All posts by Les Rosen

International Background Checks and International Screening for Employment and Education Verification

Employers have long recognized that conducting due diligence on new hires is a mission- critical task. Firms cannot afford to be sidetracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers can be the subject of lawsuits for negligent hiring if they hire someone that they should have known, through the exercise of due diligence, was dangerous, unfit or unqualified.

However, with the mobility of workers across international borders, it is no longer adequate to conduct these checks just in the United States. A 2000 government study shows that 11.5% of the population consists of immigrants. In addition, an increasing number of workers have spent part of their professional career abroad. The number of countries from which employers seek additional information about applicants is expansive, and includes India, China, the Philippines, France, Germany, Russia, Brazil, Mexico, Australia, Japan and Canada, among others.

Because of the perceived difficulty in performing international employment screening, some employers have not attempted to verify international credentials or to perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer of their due diligence obligation.

Nor can employers simply assume that the U.S. government has conducted background checks if the worker was issued a visa. After the events of 9/11, the U.S. has increased checks on foreign visitors and on workers on government “watch lists.” However, the government checks are generally not aimed at verifying a credential or checking for criminal records for employment purposes.

Education
Verification of an educational degree earned abroad is critical to verify credentials and to avoid fraud. An employer needs to determine if an applicant in fact attended the school claimed and received the degree claimed. Statistics show that education fraud can run as high as 20%. The employer also needs to determine if the school is accredited and authentic. The world is awash with phony schools and worthless diplomas. If the employer is not familiar with a school, the employer should conduct its own research. A legitimate school will often have an e-mail address or phone number so that they can be contacted to verify a degree.

Employment
Foreign employment can also be verified by contacting the employer even though they are in a foreign country. Often such calls will be made in the middle of the night due to time differences. The critical step is to obtain as much information about the past employer as possible from the applicant. If the employer does not speak English, an interpreter may be needed.

In order to assist employers in the requirements worldwide, ESR has published a helpful chart showing what is required in each country around the world. See: 

http://www.esrcheck.com/internationalscreening.php

In order to comply with international data and privacy protection laws, ESR does not send personal information offshore.  The verifications are conducted from the U.S.   The only exceptions are certain countries referred to as “Red Zones,” where due to unique circumstances, a local researcher may be needed.  

In some countries, verifications can be especially difficult due to problems in that country with communications or other barriers. In the event a country does not utilize the English alphabet or an employer or school cannot communicate in English, it may be necessary to request applicant information in the language of that country.  A U.S. firm that performs international screening should also be Safe Harbor Certified.

California Sex Offender Search Employment Screening Background Check

The use of the California Sexual Registration listing, commonly known as Megan’s Law, is widespread among employers.  However, there is a little known provision in California that may actually limit an employer’s legal use of that information in some situations.

The Megan’s Law was first passed in 1996.   Originally, information on sex offenders that register under California Penal Code Section 290 was only available by personally visiting police stations and sheriff’s offices, or by calling a 900 number. The website at  www.meganslaw.ca.gov was established by the California Department of Justice pursuant to a 2004 California law for the purpose of allowing the public for the first time to use their personal computers to view information on sex offenders required to register with local law enforcement under California’s Megan’s Law.

The purpose of Megan’s law is summarized on the web site: 

California’s Megan’s Law provides the public with certain information on the whereabouts of sex offenders so that members of our local communities may protect themselves and their children. Megan’s Law is named after seven-year-old Megan Kanka, a New Jersey girl who was raped and killed by a known child molester who had moved across the street from the family without their knowledge. In the wake of the tragedy, the Kankas sought to have local communities warned.

The California site allows anyone to search the database by a sex offender’s specific name, obtain ZIP Code and city/county listings, obtain detailed personal profile information on each registrant, and use a map application to search their neighborhood or anywhere throughout the State to determine the specific location of any of those registrants on whom the law allows us to display a home address.

Megan’s law contains a provision which prohibits the information to be used when it comes to insurance, loans, credit, employment, education, housing or accommodation or benefits or privileges provided by any business.

 California Penal Code Section 290.4(d) (2).

However, there is an exception.  According to California law, a  person is authorized to use information disclosed pursuant to this section only to protect a person at risk. California Penal Code Section 290.4(d) (1).

