All posts by Les Rosen

Bad weather can delay background checks

By Jim Crockett, Employment Screening Resources

The weather issues on the east cost can potentially delay background checks for candidates that include searches at courthouses that are snowed in.  For example, the  Philadelphia Courthouse has closed and will remain closed on Wednesday, February 10, 2010.  Even in jurisdictions where courts are open, court researchers may have difficulty getting to the courthouse for the onsite search.  

Employment Screening Resources (ESR)  is committed to providing its clients with the most accurate and up-to-date information, which typically means ESR criminal information comes directly from  the courthouse.  There are some courts that make their data available to ESR  online, and ESR only uses such sources if it is the functional equivalent of going to the courthouse (in other words, it would  be the exact same information as if ESR went physically to the courthouse).

Court finds that not hiring someone constitutes an adverse action for purposes of the Fair Credit Reporting Act (FCRA)

In a Court opinion filed December 30, 2009, the U.S. District Court for the Eastern District of Missouri ruled that not getting hired is an ‘adverse action’ as defined by the federal Fair Credit Reporting Act (FCRA), the law that governs background checks. 

In that case, the plaintiff that was representing himself filed legal papers alleging that his report contained inaccurate/erroneous information that the employer and information providers knew would likely have an adverse impact on Plaintiffs ability to secure employment. The Plaintiff further alleged that he was not notified he was not being hired based upon he contents of a consumer report.  Continue reading

Genuine Fake Diplomas on the Rise

By Les Rosen, Employment Screening Resources

Getting a college diploma apparently no longer requires years of hard work, taking tests, paying tuition or even reading a book. Why bother going though the formalities when all a person needs is a credit card and a web browser in order to buy an authentic looking diploma that mimics real colleges, universities and even high schools across the U.S. Go to any search engine and run keywords such as “fake Diploma” and anyone can instantly “graduate” from nearly any school in America with a very handsome and authentic looking diploma suitable for hanging. 

In fact, the author’s dog received a very genuine-looking diploma in business administration in 2005 purportedly issued by the University of Arizona through an online diploma-selling service.  (The author picked on the University of Arizona only because a family member was attending Arizona State.  Since the author is a UCLA alumni, the author considered getting his dog a dipolma from USC as well, which was also an option.)

One such website advertises that it creates, “very realistic diplomas/transcripts. These diplomas/ transcripts are extremely high quality printed on official parchment quality paper. You can show your employer and they will never doubt that you indeed attended college. You will not find better quality anywhere!!!”

Some of these sites “officially” caution that the diplomas and transcripts are intended for “Novelty and Entertainment Use Only.” However, the fake documents you receive do not have a disclaimer written any place on them.

With statistics showing that resume fraud is a significant issue, employers must be very cautious about accepting a physical diploma as proof of a degree. When presented with a physical diploma or transcripts, employers should fax a copy to the school to confirm its authenticity. Most background firms can tell stories of faxing copies of degrees, supplied by the applicant, to high schools and colleges only to be told the degree is a fake.

These fakes have not entirely escaped official attention. In Illinois, the legislature passed a law in 2004 aimed at addressing educational fraud. It is now a Class A Misdemeanor to knowingly manufacture or produce for profit or for sale a false academic degree, unless the degree explicitly states “for novelty purposes only.”

Also in  2004, a scandal erupted after an internal government watchdog agency reported that 28 senior officials who were then serving in the federal government had degrees from diploma mills or unaccredited universities. To address this problem and help employers sort the good from the bad, the U.S. Department of Education established a Web site that lists schools with legitimate accreditation. See:http://www2.ed.gov/admins/finaid/accred/accreditation_pg4.html  The other accepted organization that can accredit the accreditors is the Council for Higher Education Accreditation (CHEA) found at www.chea.org,

As with other types of fraud, the criminals are always adapting. In response to the government’s efforts, degree mills have created fake agencies to accredit the fake degrees. 

Some web sites will even provide a phone number so an employer can get a fake verification of a fake degree.

Anytime an applicant claims to have earned a degree—and especially when that credential is a requirement for the job—an employer needs to take steps to ensure not only that the applicant went to the school and received the degree, but that the school is legitimate and that the degree represents genuine educational accomplishment.

