The boundaries of using the internet for employment decisions was tested in a Michigan case involving the termination of a teacher that was photographed without her consent at an adult party engaged in a simulated sexual act, where students were not present and the conduct was not unlawful. Continue reading
By Lester Rosen, ESR President
From the ESR mail box:
Here is a frequently asked question dealing with the federal Fair Credit Reporting Act (FCRA) and the pre-adverse and post-adverse action notices. Suppose an employer has two finalists for one position. The employer submits both names for background checks and both candidates have clear background reports. The firm then decides to offer the job to one candidate over the other, purely based upon the belief that one candidate was a better fit than the other, with nothing to do with the background reports.
Question: Should the employer still send the adverse action notices (both pre and post notices) to the rejected job candidate, even though the rejected candidate’s background report played no part in the hiring decision?
Answer: Although Employment Screening Resources (ESR) cannot give legal advice, ESR can give a very lawyer-like answer, which is: It depends.
Assuming the screening report is 100% not related to the decision, and it was entirely a fit issue, then theoretically an employer can bypass adverse action. Technically, adverse action notices are required only where a background report played a role, in whole or in part, in the employment decision. The idea is to give an applicant a meaningful opportunity to review, reflect, and act upon a report if the applicant feels it is incorrect or incomplete in any fashion.
Even if the background report played just a minimal part in the final decision, the adverse action notices would be required. However, if the employer merely decided to screen both finalists, and found nothing in the screening report that impacted the final decision, then strictly speaking the adverse action notices would not be required.
However, as with most things involving employment decisions and background checks, nothing is ever that cut and dried.Â Here are some of the possible complications:
- The first issue is proof. The rejected applicant may claim that the fit argument was a pretext. This is especially risky if the candidate not hired is a member of a protected class and argues failure to hire due to discrimination. Invariable, the attorney for the plaintiff that chooses to sue would probably add on a cause of action for failure to follow the FCRA by not giving the rejected applicant a chance to correct a report. Plaintiff lawyers have become very sophisticated in their understanding of the FCRA, and employers and screening firms that violate it can well be targets of litigation.
- In addition, the subject of what is adverse can be tricky. Even if there is nothing derogatory on the face of the report, the rejected applicant can still claim that the report gave the wrong impression. For example, a job title may have been reported that was different than the applicant used. Another example is a credit report if it was run as part of the background check. If the credit report came back and there here was nothing derogatory such as late payments, there still could still be information that was incorrect. For example, some employers look to see how much debt an applicant is in and compare their monthly obligations to their salary. If the reported debt information was incorrect, the applicant can argue he/she was placed in a false light without a chance to correct it.
- Another problem is consistent administration of the adverse action rules. If an employer starts picking and choosing when to send or not send notices, an error can be made in other cases, since it can be a judgment call to a certain extent as to whether there was anything negative that influenced the decision. Some employers choose to send the notice to any rejected applicant that was the subject of a background report and not hired to ensure full compliance. After all, employers usually only submit background check requests generally on finalists so the situation may not come up that often.
The bottom line is always risk management, and many employers decide to follow a consistent policy of always sending out adverse action notices, even if not strictly required, so nothing falls though the cracks and they don’t need to justify anything later. Providing adverse action notices are a quick clerical task that takes little time. If for some reason the lack of notices becomes an issue in employment related litigation, it may be hard to convince a jury that in fact the report was 100% irrelevant to the decision.
If for some reason, there is a particular case where an employer does not want to send out the adverse action notices, then the employer may want to prepare a memo to file clarifying that it was a fit issue only and the screening report was not involved even one iota.
For more information on adverse action client letters, including suggested langue, see the ESR Special Report, The FCRA in Four Easy Steps, at: http://www.esrcheck.com/articles/Complying-with-the-Fair-Credit-Reporting-Act.php.
Employment Screening Resources (ESR), a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting before the Mt. Baker SHRM Chapter in Bellingham, WA on August 11, 2010.
