All posts by Les Rosen

April 2010 Jobs Report Shows Highest Labor Force Increase in Four Years

By Thomas Ahearn, ESR Staff Writer

In yet another possible sign that the “Great Recession” may be ending and that the “Great Recovery” has begun, U.S. employers added significantly more jobs to payrolls in April, the largest number of jobs added to the labor force since March 2006. The economy has now added jobs in five of the last six months following nearly two years of job losses.

According to the Bureau of Labor Statistics (BLS) April 2010 Employment Situation report, nonfarm payroll employment rose by 290,000 in the month, with the job gains occurring in manufacturing, professional and business services, health care, and leisure and hospitality. Overall, there has been a gain of 573,000 jobs since the start of the year.

  • Manufacturing added 44,000 jobs in April, the biggest one-month gain in the sector since August 1998, and factory employment has risen by 101,000 jobs since December 2009.
  • Professional and business services employment rose by 80,000 jobs in April, and employment in this industry has increased by 330,000 jobs since September 2009.
  • Health care employment grew by 20,000 jobs in April, including 6,000 in hospital jobs. Over the past year, health care employment has increased by 244,000 jobs.
  • Leisure and hospitality employment rose by 45,000 jobs over the month, much of this increase occurring in accommodation and food services, which added 29,000 jobs. Food services employment has risen by 84,000 over the past 4 months.
  • Federal government employment also rose in April, reflecting the hiring of 66,000 temporary workers for the once-in-a-decade 2010 census.

Despite the sharp increase in the labor force, the unemployment rate edged up to 9.9 percent, up from 9.7 percent, and the number of unemployed persons rose to 15.3 million from 15.0 million. However, according to the BLS report, the rise in the unemployment rate was due to a higher number of job seekers “ an increase of 805,000 in April alone who had previously been discouraged and dropped out of the job market but are now looking for work again.

With more employment and more people looking for employment, there is a need for more employment screening. For information on an effective employment screening program, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

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

Tennessee Considers Background Checks for Ice Cream Truck Drivers

By Thomas Ahearn, ESR Staff Writer

I scream, you scream, we all scream for ice cream – but how many people consider the possible criminal backgrounds of the ice cream truck drivers bringing that delicious treat to screaming kids waiting by the side of the road on hot summer days?

Apparently lawmakers in Tennessee do, according to a story in The Commercial Appeal in Memphis, TN, enough to decide to spend the summer studying whether neighborhood ice cream truck drivers in the state should undergo background checks to weed out sex offenders who could prey on children, and how these background checks should be run.

According to the article, a summer study committee will work out matters regarding the proposed legislation such as who should pay for the background checks, who should conduct the background checks, and penalties for violations.

One state representative, a former county sheriff, was quoted in the article as saying that background checks were needed because some of the people on ice cream trucks were pedophiles and driving an ice cream truck was “a great way for them to be around kids.”

Other committee members argued current law already deals with “the threat of sex offenders driving ice cream trucks through neighborhoods while playing nursery rhymes or children’s jingles,” the Commercial Appeal reported, since sex offenders are required to register with local law enforcement officials when they move into a neighborhood.

According to the Commercial Appeal, Tennessee state law states it is a violation for sex offenders to “engage in employment, a profession, occupation or vocation, regardless of whether compensation is received, that the offender knows or should know will cause the offender to be in direct and unsupervised contact with a minor.”

Violation of the law is punishable by nearly one year in jail and a fine up to $2,500.

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

Source:

http://www.commercialappeal.com/news/2010/may/04/tennessee-lawmakers-study-background-checks-ice-cr/

USCIS Issues Revised FAQ for E-Verify Federal Contractor Rule and FAR Clause

By Thomas Ahearn, ESR Staff Writer

The U. S. Citizenship and Immigration Service (USCIS) has issued a revised list of Frequently Asked Questions (FAQ) regarding the E-Verify Federal Contractor Rule and the Federal Acquisition Regulation (FAR) clause calling for the use of the E-Verify verification system. The revised FAQ can be reached by clicking here.

The E-Verify Federal Contractor Rule requires the insertion of the FAR E-Verify clause into applicable Federal contracts, which requires Federal contractors to use E-Verify to verify the employment eligibility of their new hires and all employees (existing and new) assigned to a Federal contract and performing work under a qualifying Federal contract.