ESR takes extensive measures to guard against educational fraud.  ESR first ensures that any school is on a “white list” of legitimate schools that is accredited by a recognized accreditation agency.  Unlike much of the rest of the world where the government is the accrediting agency, in the US accreditation is a complicated private/public partnership.  If the school is questionable, ESR accesses a number of lists maintained by different organizations of diploma mills.  However, diploma mills are a moving target and easy to start, so no list of diploma mills can ever be complete and up-to-date.  If a school is not on either list, ESR conducts an inquiry to determine the school’s status.

Crimes Are Classified into three categories

By Les Rosen, Employment Screening Resources

Under the laws of most states, crimes are generally placed into one of three categories:

A Felony is a serious offense that is punishable by a sentence to a state prison. Note the use of the word punishable, as opposed to actually punished. The distinction is important because a person can be convicted of a felony but may not go to prison. How does that work? Depending upon the state and the crime, there are certain felonies wherein a judge can give a defendant felony probation. This typically occurs with a relatively less-serious felony committed by a relatively less-serious offender. An example may be a first time felony drug offender convicted of a less-serious drug offense such as possession of a small amount of drugs for sale.

If a defendant receives felony probation, the court can still sentence him to custody but in the local county jail. If the defendant violates his probation, the court then has the option of sending the defendant to state prison. That obviously creates a great deal of incentive for a felony defendant to not violate probation.

A Misdemeanor is a less serious offense that is only punishable by local jail time at the county level. Typically a misdemeanor may be punishable by up to one year in the county jail in the custody of the local county sheriff and a fine up to $1,000. A court can also impose terms and conditions of probation such as discussed above.

An Infraction is a public offense punishable only by a fine. This is typically a traffic violation such as an illegal left turn, speeding, or seat belt not fastened.

However, nothing in hte law is really that simple.  There is a fourth category — Wobblers.  That term designates an offense that can be either a misdemeanor or a felony offense, depending upon how the prosecuting attorney chooses to file the charges or how a judge views the offense or the offender. In California for example, a commercial burglary can be either a misdemeanor or a felony.

Finally, in some states, such as New York or New Jersey, there are public offenses that by statue are not considered to be criminal, even though in most states the act would be classified as a crime.

Date of Birth Information, Age Discrimination and Background Checks

By Les Rosen, Employment Screening Resources

Most authorities agree that any information tending to reveal a job applicant’s age should not be requested on an employer application form or during an oral interview. Asking for date of birth during the selection process could violate the federal Age Discrimination in Employment Act of 1967 as well as various state civil rights laws. Asking for date of birth tends to deter older applicants from applying.

If the application material contains date of birth information, the inference is that a firm may be methodically denying consideration of older workers. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving information that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Fair Employment and Housing (DFEH) lists specific age questions that cannot be asked. (See: http://www.esrcheck.com/services/legal_illegal_questions.php)

However, special problems are faced when an applicant’s date of birth is not available for background screening. When researching court records, the date of birth is probably the most important factor needed to identify an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.

Under the Federal Age Discrimination Act, there is not an absolute prohibition against asking for date of birth or age. That is a common misconception among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. However, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.

According to a Fact Sheet prepared by the EEOC in 2008:
“Pre-Employment Inquiries:

The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.” See: http://www.eeoc.gov/facts/age.html

This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).

In order to avoid any liability for age discrimination, some employers send information to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a “date of birth workaround” where somehow the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It creates an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.

A better solution is to request date of birth information on the screening firm’s form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring authority in order to avoid any suggestion that age information was used in any way during any step of the hiring process.

It is recommend that employers keep the screening forms and reports separate from the employee’s personnel file or application papers. Employers can have someone in the office physically separate the screening firm’s form from the application so there is no question that a decision maker has not viewed the date of birth before the applications are reviewed.

In addition, to further protect the employer, the consent form used by the screening company should have a statement that the information is used for identification only and that without such information the screening process may be delayed.

As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.

To address any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the appropriate local or state authority or federal EEOC office.
For more information on background checks and employee screening, see: Employment Screening Resources.

SimpleHR and Employment Screening Resources Announces Partnership

 By Jared Callahan, Employment Screening Resources

SimpleHR, the leading HR Software globally for small business, and Employment Screening Resources , a leading national employment screening background checking firm announced they have partnered for the purpose of providing additional industry leading human resources solutions.