The Mt. Baker Chapter of SHRM is a chapter of the Society for Human Resource Management (SHRM). SHRM is the world’s largest association devoted to human resource management. See: http://www.mtbakershrm.com/content/view/21/91/
“I am very pleased to have opportunity to discus this cutting edge topic at the SHRM chapter meeting with to-notch human resources professionals,” commented Rosen. “Recruiters, human resources and hiring managers are utilizing social network sites to make hiring decisions, and there is a need to take into account the potential liabilities that employers can face if done incorrectly or unfairly.”
Mr. Rosen, who is also an attorney, is a nationally recognized expert on employments screening background checks. He is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Mr. Rosen is the author of the first comprehensive book on employment screening, “The Safe Hiring Manual Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” He also wrote, “The Safe Hiring Audit.”
Mr. Rosen’s speaking appearances have included numerous national and statewide conferences. He has testified in the California, Florida, and Arkansas Superior Court as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as the first co-chairman in 2004.
More information about Employment Screening Resources can be found at www.ESRcheck.com.
By Lester Rosen, ESR President
In a number of blogs, Employment Screening Resources (ESR) has discussed why employer should very carefully consider the dangers of utilizing an employment screening process that sends applicant data off-shore for processing. Such a practice puts the employer at risk. Making Personal and Identifiable Information (PII) available to off-shore operator beyond the reach of U.S. privacy laws is a completely unnecessary risk, not to mention the lack of quality control and standards.
In a new twist on off shoring, the global edition of the New York Times reported on July 22, 2010 that Japanese companies are trying to save money by off shoring Japanese workers to cheaper locations in Asia. Some Japanese firms have found that they cannot use foreign Japanese speakers because the service quality does not match customer expectations, and even foreign workers with a good command of the Japanese language may not understand the nuisances of politeness and manners of Japanese customers.
Although the wages are lower for Japanese workers that allow themselves to be outsourced and off shored, the lower cost of living may allow worker to save money and provide an interesting experience.
It appears that U.S. firms that off shore to foreign countries have also found that even though foreign English speakers are cheaper, the customer experience may often be lacking. Partly for that reason, many U.S. firms have brought call center work back to the U.S.
ESR does NOT send U. S. applicant information outside of the U.S. for processing. Once data leaves the U.S., the data is beyond the reach of U.S. privacy laws and there is a lack of privacy protections. Sending data outside the U.S. put applicants and employers at great risk with no meaningful upside for employers. As a practical matter, someone in the U.S. has no ability to hire a lawyer in a foreign country to pursue legal action or contact a foreign police authority to get any action taken if their identity of PII is compromised. The only exception is where ESR is asked to perform an international verification and the information resides outside of the U.S. Even in that situation, ESR goes to great length to protect applicant data by going directly to the school or employer. If it is necessary to have a researcher do research in a foreign country, ESR only releases the minimum information absolutely necessary.
A large number of screening firms have also taken a position against off shoring data. See: http://www.concernedcras.com/no_offshoring.htm.
The Massachusetts Offices of Consumer Affairs and Business Regulations (OCABR) recently passed regulations that went into effect March 1, 2010 and are aimed at safeguarding the personal information of Massachusetts residents by requiring a business to have a Written Information Security Program (WISP) to protect personal information.
The STANDARDS FOR THE PROTECTION OF PERSONAL INFORMATION OF RESIDENTS OF THE COMMONWEALTH cover any business that “receives, stores, maintains, processes, or otherwise has access to personal information in connection with the provision of good or services or in connection with employment.”
The rules defined personal information as a Massachusetts resident’s name combined with a social security number, driver’s license or state issued ID card, or a financial account.
The regulations also apply to third parties and require that there be contracts to ensure that the regulations are implemented and maintained, although the contracts did not need to be updated before March 1, 2012. It appears that Massachusetts takes the position that the rules apply to out of state firms that handles personal information as well.
