All posts by Les Rosen

Where to Find a Good Application Form

Application forms are available from a number of sources.

The local or state Chamber of Commerce may have forms available.

A firm’s business or labor attorney will normally have a new employee package available with an application form.

Human resources consultants and HR organizations may have forms.

Office supply stores sell basic business forms including application forms (but be careful about some of the points raised in this newsletter).

Books about hiring are available from local book stores and HR associations, such as SHRM, and contain sample forms.

There are firms that specialize in selling employment related forms and products
on the internet.

Many firms design their own employment forms to reflect the particular needs of their firm or industry.

One word of caution — many states have unique rules regarding what can and cannot be on an application. Some of these rules concern what an employer may ask about past criminal convictions. It is beyond the scope of this newsletter to review the requirements for all fifty states. However, an employer is well-advised to consult with a labor attorney for every state they hire within to review the legality of their application forms.

Three Problems with Application Forms Asking About Past Convictions

One of the most effective uses of an application form is to enable an employer to directly ask an applicant if he or she has a criminal record. Unfortunately, many employers use language in their applications that is either too narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in a difficult situation. Let us go over this language in detail—

Too Narrow

An example of a question that is too narrow is to only ask about felonies. Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious. Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state

Too Broad

On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. An example may be, “Have you ever committed a crime?” Or “Have You Ever Been Convicted of Any Crime?” There are a number of limitations under state and federal law concerning what an employer may legally ask about or “discover” concerning an applicant’s or employee’s criminal record. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where he is forced to reveal information about himself that he is legally entitled not to disclose, an employer can actually be sued in some states for “defamation by compelled self-publication.” In other words, if forced to say something defamatory about himself, an applicant may be able to file a lawsuit against the employer for defamation.

Too Ambiguous

The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor?” or “Have you ever been convicted of a crime of violence?” or a similar question that calls for an opinion. The problem occurs when an applicant is called upon to make a judgment about his own offense. To determine if a crime can be labeled as “serious” can call for a very complex legal and factual determination on which lawyers and even judges could disagree. At times an applicant may be simply confused by court proceedings and may not understand the results or what they mean. By asking a question that is ambiguous and leaves waffle room, an applicant can argue that in his or her mind the offense was not serious and a “no” answer was truthful. That is why a question cannot contain any ambiguity

Ten Critical Items Every Application Needs

These ten critical areas need to be addressed in every application as part of a Safe Hiring Program—

  1. The application needs to clearly state that “there will be a background check” or “a background check will be performed.” A well-worded application form discourages applicants with something to hide, and encourages applicants to be open and honest.
  2. There should be the broadest possible language allowed by the laws of your state asking about convictions and pending criminal cases.
  3. An application should state that “untruthfulness or material omissions are grounds to terminate the hiring process or employment, no matter when discovered.” This is critical for example when an applicant is not truthful about a criminal conviction.
  4. The form should clarify that “a criminal conviction is not automatic grounds for rejection.” It could be a form of discrimination to automatically reject an applicant because of a criminal record. The keyword is “automatically.” Without the statement that there is no automatic rejection, an applicant may be deterred from applying in the first place out of fear of being automatically rejected upon honestly answering the question. The chilling effect on an applicant could be a form of discrimination in itself, which is why this additional language is necessary. Conversely, if a person has lied about a criminal violation, then dishonesty may become the basis for disqualification.
  5. The application form should indicate the applicant consents to “pre-employment background screening, including verifying educational and professional credentials, past employment and court records.” Such a release may discourage an applicant with something to hide, or encourage an applicant to be forthcoming in an interview. If an employer uses an outside service to perform a pre-employment screening, the federal Fair Credit Reporting Act requires there must be a consent and a standalone disclosure form separate from the application.
  6. The consent portion on any release form used for a background check should indicate the release is “valid for future screening for retention, promotion or reassignment (unless revoked in writing).”
  7. The application form must ask for ALL employment for the past 5-10 years. This is critical. A standardized application form makes it easier to spot unexplained gaps in employment. That is an important step in the hiring process and a critical part of exercising due diligence. Even if an employer hires a background company to perform a pre-employment criminal check, records can be missed because there is no national criminal record resource available for use by private employers. Criminal checks must be done in each county where the applicant has lived, worked or attended school. If a person has an uninterrupted job history, an employer may have more confidence that the applicant has not been in serious trouble over the years.
  8. The form should indicate that all educational accomplishment the applicant wishes the employer to consider should be listed. This covers an employer in a situation where an applicant was not honest about their educational accomplishments, but a degree is not part of the job description. The lack of honesty can be the basis for an employer to take action regardless of the listed job qualifications.
  9. The form should allow the applicant to indicate whether the current employer may be contacted for a reference.
  10. Finally, an employer can cover other standard matters. Examples include: the organization’s “at will” policy; the employer is “a non-discriminatory employer;” uses mandatory arbitration in disputes; and requires that applicants provide original documents to verify their identity and right to work in the United States.