SimpleHR is a comprehensive human resources software solution for small to mid-sized business and was recently voted #1 on CNN’s List of Top 5 HR Tech Products for Small Business.  Employment Screening Resources is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally. ESR specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround.

“We are very pleased to have the opportunity to partner with SimpleHR,” commented Lester Rosen, President of Employment Screening Resources and author of the Safe Hiring Manual, the first comprehensive book on background checks. “Background screening is a critical part of the process of identifying the best employees and is a perfect complement to the state-of-the-art solution offered by SimpleHR.”

 

Commenting on the partnership, SimpleHR’s CEO, Edward Samadhin added that “combining SimpleHR software with Employment Screening Resources means that companies can now hire the best people and use the software to effectively manage top performers.”

About SimpleHR: 

SimpleHR (http://www.simplehr.ca) is the world’s leading HR software for small business and is sold in over 25 countries globally.  Contact Tony Brown for more information at: tbrown@ajivacorp.com

About ESR: 

Employment Screening Resources (http://www.esrcheck.com) is a safe hiring partner that provides REAL background checks with no short cuts. ESR specializes in legal compliance and provides industry leading technology, service, accuracy and turnaround.   With ESR employers get backgrond check experts protecting their workplace.  The book, The Safe Hiring Manual, is available at http://www.backgroundchecktraining.com/Safe-Hiring-Manual.asp Contact: Jared Callahan for additional information at 415-898-0044 or at: jcallahan@ESRcheck.com

Bank Security site interviews background check expert Lester Rosen

By Jim Crockett, Employment Screening Resources

BankInfoSecurity.com, a leading information portal about Banking Regulations, has released an interview with employment screening background check expert Lester Rosen on the top ten trends in due diligence and background checks for 2010. The article is located at: http://www.bankinfosecurity.com/articles.php?art_id=2121

Senior Management level Bankers, IT Professionals, and Banking Personnel use BankInfoSecurity.com learn about Banking Regulations, Industry News, Events, and opinions.

The interview, conducted by on January 28, 2010 by Editorial Director Tom Field, reviews issues banks and financial institutions need to consider in 2010 to hire safe, qualified and honest employees.

  A downloadable audio version is available at:  http://www.bankinfosecurity.com/podcasts.php?podcastID=418

The interview reviews current hot issues, such as limitations on credit reports, the use of social networking sites and international background checks.  Also covered are areas such as privacy and data protection for the banking industry, as well as issues related to fabrication of employment and past education credentials.  

Employment Screening Resources has released its third annual top ten trends for 2010 at:  http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php

Employment Screening Resources Releases Third Annual Trends for Pre-Employment Background Screening in 2010

By Les Rosen, Employment Screening Resources

Employment Screening Resources (ESR) a leading national employment screening firm based in the San Francisco area, has released its third annual Top Ten Tends in Screening and Hiring for 2010.

ESR has identified new trends that are starting to make a difference, as well as old trends that have evolved as the screening industry matures and as plaintiff’s attorneys, including class action lawyers, have started to focus on background checks.  In 2009 for example, ESR noted that the use of social networking sites as a hiring tool would merely be a “hot topic.” In 2010, the trend has been upgraded to concerns over the potential for litigation alleging the unfair use of social networking sites.

Additional forces that will shape the screening industry and hiring in 2010 are advancements in technology as well as the constant struggle to balance privacy and fairness with security and due diligence.  For instance, the ease with which criminal records can be aggregated conflicts with the laws against the discriminatory use of criminal records.

Another issue related to the industry maturing is the proliferation of fly-by-night background check sites that have jumped on the screening bandwagon to make a quick buck, often using fear tactics or the lure of getting “inside information.”  Of course, legitimate employers understand that employment checks are a professional service that is heavily legally regulated.  In fact, concerns over accuracy and compliance with the requirements of the federal Fair Credit Report Act (FCRA) are likely to cause an increase in lawsuits and class actions in 2010.
 
Other trends are related to privacy, government-mandated screenings, and the emergence of best practice for international background checks. An issue related to the recession is problems associated with fraudulent educational and employment claims.