A business that is regulated by these rules must have and implement a comprehensive Written Information Security Policy, or WISP. The rules do not specify exact policies but provides minimum requirements and indicates a business should take certain a number of factors into account such as the kind of records it maintains and the risk of identity theft.
Some of the things a business must do includes a review of foreseeable internal and external risks, evaluation and improvement of safeguards, policies for employee access outside of the business, implementing security measures such as password control and up to date firewall, employee training, ensuring that terminated employees cannot access confidential data as well as disciplinary measures for violations of the regulations.
This new law has been described as the toughest in the nation, and should go a long ways toward improving privacy and data security and fighting identity theft. A text of the new regulations can be viewed at: http://www.mass.gov/ocabr/docs/idtheft/201cmr1700reg.pdf.
With these strict information security regulations now in effect in Massachusetts, employers need to ensure that their background screening firms are in compliance, Employment Screening Resources (ESR) — a leading background check provider — maintains compliance with the new private information protection in Massachusetts. For more information on privacy and data security as it relates to background checks, contact Employment Screening Resoruces at http://www.ESRcheck.com.
A text of the new regulations can be viewed at: http://www.mass.gov/ocabr/docs/idtheft/201cmr1700reg.pdf.
By Lester Rosen, President of ESR
From the ESR Mail Box
Can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes that use a system to identify applicants with a criminal record?
The one thing that an employer can be advised with some certainty is that any sort of automatic policy based upon a person’s status as an ex-offender is very likely to expose a firm to a federal or state Equal Employment Opportunity Commission (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. In fact, in 2009, New York passed a law that requires an employer to review a longer list of factors related to a past crimes. This is why ESR advises clients to approach any sot of automated software processes with extremes caution.
The idea 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 the bottom-line is that there is a job for everyone, although not everyone is entitle to every job. As a society, we cannot afford to build more prisons then schools or hospital, so there is a big need to get past offenders employed. In fact, nationally, it costs about $30,000 a year to incarcerate a person.Â If a person leaves jail or prison and cannot get a job, there is a high likelihood of recidivism and more costs to society.
On the other hand, they need to be employed in an appropriate job, to avoid harm to the firm or the public and to avoid lawsuits for negligent hiring. There is no perfect solution, but as with many things associated with HR, it is the process that is critical. The process should certainly allow for individual consideration of each applicant on their merits as it relates to a job. Of course, if a person has lied on tier application and was dishonest about past criminal history then the employer may rightly be concerned about the lack of honesty on the application especially if the application clearly indicates hat any material omission or misinformation is grounds to terminate the hiring process or employment, no matter when discovered.
There are numerous ESR blogs on the subject that can assist employers in navigating these issues:
- 2010 Trend on Increased Focus on Whether Credit Reports and Criminal Records are Discriminatory
- Discrimination Lawsuit Shows Importance of Employer Policy on the Use of Criminal Records During Background Checks
- The Unfair Use of Credit Reports and Criminal Records and the EEOC E-Race Initiative
By Lester Rosen, ESR President
The following Due Diligence Checklist contains questions employers can use to find out if an employment screening company is utilizing due diligence in its employment screening process. A .PDF version of this Due Diligence Checklist that employers can download and print is located at http://www.esrcheck.com/file/Extras/ESRDueDiligenceCheckUp.pdf.
- Have there been any material changes in the past year that would adversely affect your ability to provide industry standard employment screening reports?
- Is all work performed in the USA to protect privacy and control quality (i.e., nothing sent offshore to India or other places)?
- Are all employment and education checks conducted by professionals in a controlled, call center type environment, so that nothing is sent to at-home workers?
- For employment verifications, are anti-fraud procedures in place, such as independent verifications of all past employer phone numbers instead of relying upon an applicant supplied number?
- For education verifications, are steps taken to verify if a college or university is accredited and to watch out for Diploma Mills?
- Are criminal searches conducted using the most accurate means, which normally means on-site (no database substitutes)?
- Do you search for both felonies and misdemeanors when available?
- When a criminal hit is reported, does a knowledgeable person in your firm review the findings to determine if there are any legal issues in reporting the findings (as opposed to having the information entered by a court researcher)?
