All posts by Les Rosen

Using Online Referencing Tools and Background Checks to Optimize Employee Selection – Part 1

Part 1

By Lester Rosen, ESR President

Identifying applicants that are the right fit and have the right knowledge, skill, and abilities to do the job is a perennial challenge for employers. In pre-industrial society, the problem was generally solved by either hiring someone that the employer knew, basing the hiring decision upon a personal recommendation, or using an apprenticeship type program that gave an employer a great deal of insight into who they were hiring.

While these approaches are still in use today, it is no longer possible to match millions of applicants and jobs based upon the employer having a pre-existing relationship with applicants. Additional approaches such as using the internet to find good candidates have developed.  Since every time an employer hires a stranger, it is somewhat of a “leap of faith,” employers need tools to make good decisions. Employers are seeking ways to determine who the person really is and what the person has done in the past, as predictors of how they will perform. Although past is not always prolog, past performance says a great deal about how a person may be expected to perform in the future. Employers also want a means to “look under the hood” at applicants rather than just accepting them at face value.

Every hire represents a significant investment and – simultaneously– a significant risk. A bad hire can result in a legal and financial nightmare. Bad hires cost an employer a great deal in terms of time wasted recruiting, hiring and training, and searching for a replacement, not to mention the job not being done. A bad hiring decision can also lead to litigation for negligent hiring, if the new employee turns out to be unfit, dishonest, or dangerous, and someone is harmed. To add insult to injury, when the bad hire is eventually terminated, employers need to deal with the possibility of a wrongful termination lawsuit even if the firing is entirely justified.

In order to evaluate the various hiring tools, it is essential to understand that the hiring process occurs on a time line. Each step of the continuum carries its own set of legal implications. Matching your hiring tools to the proper stage of the time line is key to sorting out the best applicants AND to helping prevent a bad hire. The available tools of the hiring process can roughly be divided in seven stages as follows:

  • 1. Sourcing stage: This is the process of gathering potential applicants through a variety of means that can include inbound applications from job boards, websites, newspapers, or outbound efforts, such as recruiters seeking passive candidates;
  • 2. Preliminary screening stage: In order to narrow down the applicant pool, there is a preliminary screening primarily based upon the applicants’ self-stated qualifications, conveyed by the resumes or applications or newer tools such as video websites;
  • 3. Assessment stage: This stage can include the interviewing process to further narrow down the field of candidates, as well as numerous other assessment tools, ranging from objective testing to references from past employers or supervisors, or various other testing methods;
  • 4. Decision process stage: Here, the employer has narrowed the pool to one, two, or three finalists and is moving toward a conditional job offer based upon an internal decision-making process;
  • 5. Background checking stage: At this point, either a conditional job offer has been made or is contemplated, and the employer needs to exercise due diligence, typically through a background screening firm, to determine if there is any reason NOT to hire the candidate. The emphasis of a background screening firm at this point is a factual verification of details such as job title and dates;
  • 6. The post offer/pre-hire stage: This is where an employer is able for the first time, if they so choose, to address such areas as pre-employment physicals;
  • 7. The post hire/on boarding stage: This is where an employer, for example, can complete the form I-9 process.

These seven stages illustrate a clear demarcation between efforts pointed at deciding who to hire, and efforts directed at deciding who NOT to hire. This is where evaluation of the pros and cons of the hiring tools comes into play.

Background checks, for instance, are of little assistance in stages 1 through 5. That is because a traditional background check is only performed on finalists, where, by definition, an employer has already made a tentative decision to either hire or place that person in the group of finalists. Background checks are used to decide who NOT to hire.

Are there other tools available besides background checks for sorting through the pool of applicants? Yes. One of the most interesting new tools is for online automated reference checks and assessments.

An example is the offering of Checkster, a company founded by a veteran in the talent management sector. Job candidates select references, such as former supervisions and co-workers, who then get an assessment request emailed to them. It’s self-service. Eliminated are the time spent making phone calls and waiting for and tracking responses. The references simply fill out an email questionnaire. The questionnaire itself is a scientifically designed assessment instrument that gives a fresh look at the applicant and contains a number of state-of-the-art validation tools. The results are communicated back to a recruiter or hiring manager in a graphical and intuitive report. Although there are others competing in the same space, Checkster clearly has thought through and designed the process from both the assessment and talent management point of view.

