes, Callahan says only potential employees seeking jobs related to financial responsibilities should be subjected to a credit check: “If you’ve got ditch diggers out in the middle of nowhere, a credit check might not be relevant.” Employers also need to make sure the credit report is for a relevant purpose and that they are not arbitrarily digging into someone’s financial history.

Step #2 – Get Permission

Federal law requires employers always disclose when they seek to run a credit check on job applicants and they need to get their permission in writing too, along with personal information since credit check agencies require a full name and Social Security number. “The candidate’s rights are absolutely bulletproof protected by the Fed and the state you are in,” Callahan says.

Step #3 – Find a Service to Use

After attaining the permission of applicants, employers running credit checks on potential employees may use services such as Employment Screening Resources (ESR) that provide special employment-only credit checks with other background check information. These services usually charge a fee to run a credit check.

Step #4 – Interpreting the Results

Experts advise that standards for weighing the results should be established before employers start running credit checks on job applicants and that it is important to have a plan in place for what items will signal “red flags” or warning signs.

However, Callahan warns employers against jumping to a conclusion no matter what the credit report says since up to 75 percent of all credit reports contain incorrect information, including wrong home addresses and inaccurate bankruptcy details. “You really have to take a credit report with a grain of salt,” says Callahan, who also suggests that employers give subjects of credit reports a chance to respond and produce authentication for any financial points appearing on the credit report.

Step #5 – Do a Test Run

Consumers can run their own credit reports since the FCRA allows consumers to receive one free credit report a year from each of the three main reporting agencies: Equifax, TransUnion, and Experian. Consumers running their own credit check can keep on top of financial issues such as identity theft while finding and correcting inaccurate information. Government regulations make it easy to go online and contest the details of credit reports.

Employment Screening Resources (ESR) – a leading background check provider accredited by The National Association of Professional Background Screeners (NAPBS®) – recommends that employers should approach the use of credit reports for employment purposes with caution and use them only if there is a business justification. The Equal Employment Opportunity Commission (EEOC) is very concerned about the use of credit reports for employment purposes and has filed legal actions against some firms that use credit reports alleging that it results in a disparate or discriminatory impact.

In addition, some states are considering, or have passed, legislation to restrict the use of credit reports for employment purposes.  For example, effective January 3, 2011, the State of Illinois restricts employers from using credit reports for employment purposes. Under Illinois House Bill 4658 ‘The Employee Credit Privacy Act,’ employers in Illinois may not use a person’s credit history to determine employment, recruiting, discharge, or compensation.

The Inc.com article ‘How to Run a Credit Check’ is available at http://www.inc.com/guides/2010/12/how-to-run-a-credit-check.html.

For more information about credit checks, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:

http://www.inc.com/guides/2010/12/how-to-run-a-credit-check.html

http://community.ere.net/blogs/doreenkoronios/2011/01/effective-132011-state-of-illinois-restricts-employers-from-using-credit-reports-for-employment-purposes/

Employers Discover Fast and Cheap Online Background Checks Using Criminal Databases Not Always Accurate or Legal

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

According to an age old platitude, “If something looks too good to be true, it probably is,” so employers should be wary of fast and cheap online criminal background checks that promise accurate and legal information on job applicants at the click of a mouse or the touch of a screen.

The need for accurate and reliable information should be obvious to anyone dealing with background checks. Even so, numerous internet sites have sprung up recently promising cheap, almost instant background checks that deliver criminal information to anyone, anywhere, and in seconds. These sites utilize a so-called “national criminal database” and vendors of such databases typically claim to have compiled millions of records from every state so users can know instantly if someone is a criminal at a very low price.

Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, employers who think they are getting a real criminal background check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, while people without records can be incorrectly identified as criminals. Both results carry negative financial and legal implications for employers.

Employers using these databases for employment purposes need to understand the limitations and legal exposure associated with using them or risk finding themselves embroiled in litigation. Employers are quickly discovering that fast and cheap online background checks using criminal databases not always accurate or legal.