- When there is a criminal hit, do you contact the employer immediately to advise that there is a potential problem?
- Does your firm take measures to ensure that ALL legal and relevant criminal records are searched, as opposed to just going back “seven” years?
- If a client orders a “multi-jurisdictional” database, do you re-verify any criminal “hit” at the courthouse level for maximum accuracy, instead of relying on notifying the applicant of a potential hit?
- Do you notify your clients of changes in the FCRA and other applicable laws?
- Do you at least, on a yearly basis, do an internal FCRA compliance audit?
- Do you offer international background checks?
- Is your firm “Safe Harbor Certified” to perform screenings of applicants from the EU (European Union)?
- Do you have data protection, privacy security and data breach policies?
- Are you a member of the background screening trade association, the National Association of Professional Background Screeners (NAPBS), and does your firm actively participate and support professionalism in the screening industry?
- What is your average turn-around time?
- If there is a delay for reasons that are out of your control, are your clients notified online with in-depth notes and the anticipated ETA of information?
- Are your clients provided with written documentation and resources on safe hiring, due diligence and legal compliance issues?
- Are your clients provided with upgrades in technology that would enhance workflow, such as the ability to have applicants consent online or integration with an ATS or HRIS system?
- Can you describe your initial training program for team members and ongoing training?
By Thomas Ahern, ESR News Staff Writer
A story in the Daytona Beach (FL) News-Journal reveals that an ongoing investigation into Florida’s local child care licensing office found that some local child care facilities have not been implementing criminal background checks on all child care employees.
According to the News-Journal, files in over 100 child care centers and homes providing child care in one county were found to be “in disarray” regarding background checks and inspections because of problems with some former workers at the state Department of Children and Families (DCF). One worker was fired and two others have since resigned.
It is not clear how many child care employees without current background checks are still supervising children, the News-Journal reported, since preliminary investigations by the DCF into one of its child care licensing offices showed some DCF workers had falsified records and did not ensure that child care centers had current background checks in files.
The investigation into the office was sparked by an anonymous report about inspections not being done properly after an incident in April at one of the child care facilities in which a toddler and a 4-year-old girl walked away from the center and were gone for at least a half hour before being found by a neighbor, the News-Journal reported.
In response to a public records request, preliminary reports by DCF licensing staff released to the Daytona Beach News-Journal show that:
- Eighty-eight child care centers or homes providing child care did not have current background checks in their files.
- Fifteen checks and a money order were found in drawers or files that had either not been sent to the Florida Department of Law Enforcement (FDLE) for background checks or were not cashed by DCF for license renewals.
- In some cases, child care centers thought the employees had an approved background checks because the money was sent to DCF.
While the News-Journal reports that DFC officials have not found any indication that child safety was compromised, DCF officials have stated that not all background screenings have been completed and that it is “a work in progress.”
For more information on background checks, please visit Employment Screening Resources (ESR) at http://www.esrcheck.com.
by Thomas Ahearn, ESR News Staff Writer
A case against a Kentucky nursing home may reveal holes in laws meant to protect nursing home residents since the state only requires criminal background checks for employees caring directly for nursing home residents but not background checks for nursing home support staff like maintenance workers.
According to a story by the Lexington (KY) Herald-Leader posted on Kentucky.com, a lawsuit filed against a nursing home in the state indicates that the nursing home hired a maintenance worker without a criminal background check after he had been arrested for sexual solicitation of a minor and retained his services even after he was placed on Kentucky’s sex offender registry.
The Herald-Leader reported that a former nurse’s aide at the nursing home said in a lawsuit filed that the maintenance worker in question — who underwent a credit check but not a criminal background check — sexually harassed her and stalked her before he was suspended by the nursing home. The maintenance worker’s status as a registered sex offender also put nursing home residents at risk, according to the lawsuit.