The end result of using such a tool is that the reference can quickly respond to an email, and time is not wasted on playing phone tag or managing follow-ups. The employer obtains a candid assessment because the person giving the reference is advised that the actual scores are confidential. Through Checkster’s processes, the email evaluations provide a scientific assessment of what is “under the candidate’s hood” – thus increasing the employer’s odds of making a job offer to the best candidate.

However, the question has arisen from some hiring managers: “Can services like Checkster replace the type of employment verifications performed by background firms?”

Read more in Part 2.

For more information about background checks and employment verifications, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://www.recruitingtrends.com/optimizing-employee-selection-by-using-online-referencing-tools-and-background-checks

From the ESR Mailbox: Employment Applications and Questions about Past Criminal Convictions

By Lester Rosen, ESR President

From the ESR mailbox: Our HR department is changing our application form so that an applicant only has to answer questions about any criminal matter going back seven years. They say that this is required under the laws of many states, including California. Are they right?

Answer: The issue of whether employers can use a job application in order to ask about a job applicant’s criminal record is getting complicated. For example, starting November 4, 2010, such questions are not permitted in one state, Massachusetts. For that reason, employers should have their legal department or employment lawyer double check the application form.

Although Employment Screening Resources (ESR) cannot provide legal advice, based upon commonly accepted industry practices, there is not really a good justification for a seven year limitation on applications.

First, the seven year rule is limited to just eleven states (California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Texas, and Washington). Nevada also has a form of a seven year rule, but it appears to apply to reports issued for credit purposes and not employment.

Of those states, there is broad agreement that the seven year rule for Texas and Colorado has been pre-empted by the federal Fair Credit Reporting Act (FCRA) because the rules were enacted too late to qualify for an exemption. A strong argument can also be made that it is pre-empted in California as well, although most firms still follow it.

Even for states with a seven year rule in effect, there is often an income exception, so that over a certain income level, a crime older then seven years can be reported. For example, Kansas, Maryland, Montana, Massachusetts, New Hampshire, and Washington waive the time limit if the applicant is reasonably expected to earn over $20,000 a year. So, as a practical matter, the limitation itself is very limited. California has no income exception, however.

Also, how the seven years is calculated can also get complicated. Seven years by no means actually means seven years. For example, a crime may have been committed more then 7 years ago, but if the person was still in custody within the seven years, it is likely reportable. Or a person committed a crime 9 years ago and violated parole or probation and spent a day in jail within the past seven years. That means the seven years clock starts over and it is reportable. The idea is that person must have been custody free for seven years. Generally speaking, being on parole or probation does not “toll” (or in other words stop) the seven year clock. It normally requires that an applicant be free of physical confinement.

Another critical point is that seven years is a reporting restriction is placed on a screening firm. Even for those states with a seven year rule, there is NO restriction upon an employer asking. Even if California, there is no requirement the employer limit the question to seven years.

The one other consideration, of course, is that going back too far can potentially create an Equal Employment Opportunity Commission (EEOC) issue because an old crime may be less relevant to a job (depending upon the nature and gravity of the of the crime and the nature of the job).

In some states, there are limits on asking about arrests that did not result in a conviction, as well as additional state specific limitations.

The bottom line is that such a limitation in the application does not appear to be mandated by sate or federal law. However, your firm’s attorney is in the best position to give advice on this issue. For more information on what language to use in applications, visit http://www.esrcheck.com/articles/crime_and_employment_application.php .

For more information on employee background checks and pre-employment screening, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://hr.toolbox.com/blogs/background-checks/employment-applications-and-questions-about-past-criminal-convictions-41276

Family of Michael Jackson Files Suit Claiming Death of Singer Caused by Negligent Hiring and Retention of Doctor

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

According to a post on The Hollywood Reporter, Esq. blog, the family of deceased singer Michael Jackson has filed a lawsuit against event production company AEG Live and others claiming they are responsible for the pop idol’s death because his contract with AEG for the planned “This Is It” tour created a legal duty to keep him healthy. 
 