This is Trend #3 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Here are just some of the issues with these databases:

  • Multi-jurisdictional databases are NOT official FBI database searches. FBI records are only available to certain employers or industries where Congress or a state has granted access. Searches offered by “fast and cheap” web sites are drawn from government data that is commercially available or has been made public.
  • So-called national criminal searches are a research tool only and are not a substitute for a hands-on criminal record search at the county level by researchers. The best use for these databases is to indicate additional places for a background check firm to search.
  • Many states have very limited database information available for employers. Examples of states where databases may have limited value are California, New York, and Texas.
  • Databases in each state are compiled from sources that may not be accurate or complete and can contain results that are “false positives” or “false negatives.” A person’s name in a database is not an indication that person is criminal any more than the absence of that person’s name shows the person is not a criminal.
  • Database searches can be inaccurate due to searches often being based upon matching last name, the date of birth, and the first three letters of the first name to eliminate computer matches that are not applicable. However, in some states, there is limited or no date of birth information or a person may have been arrested under a different first name.
  • There are also significant legal complications for employers since any search from an internet site for employment is subject to the federal Fair Credit Reporting Act (FCRA) which highly regulates employment background checks. There are some “instant criminal check sites” that do not bother to make that clear or mention it only in the “fine print.”

Accurate background checks are important because inaccurate or “stale” (not current) information on background checks can disrupt the lives and careers of employees and job seekers alike and as the following examples from ESR News indicate:

In addition, in some cases “fast and cheap” can be a code word a background check scam. With so many people looking for work in the current economy and willing to do just about anything to land a decent job, background check scams were unfortunately a commonplace occurrence in 2010. Instances of falsified or outright fake background check investigations for employment purposes are on the rise, as indicated by these reports on ESR News:

With the unemployment rate just under 10 percent and approximately 15 million Americans unemployed, the Better Business Bureau (BBB) issued a warning to jobseekers about scammers taking advantage of the current weak economy by targeting unemployed people desperate to work, scams including false background checks and unnecessary credit report checks. The BBB has identified the following job scam “red flags” to help jobseekers to protect themselves while they search for a job:

  • The employer asks for money upfront for a background check or training: The BBB has heard about jobseekers that paid phony employers upfront fees for supposedly required background checks or training for jobs that didn’t exist.
  • The employer requires check of a credit report: The BBB warns that employers that ask job applicants to check their credit reports before they get work may be attempting to get the jobseekers to divulge sensitive financial information.
  • The employer offers the opportunity to become rich without leaving home: The BBB advises jobseekers to be use extreme caution when considering a work-at-home offer and always research the company with BBB at http://www.bbb.org.
  • The employer offers salary and benefits that seem too-good-to-be-true: The BBB uses an old adage – “If the deal sounds too good to be true, it probably is.” – to demonstrate how phony employers lure unsuspecting job hunters into their scam.
  • The employer’s e-mails have many errors in grammar and spelling: The BBB warns that online fraud is often done by scammers outside the U.S. and English is not their first language, as evidenced by poor grammar and misspelling of common words.
  • The employer asks for personal information too quickly: The BBB warns that job applicants should never give out their Social Security Numbers or bank account information over the phone or by email until they confirm the job is legitimate.
  • The employer requires money wire transactions or dealing of goods: The BBB also warns jobseekers about cashing checks sent by companies and wiring a portion of the money to another entity or receiving and mailing suspicious goods.

The recent surge in scams involving background checks underscores the need for employers to make sure that they are dealing with legitimate screening firms when outsourcing background checks. At a bare minimum, the background check firm should belong to the National Association of Professional Background Screeners (NAPBS). In addition, NAPBS has announced a Background Screening Agency Accreditation Program (BSAAP) that will also help employers locate professional and legitimate suppliers of background checks.

