All posts by Les Rosen

International Employment and Education Verifications

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. ESR provides forms in a number of languages, such as Arabic, Chinese, Japanese, Korean, Italian, Spanish, Russian, French and German to name a few.

Contact Jared Callahan at ESR by phone at 415-898-0044 or e-mail at jcallahan@esrcheck.com for more information.

ESR 2008 Speaking and Training Dates

ESR 2008 Schedule

February 7, 2008 IPMA HR audio conference–“Avoid Negligent Hiring–New Developments, Best Practices and Legal Compliance.” Details to follow

February 28, 2007 Silicon Valley, CA “Using the Internet and Social Networking Sites to Find and Screen Applicants” Santa Clara County Employer Advisory Group, Biltmore hotel, Santa Clara, CA

March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow

March 26, 2008 Los Angeles, CA “Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

April 3, 2008 San Francisco, CA “Pre-Employment Screening and Background Checks” San Francisco Employer Advisory Council (EAC)

May 15, 2007 Las Vegas, NV “Using the Internet and Social Networking Sites to Find and Screen Applicants” Kennedy Information’s Recruiting 2008 Conference and Expo, Las Vegas Hilton

June 5, 2008 Cooperstown, NY “Cutting Edge Issues and Best Practices in Background Checks and Employment Screening for Hospitals and Healthcare Organizations” Symposium sponsored by the Health Association of New York State (HANYS)

June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.

July 16, 2008 San Francisco, CA “Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

July 18, 2008 Stockton, CA “Pre-Employment Screening and Background Checks” Stockton Employer Advisory Council (EAC), Stockton, CA

August 28/29 2008 New Delhi, India “International Background Screening: Best Practices in the US and in India and the Pacific Rim.” The Second Annual International Pre-employment Screening Conference, The Taj Mahal Hotel, New Delhi, India

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The $395 course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

7110 Redwood Blvd., Suite C

Novato, CA 94945

415-898-0044

An Employer’s Duty of Care Increases with Risk

The following excerpt from the “Safe Hiring Manual” discusses the duty of care in more detail:

The injured party must show there is some connection or relationship between itself and the employer, so the employer owes a duty of care. This can occur in numerous situations, such as a co-worker on the job, a member of the public in a location where customers are expected to have contact with employees, tenants in an apartment building injured by a maintenance worker, and other situations where the victim and the dangerous employee are expected to come into contact. In other words, an employer breaches a duty of care if it creates a situation where a third party is expected to be brought into contact with the employee who causes the injury, under conditions for which there is an opportunity for an injury to occur. It does not matter that the particular injury was foreseeable, just that any injury was foreseeable.

Certain employers have a higher duty of care because of the unique situations of the job. An employer’s duty of care will increase with the degree of risk involved with the position For example, consider the nature of the authority and position of trust a security guard holds. Many courts impose an even higher standard of care on a security guard business than other types of employers since there is a greater likelihood of harm to third parties. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984). In other words, when the job enables a person to act under some color of authority, a greater risk is involved because a person can potentially abuse that authority.

Similarly, courts have held employers who send workers into people’s homes to a higher standard. This is on the theory that when an employer hires an employee who is given a unique opportunity to commit a crime, the employer has a higher duty of care. Examples are firms that clean carpets, deliver or fix appliances, or perform pest control services in a home. An example is a homeowner who brought suit against the exterminating service she hired when one of its employees raped her in her home. Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1st Cir. 1989).

Other examples of higher duties of care can be medical professionals, home health care agencies or childcare workers that serve a vulnerable population particularly at risk. Another example is a worker hired in a call center who has access to sensitive financial information such as credit card numbers, or personal information such as SSN’s.

For more information about the Safe Hiring Manual, visit http://esrcheck.com/SafeHiringManual.php

From the Courts: Los Angeles Jury Awards $12 Million Verdict Against Apartment Owners for Negligent Hirin

According to news reports on January 18, 2008, a Los Angeles jury awarded a $12 million verdict against an apartment owner that hired a maintenance man without a background check who then raped and murdered a 30-year-old tenant. The maintenance man was a convicted felon and registered sex offender who was given keys and access to all apartments in the complex.

The wrongful death case, brought by the victim’s family, alleged that the maintenance man was the perpetrator, and that a background check would have revealed his criminal past.

The verdict underscores again the value of background checks in protecting human life. For a minimal cost, the apartment owners could have easily discovered the criminal record before handing a registered sex offender the keys that allowed access to evey apartment and putting numerous people at risk. By failing to exercise due diligence in hiring, employers open themselves up to this type of negligent hiring lawsuit.