As part of the lawsuit, the Jackson family accuses AEG of the “negligent hiring” and retention of Dr. Conrad Murray to care for Jackson in advance of the concerts instead of his usual doctor, the blog notes. Murray later allegedly administered the drug Propofol to Jackson without necessary resuscitation equipment or nursing support, and the singer died with the drug in his system.

With regard to the ‘Negligent Hiring’ cause of action, the complaint filed in Los Angeles Superior Court on behalf of the family includes verbiage claiming that:

  • In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray’s background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.
  • During the course of Murray’s treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care.  AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.

Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. The matter is still pending in court.

According to ‘The Safe Hiring Manual – How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace’ by Lester Rosen, founder of San Francisco area background check firm Employment Screening Resources (ESR), every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring. The legal description of the duty of care – “due diligence” means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.

If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.

While most employers obviously will not hire applicants they know are dangerous or unfit for a job, it is the “should have known” part that gets employers into difficulties.

For more information about due diligence and negligent hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.

Sources:
http://thresq.hollywoodreporter.com/2010/09/michael-jackson-lawsuit-aeg.html
http://reporter.blogs.com/files/jackson-2.pdf

Bus Company Sued for Discrimination against African-Americans and Latinos

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

A class action lawsuit backed by nation’s largest union of mass transit workers – the Amalgamated Transit Union (ATU) – asserts that a major provider of bus services violated federal race discrimination laws in its operations because workers with criminal records were barred from employment no matter how old the conviction.

According to a story on ATU News, a class action lawsuit was filed against First Transit, Inc., one of the nation’s largest bus companies, for illegal discrimination against African-American and Latino employees and job applicants. The lead plaintiff is an African-American woman who was fired in 2009 by First Transit in Oakland, CA, after just two days on the job due to a seven-year-old felony welfare fraud conviction, which had been expunged from her record by the state of California, according to ATU News.

At issue is a company-wide “No Hire Policy” implemented by First Transit that refuses employment to any job applicant who has a past felony conviction or who has been sentenced to any term of incarceration, no matter how brief. The “no-hire” policy is in force regardless of:

  • The nature and gravity of the offense,
  • The amount of time passed since the conviction, or
  • Whether the offense has any relationship to the job in question.

According to the plaintiff’s complaint, the policy has a “disparate impact” on African-American and Latino job seekers, because they are arrested and convicted at far greater rates than their white counterparts, ATU News reports.

In addition, ATU News reports that policy guidelines of the U.S. Equal Employment Opportunity Commission (EEOC) cited in the class action complaint support the claim of discriminatory practices at First Transit. According to the EEOC:

[A]n employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African Americans and Latinos]… such a policy or practice is unlawful under Title VII [of the U.S. Civil Rights Act of 1964] in the absence of a justifying business necessity.”

Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule – like a company-wide “No Hire Policy” – 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. 

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com.

Source: http://www.atu.org/content/atu_news/7257/

Arizona Nightclub Uses Background Checks to Tighten Security

By Thomas Ahearn, ESR News Blog

Patrons of nightclubs are usually prepared to have their driver’s licenses checked to prove they are old enough to drink, pay a cover charge, and adhere to a dress code, but undergo a background check?

According to an article posted on the Arizona Daily Star website, the Pearl Nightclub in Tucson, AZ is requiring some patrons to submit to a background check before they enter as part of beefed up security after the shooting death of a 21-year-old man in its parking lot in August.

Patrons that don’t meet the club’s dress code – which prohibits baggy clothing, athletic wear, flip-flops, work boots, or plain-colored T-shirts – are asked by security guards to submit to a background check search done online through the Arizona Judicial Branch’s website, the Daily Star reports.  People without recent felony convictions are issued a VIP card allowing them free admission that night and quicker entry on subsequent visits.

If a background check turns up a recent felony conviction they are not allowed in the club. Only men have been asked to submit to background checks so far, which take one minute or less, and around 10 people have been asked to leave the club after a background check turned up a recent felony conviction, according to the article.

However, the executive director of the American Civil Liberties Union of Arizona was quoted in the article warning that the club needs to avoid the perception that it is targeting certain groups and that “there should be clearly defined standards for who gets searched to guard against discrimination.”