E-Verify – a free, Internet-based system operated by the Department of Homeland Security (DHS) and USCIS in partnership with the Social Security Administration (SSA) – allows employers to verify the employment authorization of their employees by checking information provided by employees on their Employment Eligibility Verification (I-9) Form electronically against records in DHS and SSA databases.

The FAQ on the USCIS website address what Federal contracts are affected by the FAR clause, what employees are impacted by the FAR clause, information regarding the initiation of E-Verify inquiries, and how the FAR clause impacts subcontractors.

The FAQ explains what types of Federal contracts are exempt from the E-Verify Federal Contractor Rule. A contract is considered exempt if one or more of the following apply:

  • It is for fewer than 120 days;
  • It is valued at less than $100,000, the simplified acquisition threshold;
  • All work is performed outside the United States, and/or;
  • It includes only commercially available off-the-shelf (COTS) items and related services.

According to the USCIS website, a COTS item is a commercial off-the-shelf item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that is available in the commercial marketplace.

Employers may also use an ‘E-Verify Designated Agent’ to be their E-Verify service provider and assist them in maintaining Form I-9/E-Verify compliance. The Designated Agent uses E-Verify to verify the employment authorization for their clients’ employees. 

Employment Screening Resources (ESR) – a national background screening provider and authorized E-Verify Designated Agent – can help employers virtually eliminate SSA mismatch letters, improve the accuracy of wage and tax reporting, protect jobs for authorized workers, and help maintain a legal workforce. For more information about E-Verify, please visit http://www.esrcheck.com/formi9.php.

Source:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=30edde1d67ee4210VgnVCM100000082ca60aRCRD&vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD

Credit Reporting Agency Fights to Preserve Use of Credit Checks during Employment Background Checks

By Lester Rosen, President of ESR & Thomas Ahearn, ESR Staff Writer

With 15 million workers currently unemployed according to recent Department of Labor statistics, it has been argued that job applicants risk getting caught in a Catch-22 situation where they have bad credit because they cannot get jobs but cannot get jobs because they have bad credit.

As a result, states such as Oregon, Washington, and Hawaii have already limited the use of credit reports for employment screening by enacting bans on credit checks during background checks unless the information directly relates to occupational qualifications.

However, the Chicago Tribune reported that one of three major credit bureaus that collect financial information on Americans – Chicago-based credit reporting agency TransUnion  is fighting to preserve the use of credit checks during employment background checks.

TransUnion defends credit checks as a way for employers to protect themselves against theft and fraud, since employees with poor credit history may be more likely to engage in unethical or illegal behavior, especially in jobs where they are involved with finances, according to the Tribune article.

Along with the other two large credit bureaus Equifax and Experian, TransUnion helps employers, financial institutions, landlords, among others to use credit information to guide their decisions about hiring, extending credit, lending money, and housing.

Although a recent survey from the Society for Human Resource Management (SHRM) found that 60 percent of employers performed credit background checks on all job candidates or on selected job candidates, that statistic can be misleading since of the firms that use credit checks, it appears the use is generally selective. The survey revealed that 47 percent of the employment credit reports were used only on selected candidates for positions that presumably involved access to assets, cash, or sensitive information.  Only 13 percent of employers used credit background checks across the board on all job candidates.  In addition, 40 percent of employers surveyed did not conduct any credit background checks. It could be argued that the alarm over the use of credit reports has been exaggerated.

In addition, given the fact that often times past employers will not give a reference beyond dates of employment and job title, employers may well be in need of additional tools when hiring for sensitive positions. 

Critics find credit checks during employment background checks discriminatory and bills restricting the practice have been introduced in the U.S. House of Representatives and many states. Even some background check firms advise caution with credit checks.

Employment Screening Resources (ESR), a leading national online background check firm, recently released its third annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010, which identified new trends making a difference as well as old trends that have evolved as the screening industry matures.

The first of the Top Tentrends ESR tracked for 2010 is the increased focus on whether credit reports used during background checks are discriminatory. ESR advises employers to approach credit reports with caution during background checks and to articulate a clear rationale as to why a credit report is related to a particular job. Employers should also be aware of the potential for errors in credit reports since information could be incorrectly reported or the applicant may be the victim of identify theft which can lead to false data.

On the other hand, ESR warns that hiring an employee that handles money, makes financial decisions, or has access to private data without running a credit reports during background checks could result in allegations of negligent hiring if a theft occurs.