These stories are proof positive why employers cannot rely only on cheap and quick searches using Internet databases or search engines like Google check in place of “real” background checks from companies like Employment Screening Resources (ESR), which is accredited by the NAPBS Background Screening Credentialing Council (BSCC). ESR uses trained background check specialists that research criminal and civil court records, driving records, credit checks, social security number traces, employment references, educational verifications, and more.

Hiring (and firing) decisions made by employers must be based on timely and accurate background check information. Erroneous and out of date background check information exposes employers not only to bad hiring decisions but also to potential litigation from those people harmed by such data. In fact, the subject of database information accuracy gained national attention when the Federal Bureau of Investigation (FBI) came under fire for “flawed” information used in government background checks. As reported in ESR News:

For more information on databases searches, read ‘Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly’ by ESR founder and President Lester Rosen, which investigates all aspects of criminal database searches:

  • The Good: Criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
  • The Bad: Despite their value, criminal records databases have serious flaws, including incomplete records, name variations, and untimely information. Also keep in mind that database checks by private screening firms are NOT FBI records. 
  • The Ugly: Inaccuracy is only one pitfall of national criminal database searches. They also make employers vulnerable to a number of legal landmines, especially when it comes to confirming if the record is current and accurate and even belongs to the applicant. 

For more information about “real” background checks, background check scams, FBI criminal databases, and how employers can find the most accurate and current data about job candidates, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Third of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Background Check Industry Has Changed Much in Years from 2000 to 2010

By Thomas Ahearn, ESR News Editor

With the end of the year 2010 now upon us, the time seems right to look back at how much the background check industry has changed since the year 2000. In slightly over a decade, background checks have gone from a luxury to a necessity, from a primarily  government run endeavor to a substantial private sector business with a large number of firms providing service, and from a mostly expensive time and labor consuming task to, in some cases, a totally automated paperless solution.

Due in large part to the shocking terrorist attacks that unfolded on September 11, 2001 and led to increased security on all fronts in the United States, the background check industry has increasingly helped employers keep criminals, terrorists, and imposters out of their workplaces. Other factors behind the increased use of background checks include well publicized incidents of workplace violence, multi-million dollar negligent hiring verdicts, a sharp rise in cases of resume fraud including some well publicized examples of fake degrees, and a national awareness of the dangers to children and other vulnerable groups when unqualified or dangerous persons are allowed access to them.

Below are comparisons of background checks in 2000 and 2010 in six critical areas that have changed in the industry:

1. Number of employers performing background checks:

2. Industry standards for background checks:

Many changes have occurred with respect to background screening industry standards in the years between 2000 and 2010.

  • 2000: There is no national trade association, industry standards, or definitive publications on background screening. Steve Brownstein, Publisher of the Background Investigator, holds the first ever background check industry conferences in Long Beach, California and then larger events in Tampa, Florida. Employment Screening Resources (ESR) founder and President Lester Rosen is the keynote speaker at these first industry conferences.
  • 2003: As a result of the Tampa conferences, momentum builds for a professional trade association for the background screening industry. ESR President Lester Rosen serves as the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS®), a non-profit trade association representing the interests of background check companies, and serves as the first co-chair. NAPBS seeks 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. The Association provides relevant programs and training aimed at empowering members to better serve clients and to maintain standards of excellence in the background screening industry.”
  • 2004: ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace’ by ESR President Lester Rosen is published, the first comprehensive book on employment screening.
  • 2010: NAPBS launches the Background Screening Agency Accreditation Program (BSAAP) for a singular background check industry standard representing a background check company’s commitment to excellence, accountability, and professionalism. The Background Screening Credentialing Council (BSCC) is the governing accreditation body that ensures background check organizations seeking accreditation meet or exceed a measurable standard of competence. To become accredited, a background check company must pass a rigorous audit of its policies and procedures as they relate to six critical areas of the BSAAP: Consumer Protection, Legal Compliance, Client Education, Product Standards, Service Standards, and General Business Practices.

