All posts by Les Rosen

E-Verify Rules for Federal Contractors Officially in Effect

After a series of delays, the rules that require many federal contractors to utilize the E-Verify system to verify eligibility to work is in full force and effect as of September 9, 2009.  See:  http://www.dhs.gov/files/programs/gc_1185221678150.shtm#2 

According to a publication from the Department of Homeland Security:

  • E-Verify is a free, Internet-based system operated by DHS in partnership with the Social Security Administration. E-Verify allows participating employers to electronically verify their employees’ employment authorization. Results are returned online within seconds.
  • E-Verify is the best method for employers to verify the employment authorization of their employees. E-Verify: Virtually eliminates Social Security mismatch letters; Improves the accuracy of wage and tax reporting; Protects jobs for authorized workers; and Helps U.S. employers maintain a legal workforce.
  • More than 96 percent of E-Verify verification queries receive immediate employment authorization. Employees who do not receive instant authorization and choose to correct their government records to confirm their employment authorization must be allowed to continue to work during this process.

For more information on the use of E-Verify for federal contractors, see:  http://www.ilw.com/immigdaily/news/2009,0910-federalcontractors.pdf

ESR is authorized to act as a designated agent for employers to process E-Verify requests.  For more information, contact ESR customer service.  For more informatin on ESR E-Verify and I-9 services, see:  http://www.esrcheck.com/formi9.php

Employment Screening Expert Lester Rosen To Present at National Webinar on Latest Trends in Background Checks

Employment Screening Resources,  a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting a national webinar on November 18, 2009, on “New Legal Hotspots and Latest Trends in Employment Screening Background Checks.”

The webinar is sponsored by IOMA, an independent source of exclusive business management information for experienced senior and middle management professionals for 20 years.  Details are at:  http://www.ioma.com/webinars/1320.html?priority=SA05EM2

Mr. Rosen will be addressing how a company can avoid hiring dangerous, unqualified, or dishonest candidates, as well as the legal environment and latest trends surrounding background checks and employment. The webinar will also address concerns and confusion surrounding the use and over-use of Facebook, LinkedIn and other social networking sites, lawsuits looming over inaccurate background screening reports, and international background checks. 

 “I am very pleased to have the opportunity to review these cutting-edge employment topics that can help employers select the best candidates,” commented Rosen. “Exercising due diligence and staying out of court is mission critical for businesses of all sizes, and the IOMA format is an excellent way for employers to quickly review the latest trends, tools and legal developments.”

Mr. Rosen, who is also an attorney, is a nationally recognized expert on employment 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 Courts 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 its first co-chairman in 2004. 

More information about Employment Screening Resources can be found at www.ESRcheck.com

Social Media Policy Tips

Guest blog:  ESR invites partners to provide guest blogs.
The following is an articles on Social Medial Policy Tips: 

As Facebook, MySpace, LinkedIn, Twitter, YouTube and other such sites become more ingrained in our daily lives and habits, employers are scrambling to incorporate guidelines for responsible social media use into company policy manuals. But do all employers need a social media policy? Probably.

Your employees are already tweeting and posting comments, pictures and video. It’s up to you to outline how (or if) you want them to reference your company in such settings. Understanding that you may want to give employees some flexibility to use social media, you should at least consider some guidelines that protect your company.

Here are some dos and dont’s employers should consider when thinking about establishing social media policy.

DO:

DO: Create a social media policy that fits with your industry, philosophy and needs. Determine if your company can benefit from using social media outlets to communicate internally and with customers and/or vendors. Also consider the possible scenarios that could cause harm or damage to your company, customers and employees. This could include employees posting comments that may disparage your company reputation and/or posting negative comments about customers or clients.

DO: Make employees aware that they may be liable for content and information they post on blogs, social media sites and email. Let them know that their postings on public media sites may be monitored by the company and used as grounds for termination if it causes harm to the company, other employees and/or customers or vendors.

DO: Clearly communicate your social media policy to your employees. Include it in your new hire orientation, your employee handbook and, if applicable, your intranet and/or company blog. Have employees sign an “acknowledgement” that they read and received a copy of the policy. Ensure existing employees understand your policy in relation to proprietary and private information. Refer back to your existing confidentiality policy.