Lester S. Rosen, the CEO of Employment Screening Resources, was quoted in an article on MSNBC as saying that “if a new worker is to have access to large amounts of company cash or financial systems, it’s only prudent for a hiring manager to find out if the applicant has a pile of unpaid debts.

Rosen went on to say: “If an employer hires an embezzler and did not do a credit report in a sensitive position and the employer was then sued for negligent hiring, the argument would then be: How stupid were you for not running a credit report?”

Though many employers run credit checks on some applicants, relatively few are turned down for a job because of bad credit, according to ESR’s Rosen. “It takes something pretty horrendous in the credit report to reverse a decision that they are vested in,he says.

One more thing to keep in mind, according to Rosen, is that it is an urban myth that employers receive a “credit score,” the three-digit numerical expressions  such as FICO based on statistical analysis of a consumer’s credit files. Employment credit reports  which are different than credit reports used for lending  do not contain a credit score.

For more information on credit reports used during background checks, read a white paper prepared jointly by LexisNexis and Employment Screening Resources (ESR) , “The Use of Credit Reports in Employment Background Screening:  An Overview for Job Applicants“ at http://www.esrcheck.com/docs/credit_report_whitepaper.pdf.

Sources:

http://www.chicagotribune.com/business/ct-biz-0429-credit-checks-transunion–20100428,0,5056644.story

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

http://www.esrcheck.com/wordpress/1429/shrm-surveys-reveal-3-out-of-4-businesses-conduct-reference-background-checks-and-criminal-background-checks

http://www.esrcheck.com/wordpress/1548/new-oregon-law-prohibits-use-of-credit-history-of-job-applicants-for-employment-screening

http://www.msnbc.msn.com/id/35512038/ns/business-eye_on_the_economy/

http://www.esrcheck.com/wordpress/1237/employment-screening-resources-releases-third-annual-trends-for-pre-employment-background-screening-in-2010 

 http://www.esrcheck.com/wordpress/1139/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory

Arizona Governor Signs Controversial Immigration Law that Includes Strict Use of E-Verify by Employers

By Thomas Ahearn, ESR Staff Writer

Arizona Governor Jan Brewer has signed a controversial law that would require police officers to question anyone that they have reason to believe may be in the country illegally, while also directing employers to keep verification records of employee work eligibility through the E-Verify electronic eligibility verification system and make it a felony crime for failing to use E-Verify.

As reported on AZCentral.com, the signing of Senate Bill 1070 into law has led to angry protests, threats of future legal challenges, and even criticism from President Barack Obama himself. The Arizona Senate had passed the bill a few days before the Governor had signed it. The law should go into effect in early May, according to AZCentral.com, 90 days after the current legislative session ends.

While the bill addresses a range of issues relating to illegal aliens and illegal immigration – including making it a crime for illegal immigrants to work or solicit work in Arizona and requiring Arizona law enforcement to make a reasonable attempt “when practicable” to determine the immigration status of a person if reasonable suspicion exists that the person is in the U.S. illegally – Senate Bill 1070 also:

  • Directs employers to keep verification records of their employees’ work eligibility through E-Verify, and;
  • Establishes a class 3 felony for failing to: a) verify employment eligibility through E-Verify or b) keep records of verifications.

Besides the strict new laws on E-Verify usage, Senate Bill 1070 also “stipulates that an employer is not entrapped in an investigation if the employer was predisposed to knowingly or intentionally employ an unauthorized alien and law enforcement officers or their agents merely provided the employer with an opportunity to do so” and “states that it is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identities.”

The U.S. Immigration and Customs Enforcement (ICE) – an investigative branch of the Department of Homeland Security (DHS) and the primary authority for enforcing immigration laws – has recently focused more on worksite audits of employee records, including the Employment Eligibility Verification form (“I-9 Form”), as a way to curb illegal immigration.  Employers can risk possible fines, penalties, and jail time if they do not comply with certain I-9/E-Verify regulations.

Employment Screening Resources (ESR), an authorized E-Verify Designated Agent, can assist employers in virtually eliminating SSA mismatch letters, improving the accuracy of wage and tax reporting, protecting jobs for authorized workers, and in maintaining a legal workforce. For more information about E-Verify, please visit http://www.esrcheck.com/formi9.php.