Reprinted from The Safe Hiring Manual by ESR President, Lester S. Rosen (2004)

The Reasons Employers Should Not Rely on Resumes

Some employers still hire based primarily upon a resume. This can be a major mistake from the viewpoint of safe hiring. For an applicant, a resume is a marketing tool. Many resumes start by describing the type of job that an applicant is looking for, or a statement of skills and experience. In a resume, an applicant picks and chooses whatever information he or she wants to share. Many job hunters use a resume writing service, and while there is nothing wrong with using a service to prepare a professional looking resume, the service typically will attempt to enhance the applicant’s experience. The service’s goal is to get the applicant to the interview stage.

Employers, however, need facts in order to make hiring decisions.

What are some of the dangers in using a resume?

First, job applicants often feel compelled to reveal things about themselves that an employer does not need, or legally should not, know. Resumes often reveal volunteer affiliations, hobbies, interests or memberships in groups that reveal such prohibited information as race, religion, ethnicity, sexual orientation, or age. For example, a resume may reveal a person does volunteer time with a church, or belongs to a group that is clearly associated with a particular race or nationality. The problem is the Federal EEOC and states’ rules prohibit an employer from obtaining or using such information. Having this information in the form of a resume in the employer’s file is not a good practice in the event the employer is ever the subject of civil litigation or a government investigation into their hiring practices. By using an application form, an applicant cannot volunteer irrelevant information an employer should not possess.

Conversely, resumes may not give an employer all the information needed to make an informed hiring decision. With a proper application, an applicant cannot skip over jobs he or she would rather not mention. An application can allow an employer to spot unexplained employment gaps. Also, job applicants typically do not self-reveal their criminal records in a resume.

In addition, it is much easier for an employer to prescreen candidates using a standardized application. An employer trying to screen a large number of resumes can more easily compare applicants.

Finally, an application form can contain critical elements that an employer may want to convey to the applicant, or critical questions that an employer way want to ask, such as whether the applicant has a criminal record.

ESR Releases New Book on Safe Hiring-The Safe Hiring Audit

In 2005, ESR produced the first comprehensive book written on safe hiring and background checks, The Safe Hiring Manual, by ESR President, Lester Rosen. ESR is pleased to announce its second book, The Safe Hiring Audit. The new book provides a blueprint to evaluate and improve a company’s hiring procedures. Companies of all sizes can identify potential problems and insure compliant hiring practices. This essential guide provides a step-by-step action plan to evaluate current hiring practices and make changes to strengthen their businesses and avoid potential problems. It was written by Lester Rosen, along with Michael Sankey.

The book:

  • Assesses company procedures in the hiring process
  • Establishes legally defensible practices for dealing with potentially problematic applicants.
  • Provides help for both the small business owners and managers of large corporations.

The Safe Hiring Audit is targeted to employers, business owners, HR professionals, hiring managers, and security professionals – anyone with hiring responsibilities.

The Comprehensive 25 Step Audit Includes –

  • Companywide hiring policies and procedures.
  • Legal compliance and the Fair Credit Reporting Act.
  • Using EEOC-compliant employment applications and interviews.
  • Employment and education verification.
  • Access and use of criminal records, and what to do if negative information found.
  • Using other screening tools.
  • Working with Consumer Reporting Agencies.

The Safe Hiring Audit endorses the use of best policies, practices and procedures for hiring, and using professional pre-employment screening companies. It is available from Amazon and the publisher, Facts on Demand Press (www.BRBpub.com).

Employer Question: Did I Discriminate Against The “Angel of Death?”

Some firms still hire by soliciting resumes. A question that has come up deals with a situation where the e-mail address from the applicant conveys something about the applicant that appears fundamentally incompatible with the job. For example, a firm that provides elder care received a resume from an e-mail address that included the term, “Angel of Death” in the e-mail address. Since the firm services a vulnerable population, they were naturally concerned that a person that chooses such an e-mail address may not be suitable.

Another recruiter tells the story of hiring for a professional firm, and receiving an e-mail that appeared to have come from an explicit adult type e-mail address. The recruiter felt that such a person may exhibit behavior or judgment that could damage the company’s reputation, hurt business interests or be inconsistent with business needs.

In both cases however, the recruiters were concerned whether they had crossed a line by not even considering those resumes.

First, it is strongly suggested by many HR professionals that firms should not accept or solicit e-mail resumes. A firm avoids many difficulties if it only accepts applications. (A future newsletter will discuss why applications are a better alternative then resumes.)

In both cases, it is noteworthy that the two e-mail addresses in no way suggested that the applicant was a member of a protected class, or they were being eliminated based upon facts such as ethnicity, race, religion, sex, marital status, physical disability or other similar categories. Nor did the e-mail address suggest they were being discriminated against on the basis of protected off-duty conduct.