3. Sources for background check information:

  • 2000: Background check information is mostly limited to traditional sources such as criminal records, driving records, verifications, and reference checks.
  • 2010: With the advent of new technology like the Internet in general – and new media such as blogs, videos on YouTube, and social networking sites like Facebook in particular – there are many more potential outlets from which employers may gather information about job applicants.

4. The need for international background checks:

  • 2000: Before the rise of outsourcing, much of the workforce is perceived to have lived, worked, and been educated inside of the United States, so the idea of international background checks for job applicants seems expensive and unnecessary to most companies. There are also limited resources available for such background checks.
  • 2010: According to recent U.S. government statistics, there are 38.5 million foreign-born U.S. residents representing 12.5 percent of the population, more than 1.1 million persons became Legal Permanent Residents (LPRs) of the United States in 2009, and the unauthorized immigrant population living in the U.S. reached an estimated 10.8 million in January 2009 and grew 27 percent between 2000 and 2009. Given these facts, U.S. companies must be prepared to perform international background checks on job applicants with global backgrounds. Numerous resources are now available for background screening firms to conduct international background checks, as well as resources concerning international privacy and data protection.

5. Compliance issues concerning background checks:

  • 2000: Background check companies must comply with the federal Fair Credit Reporting Act (FCRA), originally passed in 1970, that regulates the collection, dissemination, and use of consumer information and is enforced by the Federal Trade Commission (FTC).
  • 2010: Background screening has become an intensely legally regulated endeavor. Background check companies must comply with a myriad of industry regulations in addition to FCRA requirements such as the Fair And Accurate Credit Transaction Act (FACT Act) of 2003 (which amended the FCRA), Sarbanes-Oxley, the Patriot Act, E-Verify employment eligibility verification, Equal Employment Opportunity Commission (EEOC) discrimination issues against protected classes pertaining to the use of criminal records and credit reports for employment purposes, and new consumer data privacy protections regulations such as “Safe Harbor” and privacy laws that protect the Personally Identifiable Information (PII) of consumers. Another source of intense legal regulations are state laws regulating credit reports and criminal records. California, for example, completely revamped its background screening laws in 2002 and added new requirements in 2010 when PII is sent offshore beyond the protection of U.S. privacy laws. Many states have their own version of the FCRA. 

6. Technology used in background screening:

  • 2000: Most employers are required to fax orders to a background check firm. The idea of entering orders into an online system or making information available online is only in the beginning stages.
  • 2010: Technology in the background check industry has increased substantially, with the use of online processes to not only enter orders but to have paperless systems with electronic signatures and integration into Applicant Tracking Systems (ATS) so background checks can be ordered with the click of a mouse. With the advent of Web 2.0, employers may expect to see more advances in the technology for the background screening process. The downside, however, is that Internet entrepreneurs have seized upon background checks as a way to make quick money and in some instances are playing off the fears of Americans by offering cheap and instant checks that are based upon databases never intended to be a substitute for a background check. 

Much has changed in the background check industry in the years spanning 2000 to 2010.  Employment Screening Resources (ESR) – founded in 1996 in the San Francisco area – has kept pace with advancements in the many changes regarding background screening. ESR is recognized as:

  • An accredited background screening firm by the NAPBS,
  • The company that wrote the book on background checks with ‘The Safe Hiring Manual’ by founder Lester Rosen,
  • The third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection, and
  • One of the first background check firms to introduce an online system to place orders, view status of orders, and retrieve reports.   

To learn more about Employment Screening Resources in 2011, visit the ESR web site at http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Happy New Year from Employment Screening Resources!