Sources:

http://www.azcentral.com/news/articles/2010/04/23/20100423arizona-immigration-law-passed.html

http://www.azleg.gov/legtext/49leg/2r/summary/s.1070pshs.doc.htm

http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

EEOC Warns Employers of Increase in Discrimination Lawsuits Based on Background Checks

By Thomas Ahearn, ESR Staff Writer

As a recently filed lawsuit alleging one of the largest management consulting firms in the world conducted discriminatory background checks against African-Americans and Latinos shows, employers need to fully understand the U.S. Equal Employment Opportunity Commission (EEOC) policies regarding the use of background checks during the pre-employment screening process – or face the consequences in court.

Due to an increase in discrimination lawsuits such as this, the EEOC has decided to warn employers about background check practices that could get them in trouble. The agency designed a program to combat discriminatory practices tied to background checks called E-RACE (Eradicating Racism And Colorism from Employment) after recently noticing a steep climb in complaints from job applicants who claimed they were unfairly excluded from employment because of information – such as criminal records and poor credit ratings – that appeared on background checks. African-American and Hispanic males in particular, who according to statistics usually have higher arrest rates and lower credit scores than white males, were able to show the EEOC that the criteria used during background checks had a negative impact on their hiring opportunities.

The EEOC has defined two background check practices in particular that have caused – and will continue to cause – the largest legal risk for employers:

  • Blanket policies against hiring anyone with a criminal record or poor credit score.
  • Failing to show the correlation between background checks and the job itself.

According to the EEOC, even if the agency takes a discrimination charge that does not necessarily mean that the government is accusing an employer of discrimination. It is simply the EEOC’s job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred if applicants or workers charge that an employer has allegedly discriminated against them.

In addition, according to the “Employers” section of the EEOC website, the agency enforces Federal laws prohibiting employment discrimination that protect employees and job applicants against employment discrimination when it involves:

  • Unfair treatment because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
  • Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability.
  • Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

The EEOC and the courts do recognize that some information uncovered in background checks does provide insight on an applicant’s suitability in certain fields of employment. These instances could include jobs in which applicants would have close contact with customers, handle cash, drive vehicles, and deal with minors.  Employers need to show these correlations between background checks and the suitability for the given job, and also ensure that their background check process does not routinely, even if unknowingly, give preference to white applicants while excluding African-Americans and Hispanics.

For more information about EEOC policies regarding discrimination during background checks for employment, visit Employment Screening Resources (ESR), a national pre-employment screening firm providing background checks, at http://www.esrcheck.com.

Source:

http://eeoc.gov/employers/index.cfm

http://eeoc.gov/laws/index.cfm

http://www.eeoc.gov/eeoc/initiatives/e-race/index.cfm

Arizona Senate Passes Tough Immigration Bill That Includes Stricter Rules on E-Verify Usage

By Thomas Ahearn, ESR Staff Writer

The Arizona senate has passed a controversial bill that – along with requiring law enforcement officers to question anyone that they have reason to believe might be in the country illegally – would direct employers to keep verification records of employee work eligibility through the government’s E-Verify electronic eligibility verification system and make it a felony crime for failing to verify employment eligibility with E-Verify.

According to a report on ABC15.com from Phoenix, AZ, Senate Bill 1070 now goes to Governor Jan Brewer, who can sign the bill into law or veto it and send it back to the legislature. Brewer has not yet taken a position on the measure championed by fellow Republicans.

While the bill addresses a range of issues relating to illegal aliens and illegal immigration, Senate Bill 1070 also calls for “Investigations of Employers” that, among other things:

  •  Directs employers to keep verification records of their employees’ work eligibility through E-Verify, and;
  • Establishes a class 3 felony for failing to: a) verify employment eligibility through E-Verify or b) keep records of verifications.

Besides the strict new laws on E-Verify usage, Senate Bill 1070 also “stipulates that an employer is not entrapped in an investigation if the employer was predisposed to knowingly or intentionally employ an unauthorized alien and law enforcement officers or their agents merely provided the employer with an opportunity to do so” and “states that it is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identities.”

The U.S. Immigration and Customs Enforcement (ICE) – an investigative branch of the Department of Homeland Security (DHS) and the primary authority for enforcing immigration laws – has recently focused more on worksite audits of employee records, including the Employment Eligibility Verification form (“I-9 Form”), as a way to curb illegal immigration.  Employers can risk possible fines, penalties, and jail time if they do not comply with certain I-9/E-Verify regulations.