Perhaps the real lesson is that applicants sometimes can show very poor judgment in the hiring process. After all, how difficult would it have been for the applicant to take two minutes and get a professional sounding e-mail address from Yahoo, Hotmail or numerous other services?

If you have had a similar experience, have a different opinion or have a question to ask about background checks and safe hiring, please e-mail Jared Callahan at jcallahan@esrcheck.com.

The Six Biggest Applicant Lies!

Although statistics vary widely, there is widespread agreement that a substantial number of resumes belong in the “fiction” section of the bookstore. The rate of fraud can be as high as 40% and higher according to different sources. Applicants certainly have the right to put their best foot forward, and puffing their qualifications is an American tradition. But when puffing crosses the line into fabrication, an employer needs to be concerned. When you hire an applicant who uses lies and fabrication to get hired, the issue is that the same type of dishonesty will continue once they have the job.

What are the six most common fabrications from job applicants?

Claiming a degree not earned: Yes, believe it or not, applicants will make up a degree. Sometimes, they actually went to the school but never graduated. Some applicants may have had just a few credits to go, and decided to award themselves the degree anyway. On some occasions, an applicant will claim a degree from a school they did not even attend. The best practice for an employer is to state clearly on the application form that the applicant should list any school they want the employer to consider. In that way, if an applicant lies, the employer can act on the lack of truthfulness regardless of whether the educational requirement is part of the job requirements.

Diploma Mills or Fake Degree: A related issue is diploma mills or fake degrees that can be purchased online. For those that actually attended classes, read books, wrote papers and took tests to earn a diploma, you apparently did it the old fashioned way. Now, getting a “degree” is as easy as going online and using your credit card. There are websites that will print out very convincing, fake degrees from nearly any school in America. In fact, the president of ESR obtained a degree for his dog in Business Administration from the University of Arizona—and the dog had been dead for ten years. A transcript was even obtained and the dog got a “B” in English! Some sites will even provide a phone number so an employer can call and verify the fake degree. Some of the degree mills even have fake accreditation agencies with names similar to real accreditation bodies, in order to give a fake accreditation for a fake school.

Job Title: Another area of faking is the job description or job title. Applicants can easily give their career an artificial boost by “promoting” themselves to a supervisor position, even if they never managed anyone.

Dates of Employment: Another concern for employers is applicants that cover up dates of employment in order to hide “employment gaps.” For some applicants, it may be a seemingly innocent attempt to hide the fact that it has taken awhile to get a new job. In other cases, the date fabrication can be more sinister, such as a person that spent time in custody for a crime who may be trying to hide that fact.

Compensation: A related issue is pay – applicants have been known to exaggerate compensation in order to have a better negotiating position in the new job.

Lack of Criminal Record: Nearly every application will have a question about past criminal conduct. Although employers may not “automatically” eliminate a job applicant without a showing of a “business necessity,” if the person lies, then the employer would have grounds to deny employment based upon dishonesty.

The common denominator in all of these: they can be all be discovered by a program of pre-employment screening. To quote a phrase popular in the 1980s. “Trust, but verify.”

I-9 Verification – An Extra Step for Safety

Your candidate’s background check is done. An offer of employment has been made and accepted. But there is one last step you can take to keep your workplace safe.

I-9 Verification.

The I-9 process itself has been required by the U.S. government for years. New procedures have been created by the federal Department of Homeland Security since September 11, 2001, that offer additional checks to actually verify the identity of the person who has applied for work.

The voluntary I-9 verification process is one of these new safety features. This matches up the Social Security Number with the name provided by your candidate and updates the Dept. of Homeland Security on the documents presented by the candidate for verification.

Last month, our newsletter talked about the Social Security Trace, which is an “Address Locator Tool.” The Social Trace can tell you whether the Social Security Number is valid, but federal law prohibits matching up the name and the number until after the candidate has been “hired.”

One advantage: the definition of “hired” is that you have made an offer of employment and it has been accepted. Thus you can do the I-9 verification with the Dept. of Homeland Security before the “new hire” reports for his or her first day of work.

E-Verify – formerly known as the Basic Pilot/Employment Eligibility Verification Program – is an internet based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. And beginning this month, the E-Verify system includes citizenship status of naturalized U.S. citizens.

If you don’t wish to perform the I-9 Verification yourself, you can designate an authorized Background Screening Firm to act as your agent with the federal government for the verification process. Setup takes about three weeks (because you’re dealing with the federal government) and then once you have authorized an agent for the I-9 verification, the verification with the Dept. of Homeland Security and the Social Security Administration takes just one day.

I-9 Verification is separate from Pre-Employment Background Screening because it can only occur post-hire.