While there are no state law specifically calls for criminal background checks for all nursing home employees, there are state and federal regulations that nursing home facilities shall not employ individuals who have been convicted of abusing, neglecting, or mistreating individuals, according to the Herald-Leader.
In addition, the Herald-Leader reports that the lawsuit alleges that nursing home officials could easily have found out about the maintenance worker’s past before they hired him, since the Kentucky State Police had announced that the man had been arrested for unlawful use of electronic means to induce a minor in January 2008 before the facility hired him in July 2008.
The founder of an advocacy group called Kentuckians for Nursing Home Reform is quoted in the story as saying he thinks all nursing home employees should have criminal background checks.
Employment Screening Resources (ESR), a leading provider of background checks, believes due diligence for an effective Safe Hiring Program (SHP) requires that all employees at a business who may have contact with co-workers and the public, from Management to maintenance, should undergo criminal background checks.
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 about background checks in general, including background checks for nursing home employees, visit ESR at http://www.esrcheck.com.
By Thomas Ahearn, ESR News Staff Writer
Since understanding the “Three-Day Rule” and determining the hire dates for completing Form I-9 and E-Verify are not always clear and simple for employers, the U.S. Citizenship and Immigration Services (USCIS) has added an important update to their E-Verify website that attempts to clarify both the definition of a “hire date” and the timing requirements for when employers are expected to complete Section 2 of the Employment Eligibility Form I-9 and when to E-Verify employees.
While there is much overlap between Form I-9, Employment Eligibility Verification, and E-Verify requirements, USCIS addressed the “Three-Day Rule” as it applies to E-Verify after receiving lots of questions about what to select for the E-Verify hire date with the addition of the “Three-Day Rule” screen in the redesigned E-Verify website. According to the “Three-Day Rule” as explained on the USCIS website, an E-Verify case is considered late if an employer creates it later than the third business day after the employee first started work for pay.
According to the USCIS E-Verify website, to comply with the law for completing the Form I-9 and E-Verify:
- The earliest employers may complete Form I-9 is after the employee has accepted an offer of employment.
- The latest employers may complete Form I-9 is the third business day after the employee started work for pay.
- The earliest employers may create a case in E-Verify is after the employee has accepted an offer of employment and the Form I-9 is complete.
- The latest employers may create a case in E-Verify is the third business day after the employee started work for pay and the Form I-9 is complete.
Under these new guidelines, the USCIS has effectively extended the Section 2 and E-Verify deadline by a full business day, from three days to four since the first paid day of work is not included in the “Three-Day Rule.” For further clarification, the USCIS E-Verify website even gives the following example:
If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). The first day the employee starts work for pay is not included in the three business day calculation.
In addition, the USCIS realizes the term “hire date” in E-Verify is confusing because its meaning can vary depending on when the employee starts work for pay and the date the case is created in E-Verify. In determining the E-Verify “Hire Date,” the USCIS suggests the following:
- If an employee creates the case in E-Verify before the employee starts work for pay, then the E-Verify hire date is the date the employee created the case in E-Verify.
- If an employee creates the case in E-Verify on or after the employee starts work for pay, then the E-Verify hire date is the date the employee started work for pay.
USCIS considers an E-Verify case late if an employer creates it later than the third business day after the employee first started work for pay. When asked why their E-Verify case is late, employers can either select one of the following reasons provided or enter their own:
- Awaiting Social Security Number
- Technical Problems
- Audit Revealed that New Hire Was Not Run
- Federal Contractor with FAR E-Verify Clause verifying an existing employee (This reason is displayed only to an organization enrolled in E-Verify as a Federal Contractor with FAR E-Verify Clause.)
- Other (If this reason is selected, employer must enter a reason in 200 or fewer characters and should not include any personally identifiable or sensitive information such as Social Security numbers).
Employment Screening Resources (ESR) — a national background screening provider and authorized E-Verify Designated Agent — can help employers virtually eliminate I-9 form errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce. For more information about the E-Verify Electronic Employment Eligibility Verification system, visit http://www.esrcheck.com/formi9.php.