DO: Communicate how much time and when employees can access social media with company property or on their personal property during work hours. If you have a more flexible work environment, provide general guidelines (i.e. use the Internet within a reasonable amount of time without it affecting your work). Some companies may want to limit such activity to breaks (or not at all).

DON’T:

DON’T: Make subordinates feel uncomfortable with “friend requests.” Balance this issue carefully to determine how much you want to mix your personal social media information with your business. For example, don’t make employees feel coerced into accepting their boss as a “friend” or “follower.” Some employees may want to keep their personal pages separate from their work identity, while others could perceive favoritism if you connect with some but not others.

DON’T: Let employees post offensive or harassing language, pictures or video that impact or harm your business, customer or employees on public media sites. Employees may not be aware that some of their personal sites are open to the public, including customers, vendors, supervisors and coworkers. Your social media policy should refer to your zero-tolerance harassment policy. 

DON”T: Ignore the power of social media. Assign a person or department to monitor blogs and other social media sites to see what people are saying about your company. Respond to customer comments, deal with disparaging remarks and use it to see what others are saying about your competition. 

Brenda Gilchrist, SPHR, is principal/cofounder of The HR Matrix, a Santa Rosa-based full-spectrum management firm specializing in human resources, organization development and employee recruitment. Contact her at (707) 526-0877 or brenda@thehrmatrix.com .

Aviation Airlines Background Checks

A recent article in Aviation Week focused on airlines and background checks quotes employment Screening Resources on the importance of screening for the aviation and airline industry.   Â

The article is, “The Art of Background Checks,” by George C. Larson and can be found at: http://www.aviationweek.com/aw/generic/story_generic.jsp?channel=bca&id=news/bca1009p3.xml&headline=The%20Art%20of%20Background%20ChecksÂ

The article cites information provided by ESR:Â

Les Rosen, president and CEO of Employment Screening Resources, a number-one-rated firm in one survey of the field, says, “Basically, background screening in all industries underwent a dramatic increase after 9/11.” Rosen also notes an increase in media attention to child molestation and a growth since the 1970s in verdicts that find negligent hiring practices and subsequent liability.

“If you hire a person who is unsafe, unfit, unqualified or dishonest, you may be found negligent,” he says. Further, any employers filling high-risk occupations have a “duty of care in hiring to prevent foreseeable harm the higher the risk, the higher the duty. We consider aviation high-risk.”

As for the cost of background screening, it varies with the company doing it and the depth of investigation required by the employer. Rosen applies this rule of thumb: “An average background check is less than you pay an employee by 2 p.m. of their first day on the job.” Some aviation jobs may run higher, to about $150 to $200 to conduct a background screening for a pilot applicant.

Rosen questions whether operators would use the Internet to hire a babysitter and finds the idea of using it for blind searches equally preposterous, and the comparisons don’t stop there: “Searching on the Internet is like going to a junkyard to buy an airplane. The databases are not complete or up-to-date . . . . Databases are a lead generator, not a check.”

By contrast, he says ESR starts with a Social Security trace, which, together with work history, can lead them to relevant criminal records, of which there are roughly 300 counties keeping such records. Rural areas and smaller communities are less likely to have them.

“The privacy pendulum has swung in favor of applicants,” he says. “The basic reason for such a search is to seek to learn how people conducted themselves in public life. All the results are matters of public record. Nothing secret, nothing undercover. If a check comes out negative, applicants have the right to review the report if they think there’s a mistake. If so, we must reinvestigate. But the real issue for employers is if the background check is bad [ly performed], they can be sitting ducks for litigation. Juries ask, ‘Did the employer exercise due diligence?’ “

ESR performs aviation record searches under the FAA criteria described in PRIA, including an FAA records check covering medical certificate issue date, class and limitations, airman certificate level, category, class and type, and finally, any closed FAA enforcement actions resulting in a violation that was not overturned. They include five years’ worth of employer records, including drug and alcohol issues if applicable and professional performance as a pilot. The National Driver Registry provides data on revocation, suspension and DUI information. Some carriers under 121, 125 and 135 ask for criminal checks, credit reports and 10-year employment histories. Screeners are alert for gaps in both residential address histories and employment. Credit reports may be requested of more aviation employees because many are likely to exercise purchasing authority and use company credit cards.