In addition, the Daily Star also reported that background checks conducted on the county’s Justice Court’s website are not foolproof for the following reasons:

  • The background check won’t turn up crimes a person has committed in another state or another country.
  • If a person commits a crime soon after being issued a VIP card by the club, the club’s security guards would not know unless they ran another background check.

Background checks are an effective method to promote a safe workplace, especially with the help of a professional background screening firm. To find such a firm, employers are advised to choose a background screening firm that is a member of the National Association of Professional Background Screeners (NAPBS).

For more information on background checks and how to keep any workplace safer and secure, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:
http://azstarnet.com/news/local/crime/article_5cd72708-ce87-57f5-87b0-0b7427e87ef5.html

Author and Safe Hiring Expert Lester Rosen to Present Two Sessions at PIHRA Pacific West HR Conference in Pasadena CA on September 22

President of Employment Screening Resources (ESR) Lester Rosen to review hot button issues HR Professionals face during hiring including international background checks, discrimination, privacy, and use of social networking sites for background checks.

By Thomas Ahearn, ESR News Blog

Safe Hiring Expert Lester Rosen, President of Employment Screening Resources (ESR), the San Francisco area firm that literally “wrote the book on background checks,” will present two sessions at the 53rd Annual Professionals In Human Resources Association (PIHRA) Pacific West HR Conference & Exhibition in Pasadena, CA on Wednesday, September 22, 2010. The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” is 11:10 AM to12:10 PM while the second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” is 2:00 PM to 3:00 PM. For more information, visit http://www.pacificwesthrconference.org/conference_sessions.cfm.

“To avoid the financial and legal nightmare of bad hiring decisions, employers have increasingly turned to pre-employment background screening,” explains Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,’ the first comprehensive book on employment screening. “However, screening is subject to intense legal regulation.”

  • The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” (Wednesday, 9/22/10, 11:10 AM to12:10 PM) will review the hot button screening issues for 2010, including discrimination lawsuits, privacy, the use of social networking sites, legal compliance, best practices for employers and recruiters, and international background checks.
  • The second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” (Wednesday, 9/22/10, 2:00 PM to 3:00 PM) will reveal potential legal landmines and practical risks involved with using social networking sites for screening as well as strategies to stay out of court.

“Employers and recruiters have discovered a treasure trove of information on job applicants by searching the internet and social networking sites,” says Rosen. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

Both sessions have been pre-approved by the HR Certification Institute (HRCI) for one (1) general recertification credit hour toward PHR, SPHR, and GPHR recertification.  Speaker Rosen is an attorney at law and a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues. He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as the first co-chairman.

The Pacific West HR Conference is from September 21 to 23, 2010 and held by PIHRA, the largest chapter of the Society for Human Resource Management (SHRM) in the country with more than 5,200 members representing more than 3,000 firms.

About Employment Screening Resources (ESR):

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) is dedicated to promoting a safe workplace for both employers and employees and literally wrote the book on background checks with “The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” by ESR founder and President Lester Rosen. In 2003, ESR was rated the top U.S. employment screening firm in the first independent study of the industry. More recently, ESR produced an intensive 30-hour online Safe Hiring Certification Training course and has expanded to provide extensive international screening and applicant generated reports. To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or jcallahan@esrcheck.com.

Employment Screening Expert Lester Rosen to Speak on Benefits of Employee Background Checks

By Thomas Ahearn, ESR News Blog

Speaker and Author Lester Rosen, Founder and President of Employment Screening Resources (ESR), the firm that literally wrote the book on background checks, will be featured on a show titled “Whom Do You Trust? The Benefits of Employee Background Screening” on Thursday, September 16, 2010 at 9AM Pacific Time, 12 Noon Eastern Time. The program is part of a weekly series called ‘PI’s Declassified!’ hosted by noted licensed Private Investigator (PI) Francie Koehler which gives a glimpse inside the little known world of private investigation every Thursday.