Employment Screening Resources (ESR) President Lester Rosen to Speak on Risks of Using Social Networking Sites like Facebook for Background Checks

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

Lester Rosen, founder and President of Employment Screening Resources (ESR), a leading provider of background checks accredited by the National Association of Professional Background Screeners (NAPBS®), will speak about ‘The Risks of Using Social Networking for Employment Background Screening’ at the January monthly meeting for the Northern California Association of Health Care Recruiters (NCAHCR). The presentation, part of the ‘ESR Speaks’ background check speaking and training program, will take place on Wednesday, January 5, 2011 in Fremont, California.

Mr. Rosen – an Attorney at Law and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace’ – will explore the legal risks of using popular social networking sites like Facebook for background screening of job candidates. He is a recognized background check expert and frequent speaker nationwide on issues surrounding employment screening. Rosen was also the chairperson of the steering committee that founded NAPBS and also served as the first co-chairman.

For more information about ‘The Risks of Using Social Networking for Employment Background Screening,’ visit the ‘ESR Speaks’ page at http://www.esrcheck.com/Newsletter/ESR-Speaks/. For a summary of ‘ESR Speaks’ events for 2011, visit http://www.esrcheck.com/ESR_Speaks2011.php. Check back regularly for updates.

The Northern California Association of Health Care Recruiters (NCAHCR) promotes professional principles of health care recruitment and provides education for health care recruiters, hospital administration, and the community regarding recruiting, employment, and retention of health care personnel. To learn more, visit http://www.norcalahcr.org/.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Background Checks of Temporary Workers Cause for Concern for Employers as Hiring Increases

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Many employers do not realize they potentially face the same exposure from vendors, independent contractors, and temporary employees from staffing firms as they do from their own full-time employees when it comes to negligent hiring lawsuits. Risk management controls of employers often do not take into account the “need to know” through background checks of workers who are not on their payroll but are on their premises, with access to computer systems, clients, co-workers, assets, and the general public.

The law is absolutely clear that if a vendor, independent contractor, or temporary worker harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s full-time payroll. All of the rules of due diligence – which include background checks – apply with equal force to vendors, temporary workers, or independent contractors. A business can be liable if, in the exercise of reasonable care, the business should have known that a vendor, temporary worker, or independent contractor was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work. Employers can also be held liable under the legal doctrine of “co-employment,” which means that even though the worker is on someone else’s payroll, the business that uses and supervisees the worker can still be held liable for any misconduct.

However, many employers have found out the hard way that workers from a vendor or staffing firm or hired as an independent contractor without proper background checks can also cause damage. When an employer is the victim of theft, embezzlement, or resume fraud, the harm is just as bad regardless of whether the worker is on their payroll or someone else’s payroll. No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that everyday when engaging the services of vendors and temporary workers with proper background checks.

So-called “temporary” workers can cause permanent problems for employers without the background checks that are performed on full-time employees. As hiring of temporary workers increases – and since the hiring of temporary workers is usually an indication of hiring full-time workers in the future – employers will become increasingly more concerned with background checks of temporary workers in the coming year. 

This is trend #4 of the Employment Screening Resources (ESR) Fourth Annual ‘Top 10 Trends in Background Screening’ for 2011.

Employers do have difficulty ensuring they have exercised due diligence regarding vendors and independent contractors since there is sometimes not a direct employer-employee relationship. However, an employer still has liability issues if a vendor or independent contractor causes harm to third parties. Case law from courts throughout the United States is clear that businesses have liability for acts of independent contractors. The duty of care must be exercised in all aspects of hiring, and it applies to retaining the services of a vendor or independent contractor. For an example of why employers should be sure staffing firms run background checks, read ‘Staffing firm supplies embezzler with felony fraud conviction but not liable to Employer’ by Employment Screening Resources (ESR) President Lester Rosen at: http://www.esrcheck.com/wordpress/tag/recruiters/page/2/.

The practical issue for employers is how they ensure that vendors or workers hired by third parties are safe and qualified. Fortunately, there are a number of cost-effective avenues available to employers to protect their businesses, their workers, and the public. Employers can insist in any contract for any service that any time a worker comes on premises, that worker has been the subject of a background screening. This has become a practice gaining widespread acceptance in American businesses. An employer must have a hard and fast rule — no worker supplied by a third party is allowed to work unless the worker has a background check.