The problem for employers that want to use this information is that there is no legal definition for the term  a “person at risk.”  Neither the California Penal code, the legislative history of the section or the Megan’s law website defines a “person at risk.”  Until a court provides a definition, employers are well advised to apply a common-sense approach by looking at risk factors associated with the nature of the job. For example, there is a widespread industry agreement that vulnerable individuals are at risk, such as the young, the aged, the infirmed, or the physically or mentally disabled. In addition, people inside their own home are likely to be at greater risk, since it is harder to obtain help, so home workers may be considered a population that works with people at risk.  Another category is workers that operate under some sort of badge or color of authority or who wears a uniform.  In that situation, a person may let their guard down.  Until a court makes a clear decision, employers should make an effort to determine if there is a good faith belief that it is reasonably foreseeable that a member of a group at risk could be negatively impacted if a sexual offender was hired.

Of course, if the underlying criminal record is discovered and otherwise meets the many complicated rules governing the reporting and use of criminal records in California, then the  at “risk” analysis may not be needed, and the employer can handle it like any other criminal record.

There are two other challenges for California employers using the Megan’s law website:

First, it is possible that a person may be registered as a sex offender, but their crime is beyond the 7 year California reporting provisions that restrict what a Consumer Reporting Agency can report.  Although not yet tested in the Courts, the industry standard is for a screening firm to report the listing, on the basis that the background firm is reporting on the offender’s current status as a registered sexual offender.

The other issue is that there are large numbers of sex offenders that either do not register or abscond from the jurisdiction(s), or do not re-register.  The Safe Hiring Manual, by ESR President, Lester S. Rosen, reported on studies suggesting a significant number of sex offenders did not have current registration and authorities have lost track of their whereabouts.

The bottom line: Where an employer is hiring an applicant for a position where it is foreseeable that there would be contact with members of groups at risk, then the sexual offender database search can be valuable.  However, employers should keep in mind that there are limitations that have yet to be fully defined by courts or the legislature, and the databases may not be up-to-date or 100% accurate.

Dangers of Using a Screening Firm That Uses a Home Based Operator Network

Some employers have assumed that all background firms are the same, so you may as well just select the cheapest.  That is the same thing as saying you should pick a lawyer or any other provider of professional service just based upon price. The reality is that background screening is a knowledge-based0A professional service, and what your background firm does not know can cost an employer dearly in legal exposure and financial costs down the road if the employer makes a bad hiring decision.

There are ways for background firms to cut costs that leave employers vulnerable. For example, some firms use “at-home” operator networks to perform employment and education verifications.  The advantages to the screening firm are numerous.  The screening firm gets cheaper labor on-demand, without having to hire workers, provide office space or computers, or pay benefits, vacation time, or workers’ compensation.  Since the cost of labor is one of a screening firm’s biggest costs, some firms see this as a way to lower their costs and to increase profits.

Unfortunately, this practice puts the employer at risk. Employers should very carefully consider the dangers of using a screening firm that utilizes a home-operator network for domestic verifications. Do you want your job applicant’s personal and private information spread out in living rooms, kitchen tables, and dorms across America?  What about the lack of quality control and standards? In addition, there is an issue as to how at-home operators are trained and monitored for quality control. Employers are strongly advised to avoid the use of screening firms who are willing to sacrifice quality and privacy just to increase their profits at your expense.

Another area of concern is whether such home workers are properly classified.  As a general rule, an employer cannot classify someone as an independent contractor when, in fact, they are essentially an employee.  Many of the arrangements that involve home-based operator networks can raise significant issues if the home workers are improperly classified as independent contractors, while in fact they are providing a core service of the screening firm, working under the control and direction of the firm, and are not, in reality, an independent business. In addition, failure to ensure a safe working environment or to pay into a state’s workers’ compensation fund can further compound a difficult situation.

Employers should inquire of any screening firm whether they use a home operator network, or if all calls are conducted in the United States in a controlled call center environment.

Australian Court Says Facebook can be used to Serve Legal Papers

Just when you thought you heard everything, along comes a story off the AP wire from Australia about a court approving the use of Facebook to serve legal papers.

Consumers that were worried that their social networking site was being used by employers now have to worry that Facebook or MySpace may be used by lawyers and court, if US Courts were to ever duplicate that example.

According to the story, an Australian lawyer had been trying to locate a couple to serve a lien notice telling them they had lost their house as a result of a default.   Apparently, the lawyer was unable to locate the couple and complete the legal service of papers.  The lawyer turned to the court after discovering the couple had a Facebook page.  Although novel, the court approved using Facebook for that purpose. 

The effort ultimately was not successful because the couple apparently turned up their privacy setting so that the lawyer could not get though.