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

Sources:

http://www.abc15.com/content/news/phoenixmetro/central/story/Arizona-Senate-passes-controversial-immigration/VNapFEWhCUKmnwrI1RAh3Q.cspx

http://www.azleg.gov/legtext/49leg/2r/summary/s.1070pshs.doc.htm

http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

Background Check Expert Lester Rosen Presents Webinar on How Social Media Use During Employment Screening Can Trigger Privacy Lawsuits

By Les Rosen, Employment Screening Resources

Lester Rosen, President of Employment Screening Resources (ESR), a leading international employment screening background check firm headquartered in the San Francisco area, will present a national webinar for a leading business information site on employment screening on Thursday, April 22, 2010 at 2:00 PM EST / 11:00 AM PST.

The webinar — How Social Media and Traditional Background Checks Trigger Privacy Lawsuits — is being presented by Business 21 Publishing, which provides multi-media corporate learning and employee training products. Participants in this 60-minute webinar will learn best practices to help screen employees thoroughly without violating the law.

In the webinar, Rosen — a nationally recognized expert on employment screening background checks — will address such topics as:

  • The pros and cons of using social media internet sites such as Facebook, MySpace, and Twitter and how privacy and discrimination laws apply.
  • What employers should do when they discover that a job candidate has a criminal record, a bad credit report or some other red flag.
  • The Title VII implications of background checks and credit reports.
  • The legal requirements under the Fair Credit Reporting Act (FCRA) and how state to state privacy laws also apply.
  • The legal risks associated with “one button” automated background check systems.
  • What applicants need to sign before and after the background check is complete.
  • How employers should deal with independent contractors or temporary workers.
  • Considerations when conducting International background checks.

“Hiring safe, qualified, and honest employees is mission critical for any business, and I am pleased to have the opportunity to help employers avoid the risks of a bad hire,” commented Rosen. “Recruiters and hiring managers also need to understand the potential liabilities that employers can face if employment screening is done incorrectly or unfairly as well.”

Mr. Rosen, who is also an attorney, is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, he is the author of the first comprehensive book on employment screening — “The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” — and also wrote an additional guide on the subject called “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 also 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.

For more information about the webinar How Social Media and Traditional Background Checks Trigger Privacy Lawsuits, please visit: http://www.b21pubs.com/p-892-how-social-media-and-traditional-background-checks-trigger-privacy-lawsuits.aspx. More information about Employment Screening Resources (ESR) can be found at www.ESRcheck.com.

Source: http://www.b21pubs.com/p-892-how-social-media-and-traditional-background-checks-trigger-privacy-lawsuits.aspx

Jury Finds Housing Authority Negligent in Murder of Elderly Woman after Tenant Background Check Misses Criminal Past of Neighbor

By Thomas Ahearn, ESR Staff Writer

In a story that shows the importance of using overlapping tools to do criminal background checks, a jury recently ruled that negligence by the Housing Authority in a North Carolina city led to an elderly woman’s death at the hands of her crack cocaine addicted neighbor in 2007.

A story on CharlotteObserver.com revealed that attorneys sued the agency on behalf of the 63-year-old woman’s estate after she was strangled in her apartment at a public housing complex for the elderly and disabled. Her 46-year-old neighbor – who reportedly had a history of violence, drugs, and mental illness – was later convicted of her killing.

Jurors awarded victim’s sons $132,000 over their claim of inadequate tenant screening after a background on the convicted killer missed several convictions for violent behavior in the man’s past. Jurors said they could not agree on a monetary amount, and the final figure was a compromise that was far less than the $10.4 million in damages the sons were asking for.

At issue in the trial was whether the Housing Authority properly screened the woman’s killer with a background check before it let him live in the apartment complex. The CharlotteObserver.com reported that the attorney for the woman’s estate argued that the Housing Authority violated its own procedures by doing only a North Carolina background check – not nationwide background check – on the woman’s eventual killer. The N.C. check missed violent crime and drug convictions in Maryland that would have prevented the man from living at the apartment complex.

The jury agreed, and CharlotteObserver.com quoted the foreman as saying that the just felt like the elderly woman’s murder could have been prevented with better background checks. The attorney also said he hoped the judgment would make the Housing Authority do more comprehensive background checks on tenants.

A tragic story such as this reminds employers – and landlords – of the importance of national multi-jurisdictional searches that can uncover criminal records that job applicants – or tenants – have in states other than the one in which they currently live and work.

Employment Screening Resources (ESR), a national pre-employment screening provider, offers a National Multi-Jurisdictional Criminal Database Search, which are comprehensive multi-jurisdictional and statewide searches that cover a much larger geographical area than traditional county-level searches. Such a search can provide potential leads as to other places to search.