In addition, even businesses that only hire occasionally have easy access to background checks. ESR for example has a small business division, where a small employer can go online and use their credit card for a background check in a very user-friendly system. See: http://www.esrcheck.com/smallbizdivision.php

In this type of case, the duty to conduct a background check was especially critical because of the potential and foreseeable risk to human life if the keys to every apartment were given to the wrong person. See the next article of this newsletter for a discussion of risk and the increased need to conduct due diligence in hiring. http://www.mercurynews.com:80/breakingnews/ci_8012071

Ten Trends in Hiring and Screening in 2008

Here are ten (10) trends in hiring and employment screening that ESR is tracking in 2008.

  1. Paperless Systems: With advances in technology, there is no longer a need for job applicants to sign a physical piece of paper or for employers to enter data on a background screening website. An “Applicant Generated Report” takes advantage of the federal electronic signature laws for a valid online signature, so that applicant fills out the screening authorization form online, then that applicant data goes directly into the background screening firm’s system.
  2. 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. Although there are numerous practical and legal challenges as well as data and privacy concerns, international background checks are becoming very accessible to employers.
  3. Legal Compliance: Even though the federal Fair Credit Reporting Act (FCRA) governs background checks on the national level, there are a number of states passing their own laws. This underscores the trend that background checking requires legal compliance expertise in order to comply with complicated federal and state laws.
  4. Privacy Concerns and the Off-shoring of Data: Even though great strides have been made to fight identify theft and to protect personal data in the U.S., there is practically no legal protection once personal and identifiable information (PII) leaves the U.S. Employers need to very carefully establish whether a background firm is sending data off-shore for processing and, if so, employers need to know what country is being used, what information is going off-shore and what privacy protection is in place. The concern for employers? If it gets out that you are using a screening firm that sends applicant data overseas, would applicants want to apply to your organization?
  5. Accreditation of Screening Firms: For many employers, it is difficult to distinguish among screening vendors. The National Association of Professional Background Screeners (NAPBS) is in the process of developing accreditation standards. In the meantime, the following website has a helpful article and link to a sample Request for Services (RFP) that may help employers determine how to select a screening service. See: http://www.esrcheck.com/SelectingBackgroundScreeningFirm.php
  6. Rights of Ex-offenders to Get Jobs. There is an active movement in the U.S. to help ex-offenders obtain gainful employment. Without a job, an ex-offender is likely to end up back in custody, and unless we as a society would rather build more prisons than schools and hospitals, a way is needed for ex-offenders to get back to work. In addition, there is a greater likelihood that an employer could be sued for discrimination if an ex-offender is denied employment without a business justification.
  7. Increased Screening of Temps, Independent Contractors and Vendors: Some employers have well-thought out screening programs for their employees, but routinely allow temporary workers, independent contractors and vendors access to their premises, clients, or computer systems with no idea of who they are. Employers need to examine their practices for screening members of their extended workforce and vendors.
  8. The Use of Search Engines and Social Networking Sites: Employers will increase their use of search engines and sites like Facebook and MySpace to screen applicants. However, there are a number of pitfalls, such as obtaining information that is potentially discriminatory or not authentic. In addition, the issue of whether applicants have a “reasonable expectation of privacy” in their social networking sites has yet to be determined, since there are strong arguments that not everything on the web is fair game for employers to use.
  9. The Use of Criminal Databases. Although large criminal databases are a valuable secondary tool with millions of records, employers are beginning to understand that those databases are not a replacement for a county criminal search but rather a supplemental search that may lead to other counties to check.
  10. Ongoing Screening Post-hire: New tools make it possible to screen employees periodically after they are hired. However, thought must be given to the type of screening and what to do with any negative information. Such screening also uses databases, which can have a high rate of “false positives” and “false negatives” when used as a standalone tool.

For more information, contact Jared Callahan of ESR at jcallahan@esrcheck.com or 888-999-4474, Ext. 240

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the “remove” feature at the end of the newsletter.

ESR’s offices will be closed on December 25th and January 1st in observation of the holidays. The entire staff at ESR sends their best wishes for the holiday season.

(Reading time: Less than 5 minutes)

December 2007 Vol. 7, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update


1. ESR Travels to the UK, India and Japan to Investigate International Screening

2. Why Employers Cannot Assume the Government is Screening Workers from Abroad

3. Types of International Checks — Screening Versus Investigation

4. ESR Speaking Schedule for 2008


1. ESR Travels to the UK, India and Japan to Investigate International Screening

In December 2007, ESR President, Lester Rosen, toured three destinations where US employers often have a need to screen applicants. Mr. Rosen was also the keynote speaker at the First India International Screening Conference held in Bangalore, India. The countries visited were the UK, India and Japan.

In all three countries, the goal is the same for employers; mainly to ensure due diligence in hiring to avoid applicants who are dangerous, dishonest, unfit or unqualified. However, any U.S. employer that is expecting the process to be similar to the U.S. will be very disappointed. Although employers internationally face similar challenges, there are stark differences in how things are done in each country.