ESR is an authorized agent in the I-9 Verification process and offers this service for clients at a nominal fee. ESR Customer Service can explain the various steps required to set up and complete the I-9 agent verification.

Another Trap: The “Bait and Switch” Package

Another aspect of background screening that can confuse employers is the fact that there is no standardization as to what background firms are offering. Unfortunately, it can be very difficult to compare offerings from different background firms without an insider’s knowledge of how screening works.

For example, some screening firms offer a “package” where they will do an “unlimited” amount of criminal searches for a fixed fee. To an employer who does not understand how this works, there may be a temptation to simply choose the firm offering the cheapest price or the best package.

However, that can be a big mistake because as the old saying goes, “you get what you pay for.” Without knowing exactly how it works, an employer can find they are on the receiving end of a bad deal that profits the screening firm and exposes them to allegations of negligent hiring.

Here is why employers need to ask questions before blindly assuming that a cheap “package” price is a good deal:

First, are the counties being searched “derived” or “developed?” A “derived” search means that the screening firm is simply looking at addresses and jurisdictions that come up in some sort of social security trace report. A “developed” search means a screening firm also adds in those counties where a person has worked. Obviously, firms that do a “developed” search are likely doing more searches and giving more protection. Firms trying to save money at an employer’s expense will do a “derived” search only, and the employer will be none the wiser.

Secondly, an employer needs to understand what databases the screening firm is using to establish past addresses. If the screening firm is utilizing a credit bureau’s social trace, that is likely to produce less address information. That works to the advantage of a screening firm because they do fewer searches and therefore make more money. On the other hand, the employer has less protection. An employer is better off using a screening firm that utilizes an address information manager that may have many more jurisdictions to search.

A third consideration is how the records are checked. If the screening firm is using a database in order to save money, there is a real possibility that relevant information will be missed or incorrect information reported. Although databases can be valuable because they can lead to the discovery of information and additional places to search, databases are inherently not as accurate as court searches. Databases do not cover all jurisdictions, do not always contain identifiers, such as date of birth, and are not always updated with the latest information. Court searches are based upon the actual information at the courthouse and are the most accurate.

As with anything else, if a deal is too good to be true, it may not be the real thing. Employers may get baited into an “unlimited” seven year search, and switched into a search that does not protect them. For more information, contact ESR to find out about real background checks that do not take short cuts.

(Next month, another Trap for the Unwary will be reviewed—the use of home operators for verification calls. Employers should very carefully consider the dangers of using a screening firm that utilizes at-home operators for domestic verifications.)

Trap for the Unwary: Choosing a Screening Firm (Data and Privacy Protection)

Despite significant attention in the U.S. on data and privacy protection, there is a major hole that most American consumers are not aware of: that a great deal of Personal and Identifiable Information (PII) is sent offshore for processing where there is no real protection. As a practical matter, once data on a U.S. resident is sent abroad, it is beyond the protection of U.S. privacy laws, and there is very little, if any, protection for the consumer.

A couple of years ago, there was a news story about a California hospital that outsourced its medical transcribing, and the work ended up in Pakistan. A medical transcriber in Pakistan got into a dispute with her employer about wages and threatened to publish the medical records of thousands of Americans on the Internet. Needless to say, the hospital suffered through a great deal of negative publicity and the privacy and confidentially of medical records for numerous Americans was endangered because their personal information was sent offshore, beyond the reach of U.S. privacy laws. Of course, even after the matter was settled with appropriate payments, no one knows for sure what information the offshore worker may have decided to keep or for what reason.

Some background firms, in order to make more money, send information offshore for data processing, or use foreign operators to contact past employers or schools in the U.S. The offshore agent is completely beyond U.S. privacy rules and there is little control over what they do with the information. As the California hospital found out, sending private data abroad for processing is risky business. Recent news articles have revealed that call center workers in foreign countries are actively engaged in the theft of consumer information from call centers in order to commit identity theft. When data is stolen, a U.S. resident has no practical means of contacting a foreign police department or obtaining the services of a foreign attorney to file a lawsuit.

In order to protect consumers and employers, ESR has a very simple policy—information is not sent offshore for processing. Although it is substantially cheaper to utilize offshore workers, that is inconsistent with a basic duty to protect confidential data. When there is an international verification of employment or education and the information being obtained is outside of the U.S., ESR still does not send out personal information unless it is impossible to obtain information otherwise. Even then, strict controls are maintained.

The bottom-line: protection of PII is mission critical for any screening firm. Routinely sending PII offshore creates a substantial and entirely unnecessary risk with no justification other than a desire to make more money. By using ESR, employers can rest assured that their applicants’ data is safe. Any employer that is concerned about the privacy of their applicants’ personal information should ask their background firm if data is being sent outside of the U.S. for processing, and if so, what information is being sent, what country is involved and what protections are in place.