However, ESR believes that since these databases have both pros and cons, it is critical to understand that:

  • 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.
  • Multi-jurisdictional and statewide databases searches are a research tool only and are not a substitute for a hands-on search at the county level under any circumstances.
  • Not all states have databases that are available to employers.  In some instances, the databases that are available have limited information.  Therefore the value of these searches in these states may be very limited.   
  • Some states that make official state police records or records directly form the court available.  However, the information may not be reportable under state or federal la for various reasons. 
  • Databases in each state are compiled from a number of sources and the 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. Any positive match MUST be verified by reviewing the actual court records.  Any lack of a match is not the same as a person being “cleared.”

More information on the pros and cons of multi-jurisdictional and statewide databases – including what information this search is based on, how criminal record “hits” should be reconfirmed to ensure accuracy, and how Sex Offender databases are derived from the state-maintained registry, is available on ESRCheck.com at:

Source: http://www.charlotteobserver.com/2010/02/10/1236243/jury-finds-housing-authority-negligent.html

Discrimination Lawsuit Shows Importance of Employer Policy on the Use of Criminal Records During Background Checks

By Thomas Ahearn, ESR Staff Writer

A recently filed class action lawsuit “ which alleges that one of the largest management consulting firms in the world conducted background checks that discriminated against African-Americans and Latinos“ 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.

According to a story on CNNMoney.com, the lawsuit accuses the firm of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even when the criminal history has no bearing on the individual’s fitness or ability to perform the job in question. CNNMoney.com reports that the lawsuit alleges the plaintiff had worked as a contract employee for more than a year when, in April 2007, the firm offered him permanent employment. This job offer was then withdrawn “ and the plaintiff’s employment as a contract worker terminated” after the results of a background check revealed that he had been convicted of vehicular homicide after driving while intoxicated a decade earlier.

The worker filed a Charge of Discrimination with the EEOC in November 2007 and the EEOC issued a “right to sue” letter to him on January 2010. The lawsuit, according to CNNMoney.com, seeks to force changes in the management consulting firm’s hiring and retention policies, practices, and programs, restore the worker and others like him to their positions at the company, front and/or back pay and benefits, and litigation costs.

Leading national online background check firm Employment Screening Resources (ESR) targeted the use of criminal reports in its recently released third annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010 that identifies new trends making a difference such as attorneys, including class action lawyers, focusing more on background checks and old trends evolving as the screening industry matures.

The first of the “Top 10 Trends” ESR will track closely in 2010 concerns the increased focus on whether both credit reports and criminal records promote discrimination. In October 2009, the EEOC filed a lawsuit against a national employer alleging that credit reports and criminal records were being used to discriminate against members of protected groups.

These recent actions should not come as much of a surprise to the background check industry, according to ESR, as there has been a steady drumbeat of concern about both credit reports and criminal records.  While the use of credit reports during background checks has been in the headlines recently due to the damage the economic downturn has done to the credit rating and finances of many job applicants, the use of criminal records during background checks is also coming under closer scrutiny. In 2009, New York passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on their merits.

ESR believe this lawsuit clearly shows why employers should be familiar with discrimination and the critical “No Automatic Disqualification Rule”  when it comes to the use of criminal records during background checks. This rule states that employers cannot deny employment automatically but need a business justification not to hire based upon criminal records. 

The EEOC has made it clear the automatic use of a criminal record without showing a “business necessity” can have discriminatory impact by disqualifying a disproportionate number of members of minority groups. The EEOC’s position when it comes to the use of criminal records: an employer’s policy or practice of excluding 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. Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII (the Equal Employment Opportunity law) in the absence of a justifying business necessity.

According to the EEOC, employers 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 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 rational, job-related reason why that person is unfit for that job.  Employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.

One area ESR think employers need to review their practices is with regards to using automated pass/fail scoring matrixes where job candidates are given a green (pass) light or red (fail) light.  That sort of automation where individuals are judged entirety by their membership in a particular category instead of their personal abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice.  This practice presents dangers to employers  both large and small  and they should not be engaging in automated decision making based on background checks. The final say should be left in the hands of human beings.

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.

Sources:

http://www.esrcheck.com/2010-trends-backgroundscreening-industry.phphttp://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records

http://money.cnn.com/news/newsfeeds/articles/prnewswire/DA83387.htm