Organizations that work to rehabilitate people with criminal convictions naturally defend the right of members of their communities to a second chance, and LeBlanc, Rosen and Nadell are sensitive to those issues. They’re careful to point out that they never advise an employer not to hire someone but simply present the results of their background screening and leave it up to the employer to decide.

In addition, identity theft has created a pool of victims that draws flags, yet the people are completely innocent of wrongdoing.

Rosen points to ConcernedCRAs.com as an affiliation of about 120 member companies who pledge to adhere to best practices. No sensitive personal information is ever sent offshore. So-called “national” criminal records databases without safeguards for accuracy must be employed responsibly.Â

ESR has substantial experience in aviation and airlines employment screening background checks as well as pilot checks.  See:  http://www.esrcheck.com/pria_aviation_airlines.php

Screening Vendors and Temporary Workers

A recent article in the SHRM 2008 Staffing Management Library underscores the need to screen even temporary hires.  Although many employers have well thought-out programs for their regular employees, temporary employees from staffing firms, 1099 workers or vendors pose similar risks.  The article explained why screening temporary employees is critical, and offers suggestions on how a firm can protect itself.

The article also quotes ESR President Lester S. Rosen: 

“Even if you have a person on a short-term assignment, you’re exposed,” added attorney Lester S. Rosen, president and CEO of the Novato, Calif.-based firm Employment Screening Resources. “They have the keys to the kingdom. Once they’re inside your building, they have access to your files and have the potential to do great harm.”

Rosen said that while staffing vendors “have traditionally not engaged in a great deal of screening because it slows down the placement time and adds to the cost,” they need to understand that they have “a huge risk” if they send unscreened employees to a workplace.

“They have to realize that every placement they make is potentially a game of Russian Roulette that can put them out of business,” he explained. “If you’re a staffing vendor, it only takes one bad hire to lose your reputation, lose a client and [potentially to] get sued.”

And even though an extended worker may be getting a paycheck from the staffing vendor, under “co-employment” law, employers may still be at risk of a negligent hiring suit if something goes wrong.

“If [temporary employees] cause a hostile workplace, hurt a member of the public or attack a co-worker, arguably employers are just as liable as they would be if this were a full-time, regular employee,” Rosen said.

The fact that the staffing vendor said it did background checks may not be much of a defense for an employer if the check was inadequate or ineffective. For this reason, it pays to do adequate due diligence to head off any potential lawsuits down the road.

After all, Rosen said, “Even the CIA will, every so often, hire a spy or a crook.”

The article discusses the need to evaluate the risks involved in utilizing an extended workforce and to develop an appropriate screening program.  The screening may be performed by the same firm that checks new applicants.  If done by the staffing vendor’s firm, then the employer can require that the same protocols be used that it uses internally. 

For a full copy of the article, see http://www.shrm.org/ema/library_published/nonIC/CMS_024438.asp#TopOfPage

The Basics of Criminal Records Searches

Searching for criminal records is much more complicated than it appears on the surface.  Contrary to popular belief, there is no central database available to most private employers to instantly find a person’s criminal record at one touch.  The FBI database is only available to employers that are legally authorized to submit fingerprints, the readouts can be complex and there is even the possibility of errors in those records.  With some 3200 counties in the US, screening firms have developed tools and techniques to identify potentially relevant counties to search, and nearly any county in America can be researched on site within 24-36 hours. The best practices for employers are to identify counties associated with the applicant and to search those counties by going to the courthouse. The way relevant counties are identified is first by using a tool called a social security trace that uses millions of records which show what addresses a social security number is related to. In addition, some employers also search counties where a person has worked or gone to school.  Although such searches are very accurate, as with anything depending on human beings, there is still some small margin of error possible. 