Listeners can tune in to ‘PI’s Declassified!’ on Voice America Variety and hear Rosen – an attorney and a licensed private investigator – offer “the ins and outs and ups and downs” of employment screening. Listeners may call the Live Show at 866.472.5787 or email questions to the host Koehler at Francie@PIsDeclassified.com. For more information, visit: http://pisdeclassified.com/2010/upcoming-shows/whom-do-you-trust-the-benefits-of-employee-background-screening.

“It doesn’t matter who you are, you want to be safe where you work,” says Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ the first comprehensive guide to employment screening. “If you are an employer, you certainly want to ensure your employees work in a safe environment and that workers have the qualifications that they claim. If you are an employee, it is important to have an assurance that you are not working with those who could cause you or your co-workers harm.”

Rosen, a former deputy District Attorney and criminal defense attorney, is a recognized expert, consultant, writer, and presenter on pre-employment screening and safe hiring, and is a founding member of the National Association of Professional Background Screeners (NAPBS) where he served as co-chairman on its first board of directors. In 1996, he helped create Employment Screening Resources (ESR), a background screening firm dedicated to a safe workplace for both employers and employees. In 2003, ESR was rated the top-screening firm in the U.S. in the first independent screening industry study. 

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

Source:
http://pisdeclassified.com/2010/upcoming-shows/whom-do-you-trust-the-benefits-of-employee-background-screening

Suspended Employee Suspected of Killing Two Co-Workers in Workplace Violence Incident

By Thomas Ahearn, ESR News Blog

In yet another tragic case that adds to the recent rise in workplace violence incidents, a recently suspended employee who had worked at a Kraft Foods plant in Philadelphia, PA for the past 15 years is suspected of killing two co-workers while wounding a third.

According to a report in The Philadelphia Inquirer, the 43-year-old woman and suspected killer allegedly returned to the plant armed with a .357 Magnum only minutes after being suspended and escorted off premises. She returned minutes later with a gun, entered the building, and went to the third-floor mixing room where she worked, and opened fire on three co-workers.

The shooter was taken into custody after a standoff by SWAT team members. The event is eerily similar to other recent workplace violence incidents occurring in the past year:

  • In August 2010, a truck driver in Connecticut who purportedly stole from his company and resigned reportedly killed eight people and then shot himself with a handgun.
  • In February 2010, a professor supposedly upset about being denied tenure at a university in Alabama allegedly fatally shot three professors during a faculty meeting.
  • In January 2010, an employee at a manufacturing company in Missouri involved in a lawsuit filed against the company allegedly killed three people and then shot himself.

In addition, in the wake of the tragic shooting spree on November 5, 2009 in which an Army psychiatrist allegedly opened fire at Fort Hood, Texas and took the lives of 13 military personnel and wounded 32 others, the Department of Defense called for more education about workplace violence as part of its final review of the recommendations from the independent report “Protecting the Force: Lessons Learned from Fort Hood.”

“Workplace violence” is loosely defined as threats, assaults, and violent acts – including murder – which occur in, or are related to, the workplace. All employers should consider having policies, practices, and procedures to address the subject of workplace violence.

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

Sources:
http://www.philly.com/inquirer/front_page/20100910_Shooter_kills_2_Kraft_workers_at_Northeast_Philadelphia_plant.html
http://www.cnn.com/2010/CRIME/08/03/connecticut.business.shootings/index.html?iref=allsearch
http://www.cnn.com/2010/CRIME/01/08/factory.shootings/index.html?iref=allsearch
http://abcnews.go.com/GMA/alabama-university-shooting-suspect-amy-bishop-violent-past/story?id=9839348
http://www.defense.gov/news/d20100820FortHoodFollowon.pdf

Labor Department Report Shows Job Openings Rose in July after Two Months of Declines

By Thomas Ahearn, ESR News Blog

In a positive sign that companies may increase hiring soon, the U.S. Labor Department reports that the number of jobs advertised rose in July after two months of declines.

The Labor Department’s ‘Job Openings and Labor Turnover Survey’ (JOLTS) showed that the number of jobs advertised rose by 6.2 percent to 3.04 million in July, the highest total since April when hiring for temporary census jobs inflated that month’s figure.

Among industries, the JOLTS report revealed that education and health services and leisure and hospitality showed the biggest increases in job openings.

  • Education and health services posted 533,000 jobs in July, up from 487,000 in June.
  • Restaurants and hotels advertised 310,000 openings in July, up from 263,000 in June.