Facebook, however, was apparently pleased with the ruling, because in their view,  it validated Facebook “as a reliable, secure and private medium for communication,” and showed the increasing role Facebook is playing in people’s lives.

The use of Facebook, MySpace and social networking sites by employers has been controversial in the U.S.  For more about using social networking sites for employment, see:  http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php

The Rush to Source Candidates from Internet and Social Networking Sites

A new article by Employment Screening Resources President Lester Rosen has appeared in the Recruiting  Trends blog, sponsored by Kennedy Information for the purpose of providing leading edge insights and strategies for the recruiting professional.  The blog offers articles by thought leaders and experts in the area of talent management and recruiting.

The article is titled: “The Rush to Source Candidates from Internet and Social Networking Sites – Let’s Slow Down and Think About This for a Minute.”

The article examines pitfalls and legal risk in the use of the internet for sourcing and screening. See: http://www.recruitingtrends.com/article/ART635215

Mr. Rosen, who is as an attorney at law, is a member of the Editorial Board and frequently presents at Kennedy Information Recruiting Conferences.

New Utah Privacy Laws Impact Employers and May Show Future Trend

Utah is the latest state to pass tough new privacy laws when it comes to Personally Identifiable Information (PII).

Utah passed a new law effective May 12, 2009 called ‘The Employment Selection Procedures Act.’  See: http://le.utah.gov/~2009S1/bills/hbillenr/hb1002.htm

The law prohibits an employer with more than 15 employees from collecting an applicant’s social security number, date of birth or driver’s license number before a job offer or before the time when a background check is requested.  In addition, if the person is not hired, the employer will not keep the information beyond two years. The employer also may not use the information for any other purposes and must maintain a “specific policy regarding the retention, disposition, access, and confidentiality of the information.” An applicant has the right to view the policy.

The idea appears to be to limit the flow of personal data before or unless it is needed and to destroy it if no longer needed.  For employers using paper applications, it creates an administrative burden since the employer needs to add another step to get the data required for a background check if an applicant moves forward in the hiring process.  However, electronic hiring procedures, such as the Applicant Generated Report system offered by ESR, solves this issue, since an applicant is only asked to provide confidential data only if the employer decides to perform a background check and the information only goes to the screening firm.

ESR provides Utah employers with a sample policy in the ESR proprietary 50 state guide available after logging onto the ESRnet system. 

The Utah law is part of a growing trend to restrict access to PII in order to prevent identity theft.  Some courts have attempted to restrict the access of identifying information in public records, which makes it harder for employers to receive accurate reports on a timely basis.

Debate: Can a business connection site be more valuable then a resume?

According to some bloggers, the suggestion has been made that using business connections sites is more accurate then resumes, since a candidate is not as likely to lie on an online service where many friends and colleagues may see it.

Looking at business connection sites during the recruiting or selection stage can certainly be another tool for HR or recruiting to try to differentiate a large group of candidates and whittle it down to a smaller group. Even then, there are significant issues to keep in mind, such as the potential for discrimination. In addition, if a person lies on a social networking site, there is no direct consequences. These sites do not contain a comment area where others can disagree, or to warn employers that qualifications are overstated. In addition, colleagues may not even know that an applicant has lied. If an applicant has listed a certificate or educational accomplishment that is not true, exactly how are colleagues suppose to knew that, much less bring it to anyone’s attention.

In addition, the suggestion without metrics that people do not lie on a social network site because others will view it will likely be much of a defense in court if a firm hires a fibber, and it turns out a background check costing a few dollars would have revealed it.

The bottom-line once again: There is nothing as effective as actual verification of a candidate’s claimed experience.

For more information on the use of social newtwork sites and employment, see: http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php

Employment Screening Resources (ESR) Announces that its President will Present at 2009 SHRM Conference

Employment Screening Resources,  a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester S. Rosen, will be presenting at the 2009 Society for Human Resource Management (SHRM) Annual Conference & Exposition in New Orleans on July 1, 2009. 

This is the 61st annual SHRM Conference and is the world’s largest Human Resources meeting with participants from more than 140 countries.  See: http://www.shrm.org/conferences/annual 

Mr. Rosen will be addressing the practical aspects of employment screening background checks by presenting a negligent hiring mock trial.  Based upon a fictitious scenario where an employer fails to exercise due diligence in hiring, participants act as jurors in a negligent hiring mock trial demonstration, featuring opening statements, cross-examination of an HR professional, closing arguments, jury instructions, and a jury verdict.