One very positive development that will help employers in 2010 is that the National Association of Professional Background Screeners (NAPBS) has been firmly established as the voice of the screening industry, and is very pro-active in promoting best practices.

“Employers that do not exercise due diligence to weed out potential bad hires are certainly taking an unnecessary risk and exposing a business to serious legal and financial consequences,” said Lester S. Rosen, attorney at law and founder of ESR and author of two books on background screening.  “On the other hand, an employer also faces a risk if they are not using appropriate tools and do not appreciate that, as with all matters related to employment, this area is heavily legally regulated.” 

The trends are reviewed at: http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php

The top trends are:

1.  Increased focus on whether the use of credit reports and criminal records are discriminatory. 
2. More lawsuits including class action litigation over accuracy, privacy, and consumer rights.
3. Pressure on privacy and data protection including the physical location of data.
4. The battle over databases will continue with the  latest wrinkle being the proliferation of cheap “do-it-yourself” websites and even apps for smart phones. 
5. Lawsuits for unfair use of Social Networking Sites may arise.
6.   Increased technology will bring about the end of paper and faxing for employment screening.
7.  An increase in fraudulent employment and educational claims due to the pressure of the recession.  
8.   I-9 and other government requirements will grow.
9.  Screening will expand beyond new employees to vendors and others on premises and even consumer-generated checks.
10.   International screening will be under more scrutiny and best practices will start to emerge,
11.   Bonus Trend:   The emergence of the National Association of Professional Background Screeners (NAPBS) as the voice of the industry and the continuing efforts to establish best practices

More information on background checks and employee screening is at: www.ESRcheck.com.

Employment Screening Resources (ESR) Releases New Resource Center for “All Things Background Checks”

By Jared Callahan, Employment Screening Resources

Employment Screening Resources (ESR), a leading national employment screening firm announced today the release of a Resource Center on its web site, containing “All Things Background Checks.” 

The new feature is intended to provide one  centralized location for ESR clients to keep current on the critical task of hiring a workforce that is safe and effective.  The site also allows Employers, Human Resources and Security Professionals, Recruiters and Job Applicants to locate resources on screening and to keep current on evolving issues affecting hiring by going to just one site.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally.  The firm specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround. 

The new Resource Center starts with twelve icons, each directing users to a different area, including sections on whitepapers by ESR, Legal Resources, books, courses and even a section for job applicants.  One of the features includes access to ESR’s proprietary summary of staff opinion letters issued by the Federal Trade Commission.  The ESR blog, which is updated frequently, ensures that users of the site are updated on the latest trends and legal developments when it comes to safe hiring.  

“We are very pleased to have the opportunity to provide this critically important information to employers and consumers,” commented Jared Callahan, Director of Marketing, and a national speaker on topics related to safe hiring.  “Background screening is a critical part of the process in identifying the best employees and with this new Resource Center, employers may simply go to just one site to find the information they need.”

See: http://www.esrcheck.com/Resources/

International screening will be more prevalent

By Les Rosen, Employment Screening Resources

2010 Trends in Screening – Trend Ten:  International screening will be more prevalent 

Given the mobility of workers backcross international borders, international background checks have presented challenges for employers. There are 192 countries in the world (using the United Nations membership list). That means that there is a great deal to keep track of. Every country of course has its own system and rules. Added to that are international data and privacy protection issues. In the past. Some employers have avoided international background checks due to the perceived difficulty. Due to the number of resources now readily available, an employer that fails to include an international dimension to their screening could well find that they are not exercising due diligence in hiring when it come to applicants that have spend time outside of the United States. 

However, international screening is more complicated then domestic U.S. screening. The complications are compounded by the fact that different screening organizations are giving information to employers that appears to be contradictory. Some firms say certain countries do not have criminal records available, while another firm may disagree. Some firms say that a special release is needed whereas other firms indicate that for a number of countries that no additional releases are needed beyond what the applicants normally signs. In this age of information, it is odd that there is still uncertainty as to exactly what criminal records are available from each country, and the nature and coverage of the records, such as whether the record is just for a particular court, city or state (or province), or nationwide. This coming year could well see the emergence of generally agreed upon best practices for international criminal checks.

For more informatin on international checks by ESR, see:  http://www.esrcheck.com/international.php

(Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010. This is the Tenth of the ten trends ESR will be tracking in 2010.)