Even assuming a record is found, a professional screening firm must determine if there are sufficient identifiers to associate the record to the applicant, and even if the criminal record belongs to the applicant, numerous states have laws that restrict what can be reported. Many states do not allow the use of arrest records, and even if a state allows it, there may be EEOC considerations. Even if a screening firm can report a conviction, the employer needs to consider whether the use of the record is discriminatory.  An employer should not automatically reject an applicant with a criminal record, unless there is a business justification, taking into account such things as the nature and gravity of the act, the nature of the job and the age of the crime. 

Employers should be careful in the use of commercial databases that are advertised to search millions of records with instant results.  Those 30 second searches are NOT a substitute for a real criminal check at a courthouse and probably would not demonstrate due diligence if used all by themselves. These databases are assembled from a hodgepodge of various sources that are willing to make their data public or to sell data, such as incarceration systems, state repositories or individual counties.  These databases do not cover all states and may not be up-to-date, accurate or complete.  Certain states do not provide date of birth, which is another reason a criminal record may not come up in a database. This can all lead to both false negative and false positive results from databases. A false positive means a person is branded a criminal who is not, and a false negative means a person with a criminal record is falsely ‘cleared.’ 

The commercially available instant criminal reports are best used as a research tool only by a professional screening firm to locate other places to search.  Since they cover such a wide area, they can be very valuable in locating records that a county by county search can miss.  However, these instant databases are also a potential source of litigation against employers and screening firms, with applicants filing lawsuits for being unfairly tarnished as criminal, or victims claiming that the employer did not exercise due diligence.  Even if there is a database ‘hit,’ under the federal Fair Credit Reporting Act, the background screening firm must either reconfirm the details at the actual courthouse to ensure accuracy, or send a contemporaneous notice to the applicant at the same time, so they know that they are the subject of negative public records.  California is one state where any database ‘hit’ must be re-confirmed at the courthouse and ESR believes it is a best practice to reconfirm all database hits at he courthouse to guard against unfairly labeling someone as a criminal where their case has been dismissed, or they are the victim of identity theft or just happen to have the same last name as a perosn with a criminal record. 

Some states offer access to the state police or central state court databases.  Again, it takes a background screening expert to understand the value of such information on a state by state basis.  There is also a difference between state court searches and federal courts. 

All of this is just the tip of the iceberg.  For more details, see: http://www.esrcheck.com/services/services_detail.php

Court Case on Use of Social Networking Sites

As ESR has noted in numerous presentations on the use of social networking sites, such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions. Continue reading

Annual Top Ten Trends in the Background Screening Industry

ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring.  The full report is online at:  http://www.esrcheck.com/2009-trends-backgroundscreening-industry.php

  1. Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries.  In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.
     
  2. Privacy and Accuracy:  Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.  A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse.  A new organization called Concerned CRA’s (www.concernedcras.com) has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.
  3. Second Chance for Ex-Offenders: Unless as a society we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records.  The State of New York, for example, to deal with this issue directly, has passed new â second chance” laws that became effective this year. The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.
  4. Consumer Protection Litigation:  As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation in 2009.  These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.
  5. Impact of the Recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment or education history.
  6. Data Security, Data Breaches, and Off-shoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection.  Closely related is the continuing issue of employers and screening firms sending confidential consumer data offshore for processing to places such as India for cost savings.  Once data leaves the United States, it is beyond U.S. privacy protections.  Concerned CRR’s (www.concernedcras.com) has also taken a stance against off-shoring such data without notification to consumers.  The use of home-operator networks also presents an unnecessary risk to privacy as well.  There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.
     
  7. Accreditation by the NAPBS: The non-profit trade organization for the Screening Industry, the National Association of Professional Background Screeners (www.napbs.com) has announced the introduction of an accreditation program.  NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the accreditation process this year.
  8. Social Network Sites:  The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates.  The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures.  Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy.  Stay tuned as more courts give their opinions on this issue.
  9. Integration of Services:  With the advent of Web 2.0, it is likely that technology will play an even bigger role in the coming year.  Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.
  10. International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.

 

ESR will place its Third Annual Top Ten Trends in January, 2010.