 “I am extremely pleased to have been selected to present at this national conference,” commented Rosen.  “This is a critical conference for Human Resources professionals to attend, and we are pleased to have the opportunity to present information on how to avoid unqualified, unsafe or dishonest employees, with employers across the United States.” 

Mr. Rosen, who is also an attorney, is a nationally recognized 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 he served as the first co-chairman in 2004.

Has Bozeman, Montana Gone To Far? Requiring Access to Social Network Sites Can Open up a Pandora's Box of Legal Issues

According to a story published online by the Christian Science Monitor, the City of Bozeman, Montana has “requested that candidates provide their username and passwords for social networking sites such as Facebook, MySpace, and Twitter. The application asks that candidates “list any and all current personal or business Web sites, web pages, or memberships on any Internet-based chat rooms, social clubs, or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.” http://features.csmonitor.com/innovation/2009/06/19/montana-job-seekers-asked-for-facebook-myspace-logins/#comment-10827.

Although this is an evolving area of law, the City needs to tread very carefully in this area.  First and foremost, they are opening themselves up to discrimination claims if the social network site reveals an applicant’s membership in a protected group, such as race, nationality, ethnicity, religious afflation, marital status, physical condition, etc. This is especially an issue when asking for this information in the application stage where there can be an inference that such factors were used illegally to screen out candidates on the basis of their membership in a protected class. Even assuming that a review of such sites may be relevant to the job, it is best done later in the hiring process, so applicants can be assured they were considered fairly, before the City goes looking at private sites. The City should also formulate clear policies and procedures to ensure they are looking for factors that are valid predictors of job performance.  

There are a number of other issues as well to consider. For an examination of some of the reasons the use of social network site can be dangerous, see the following ESR article:  http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php.

Update:  According to the latest news information, the City of Boozeman has dropped this requirement due to negative reactions. However, this blog post will remain since this is an ongoing issue. 

 

Texas Lawsuit Accuses Apartment Owner of Negligence in Hiring Register Sex Offender as Maintenance Worker that Raped 14 Year Old Girl

According to a storey in the Southeastern Texas Record, a lawsuit has been filed against an apartment building owner in the rape of a tenant, a 14 year old girl, by a maintenance worker that was a registered sex offender.  It was alleged that the employee repeatedly sexually assaulted the victim at knifepoint for an unspecified number of hours. The victim apparently went to the offenses apartment for a tattoo.   The offender has been arrested and is now in jail.   

See: http://www.setexasrecord.com/news/219599-apartment-management-knew-of-sex-offender-on-staff-victims-mother-alleges  

According to the story, the plaintiff has alleged  that the apartment owners “ knew or should have known of Juan Lauderdale’s dangerous and exploitative propensities as a child sexual abuser, and despite such knowledge, negligently retained (Juan) Lauderdale and failed to warn those coming into contact with him, including minor plaintiff and the minor plaintiff’s family, of (Juan) Lauderdale’s propensities.” 

The plaintiff has also alleged that, “ As a direct and proximate result of the sexual assault and the negligent conduct of the defendants, minor plaintiff suffered severe and permanent emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, and other psychological injuries.” The suit says, “These affects are permanent and will abide with the minor plaintiff for her entire life.” 

Keeping in mind that this case is only at the beginning stage, and no factual determinations have been made or any issues litigated, this type of case once again underscores that a higher risk position requires a higher degree of due diligence.  Negligence is essentially a violation of the duty of care, and that duty increase where there is a greater foreseeable risk.   

One of the classic areas where a greater duty of care is needed is apartment buildings where it reasonably foreseeable that great harm can occur if a person with an unsuitable criminal record is entrusted with keys, or has access to tenant under some sort of color of authority.  Based just upon the allegations in the paper, this case may be complicated by an argument that it is not reasonably foreseeable that a worker would entice a young tenant to an apartment, or that such actions were independent of the job duties so that any negligent hiring was not the proximate cause of the injuries.  

These cases can become very complicated depending upon the exact facts that are established through discovery.   Regardless of the final outcome, it does appear that an ounce of prevention can keep this type of situation from occurring the fist place.  

It should be noted that the maintenance worker according to the story was on the sexual offender list due to a sexual offense on young girl in 1996, some 12 years ago.  See the preceding blog about a study that suggests that after a few years, a person is not likely to represent a greater risk then a member of the general population that never offended.