However, just ensuring that a staffing firm does background check can be insufficient unless the employer:

  • Verifies that a legitimate and qualified background screening firm is being used.  Employers should at a minimum insure the use of a background screening firm that is a member of the National Association of Professional Background Screeners (NAPBS) and, better yet, that the background screening firm is accredited by NAPBS.
  • Verifies that the background screening protocols are the same as the employer uses for their own hires.
  • Agree to a methodology for dealing with potentially negative information. Some employers insist that if any derogatory results are found that the employer be advised.
  • Verifies that the release form being used by the staffing firm allows the workplace to view the report if needed. Equally important is that there be language in the release that confirms that the background check process does not create or imply an employer-employee relationship with the workplace where the staffing firm is sending the worker. 

Many employers in order to ensure a uniform and consistent process, will require a staffing firm to utilize the same background screening firm the employer uses for their own hires. 

Government job statistics show why background screening of temporary workers is so necessary. According to ‘THE EMPLOYMENT SITUATION — NOVEMBER 2010′ report from the U.S. Bureau of Labor Statistics (BLS), although the unemployment rate edged up to 9.8 percent and the number of unemployed persons was 15.1 million in November, temporary help services continued to add jobs over the month with temporary employment rising by 40,000. Employment in temporary help services has risen by nearly half a million jobs – 494,000 – since September 2009.

The number of persons employed part time for economic reasons is currently 9.0 million. Overall, employment in temporary services showed gains throughout 2010 and should remain strong into 2011, increasing the need for background checks of temporary workers.

As reported earlier on ESR News, even though the U.S. Census performed background checks for all applicants and employees according to the ‘BACKGROUND CHECK FAQ’ page, incidents involving temporary Census workers hired by the government serve as a prime example of why background checks of temporary workers is so important:

Examples other that the U.S. Census as to why temporary workers need employment screening include firms that routinely hire nighttime janitorial services without appropriate due diligence including background checks, and fast food industry routinely hiring suppliers and service firms that come into their restaurants to clean or deliver supplies. Without knowing who has the keys to facilities, employers give total strangers unfettered access to their business — and are totally exposed to the risk of theft of property, trade secrets, damages, or even workplace violence.

With more people looking for employment, there is a need for more employment screening. Whether the work is temporary, part-time, or full-time, an effective employment screening program can help any business succeed in any economy by ensuring a safe workplace. Employment Screening Resources (ESR) – a leading background check provider accredited by the National Association of Professional Background Screeners (NAPBS) –offers a complete array of vendor screening services.

For information on an effective background check program for vendors, staffing, and temporary workers, visit http://www.esrcheck.com/services/vendor_screening.php. To read the article ‘Staffing Vendors, Co-employment, Background Checks, and Lawsuits’ by Lester S. Rosen, President of Employment Screening Resources (ESR), visit: http://www.esrcheck.com/wordpress/2010/06/28/staffing-vendors-co-employment-background-checks-and-lawsuits/. For more general information on background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Fourth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, 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. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.bls.gov/news.release/empsit.nr0.htm
http://www.bls.gov/news.release/pdf/empsit.pdf

http://www.bls.gov/news.release/empsit.t08.htm http://www.census.gov/hrd/www/jobs/background.html

Court Decision Clarifies that a Bankruptcy can be Used as Part of Pre-Employment Background Check for Private Employers

A new decision by the United States Court of Appeals for the Third Circuit has clarified the issue of whether a private employer can legally consider a job applicant’s bankruptcy under U.S bankruptcy law in making an employment decision. The Court ruled that when it comes to private employers, Congress intentionally only protected current employees from discrimination under bankruptcy law, and that job applicants were not protected. However, employers should still approach the use of bankruptcy records with great caution. Continue reading