The Use of Home Operators

Some screening firms use home based operators to perform employment and education verifications.  That of course represents a big financial advantage for the screening firm.   They get cheap labor, and may even classify them as independent contractors in order to get even additional savings by not paying workers’ compensation, benefits or other costs associated with employees.    However, it does very little to help employers.  Below are the top 10 reasons NOT to utilize a background firm that sends your applicants’ personal data to home operators working from kitchen tables and dorm rooms across America.

 

  1. Privacy: A screening firm would be directly responsible for making private information viewable and printable on people’s home computers.
  2. Professionalism: A screening firm would have difficulty accurately claiming that at-home researchers are “professionals” when they are unsupervised, unregulated and acting as cheap substitutes for what is supposed to be a professional service. Ask yourself how the sound of barking dogs, crying babies and television sets in the background may strike those asked to provide verifications.
  3. FCRA Defensibility: A screening firm would  have difficulty defending the practice of using at-home researchers against a claim under FCRA section 607(b) concerning reasonable procedures for accuracy.
  4. IC Classification: A screening firm cannot classify someone as an Independent Contractor (IC) when they work only for you, when you tell them exactly how to do their job, and when they are providing the same core services provided by your in-house staff.
  5. Training/QC: A screening firm cannot train and discuss production issues in real time. It is also difficult for at-home researchers to learn from each other when everyone is working in isolation. Furthermore, since everyone works alone it is harder to enforce quality rules across the entire organization.
  6. Supervision: Unsupervised at-home researchers are very difficult to supervise. In addition, since they are paid by the completed verification, they may be more tempted to fake orders since there is no one supervising them in real-time.
  7. Reliability: A screening firm would  be dependent entirely on the researcher’s priorities, which may not be your own. They may put a hair appointment ahead of your forty new verifications that have to be called today. You want load balancing to be under your control and not secondary to at-home researcher’s personal schedules.
  8. Hidden Costs: There are hidden costs to managing and maintaining multiple remote researchers as opposed to a central pool of talent. Take, for instance, the time lost to the unreliable performance of at-home researcher’s internet connections, home computers and printers.
  9. Due Diligence: A screening firm and employer could face significant legal exposure if the  at-home researcher’s performance falls below a professional standard of care due to lack of training and supervision.
  10. Disclosure: Would you want to disclose to your applicants that the sensitive, personal data and professional service they’ve entrusted you with was being performed by unsupervised home workers?

 

ESR does not utilize any home based or offshore operators in order to  provide you with critical employment and education verifications.  All work is done in a professionally supervised call center dedicated to the highest level of customer service, privacy, accuracy and speedy turnaround time.

Background Checks and Recruiters

A leading national Recruiting Blog by noted national recruiting and training expert John Vlastelica recently featured the role that a screening firm such as ESR can play for recruiters.  The blog, Recruiting Tool Box, is a management consulting and training firm that partners with HR and recruiting leaders to build and deploy the right recruiting strategies, plans, processes, systems, tools and training.  It has great tools and information for recruiters.  See:  http://www.recruitingtoolbox.com/ 

The following is an excerpt from  the blog for the Recruiting Tool Box : 

Considering a new background check vendor?
I completed a custom benchmarking study 18 months ago for a client, and asked 20 major employers about their background check policies, processes, standards, and plans for the future. 50% said they were relatively unhappy with their current vendor.

There’s a lot of firms out there. I was networking with people from a firm (ESR) based in California yesterday, and I asked them some questions about the differences between the firms in their space. (Their President was one of my favorite speakers at the Kennedy show I was at a few weeks ago, and we’re bringing him to Seattle to speak to us on Sept 16; watch www.smaseattle.org for details in the coming weeks).

They pointed me to a 22 question checklist that highlights key questions you should ask any background check vendor you’re considering. I thought it was an objective list, so thought I’d share it.

http://www.esrcheck.com/diligence-audit-current-provider.php

Are you pleased with your background check vendor? What makes them work well – or not so well – for you?

p.s. Note: I don’t have any commission relationships with any vendors of any kind. I certainly have opinions about firms and people in our space, but my opinions are not influenced by commissions or kickbacks.

See:  http://recruitingtoolbox.blogspot.com/2009/06/background-check-vendor-checklist.html