In addition, the JOLTS report illustrates the degree of “job churn” that the U.S. economy experiences each month. In July, while companies and government agencies hired 4.2 million people, 4.4 million people were laid off, quit, or retired during the same month.

The JOLTS report also indicates heavy competition for each job. An average of 4.8 unemployed people competed for each job opening, less than the 6.3 unemployed people in November 2009 but more than the 1.8 unemployed people when the recession began.

Despite the increase in job openings, total job openings remain far below the 4.4 million that existed when the recession began in December 2007, according to the JOLTS report.

With an increase in hiring, employers will need an increase in employment screening for the millions of job applicants competing for a limited amount of jobs. Using a Safe Hiring Program (SHP) will help employers save time and money selecting new employees while also lessening legal risks during the hiring process.

For more information about Safe Hiring Programs and background checks for job applicants, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:
http://www.bls.gov/news.release/jolts.htm

Employers Should Be Wary of Cheap or Instant Online Criminal Background Checks

By Lester Rosen, ESR President 

Numerous internet sites have sprung up in recent years promising cheap or instant background checks that deliver criminal information on anyone. 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 if someone is a criminal at the click of a button. These databases appear to offer employers an instant criminal check 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, anyone who thinks they are getting a real criminal 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, and people without reportable records can be incorrectly identified as criminals, both results carrying negative financial and legal implications for employers.

Anyone using these databases, especially for employment purposes, needs to understand the limitations and legal exposure associated with using them. If they don’t, employers may find themselves embroiled in litigation. Here are just some of the issues:

  • Multi-jurisdictional database 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 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 search at the county level under any circumstances (or the functional equivalent of a county level search). The best use for these databases is to indicate additional places for a background firm to search in case a record is found in a jurisdiction that was not searched at the county court level.
  • In addition, many states have very limited database information that is available to employers. Examples of states where such databases may have very limited value are California and New York. Texas is another state where database information can be wildly inaccurate.
  • Databases in each state are compiled from a number of sources. There are a number of reasons that database information may not be accurate or complete. Because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is criminal any more than the absence of a name shows he/she is not a criminal. In other words, these databases can contain results that are a “false positive,” or a “false negative.” Any lack of a match is not the same as a person being “cleared.”
  • Another reason a database search can be inaccurate is the technical nature of how searches are performed. Searches are often based upon matching last name, the date of birth and the first three letters of the first name in order to eliminate computer matches that are not applicable. In some states, there is no or limited date of birth information which means a search of that state will have little or no value. Or, a person may have been arrested under a different first name.
  • There are also significant legal complications for employers. Any search from an internet site for employment is subject to the federal Fair Credit Reporting Act (FCRA) an often times state laws, which highly regulates employment background checks. There are some instant “criminal sites” that do not bother to make that clear or mention it only in the “fine print.”

In addition, before relying on a database search for employment, FCRA Section 613 must be followed. That section requires that if a criminal matter is found that can adversely affect employment, then a letter should be sent to the applicant by the agency providing the information, which many web sites certainly do not do for employers. This option is not even allowed under California law. The other option is to reconfirm all “hits” at the county court level to insure that the information is accurate, complete and up to date at the time it is reported.

Also, keep in mind that a criminal record should not be used to automatically disqualify an applicant, without taking into account the Equal Employment Opportunity Commission (EEOC) rules as to what is a job-related criminal offense. Otherwise, an employer may find themselves facing allegations of discrimination. In addition, the use of criminal records for employment is also intensely regulated by many states, and without professional guidance, employers may use information that is impermissible, again exposing an employer

The bottom-line: These do it yourself “criminal “searches are not always as advertised. Unless you are a professional, such a search can easily lead an employer astray or get them into legal hot water. Even for non-employers that want to check out someone, such as someone that wants to screen a potential “date,” it is critical to understand that these sites are NOT the real thing when it comes to criminal checks, since in many instances the search can have holes in them the seize of Texas.

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

Source:
http://hr.toolbox.com/blogs/background-checks/beware-of-online-criminal-searchesthe-money-you-save-may-put-your-firm-at-risk-40906