When discussing background checks outside of the U.S., it is important to clearly differentiate between International Screening and Global Screening. International Screening refers to a U.S. Employer that is hiring someone in the U.S. that has spent time outside of the U.S. That can either be a U.S. citizen that has spent a period of time outside of the U.S. while working or going to school, or a citizen of another country working in the U.S. In either case, it is important for the screening consent forms to clearly be neutral when it comes to ethnicity or national origin, and only refer to a consent for screening in locations outside the U.S. where the person has lived, worked or studied. In the case of a foreign national coming to work in the U.S. on a VISA, the prevailing evidence appears to indicate that U.S. employers cannot assume that a government VISA means that a background check has been conducted by the government. Although the government checks various terrorist databases, there is no guarantee that there had been an adequate criminal record check, or that past employment or education has been verified. (See next story).

Global screening on the other hand refers to a situation where a U.S. firm sets up an operation outside of the United States, and needs to screen in that country. For example, if a U.S. company opens an operation in India, then Global Screening refers to the process of screening inside of India.

In the next four issues, ESR will review both International Screening and Global Screening for the UK, India, Japan and People’s Republic of China, (PRC). There will also be articles concerning screening in Canada and Mexico. Future issues will continue to address data and privacy protection issues as it applies internationally.

For information on International Screening, please contact Jared Callahan at 415-898-0044 Ext. 240 or jcallahan@esrcheck.com


2. Why Employers Cannot Assume the Government is Screening Workers from Abroad

There are essentially two legal ways for individuals to come to the U.S. to work or live — either apply for an immigrant visa or a non–immigrant visa. An example of a non-immigrant visa is an H1-B visa. This visa is issued for applicants with specialized professional skills to obtain permission to work in the U.S. According to government statistics, legal immigration in the U.S. was over a million people in 2002. This figure does not count the individuals from abroad in the U.S. working on a temporary work visa.

Here is the crux of the matter for employers: employers cannot assume the U.S. government in issuing a visa has performed a background check that relieves employers of their due diligence obligation to conduct their own screening. Government efforts are not foolproof. After the events of 9/11/2001, the U.S. Government has certainly increased checks on foreign visitors and workers, however, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S., or deporting those non-citizens that commit crimes in the U.S. or overstay their visas. The efforts the government makes, although vital, do not substitute for what an employer needs to do. The government efforts are not necessarily aimed at lesser convictions that may be relevant to job performance, or verifications of credentials.

Part of the difficulty is this— when a person applies for either an immigration visa or a non-immigration visa, there are potential holes in the criminal background check process.

Criminal checks are done in different ways, depending on the type of visa. For a non-citizen applying for a visa in order to immigrate to the U.S. to live and to receive a “green card,” there is a “police certificate” requirement. The applicant must typically obtain a police certificate from his or her home country’s “appropriate police authorities.” The applicant must include any prison records. That sounds good on paper; however, there are two points to consider.

The first problem is the time period for issuing police certificates may allow a person with a criminal record to evade detection. Under the State Department rules, the police certificate comes from a country, area, or locality where the alien has resided for six months. However, if a person has frequently moved around inside that country, criminal records can be missed, depending on how the records are kept. Recent offenses may not be reported. If a person has lived in other countries, then the relevant time period is one year, so records can be missed if the person was in the country for a short period of time or left after committing an offense. The consular officer — a State Department officer assigned to a local U.S. Consulate — may require a police certificate from additional jurisdictions regardless of length of residence in any country, if the officer has reason to believe a criminal record exists.

The second issue is that police certificates differ all over the world in terms of reliability, timelines, and completeness. Police certificates are still only as good as the efforts, resources, and abilities of the local law enforcement authorities in each country, so even when a police certificate is available, the completeness of the data can still be an open question. In addition, a number of countries do not even have police certificates available, or police certificates are too difficult to obtain and not available as a practical matter.

The U.S. State Department recognizes this as an important issue. The State Department maintains the Visa Reciprocity and County Document Finder, an international listing by country of issues involved in obtaining necessary visa documents. For more, see http://travel.state.gov/visa/reciprocity/index.htm. Visa applicants can visit the website to find out how to obtain police certificates and court records from their own country.

The essential lesson from this discussion is there are, statistically, a significant number of potential job applicants where the relevant background information will come from outside of the U.S. An employer cannot depend upon the visa process as protection. That means U.S. employers should consider what they can and should do internationally in the area of safe hiring and employment screening.


3. Types of International Checks — Screening Versus Investigation

There are two types of international services an employer may utilize. The first type is an international employment screening. The second type is an international investigation.

For most employers, an international employment screening involves verifications of supplied information by an applicant who has given express written consent, as opposed to an active investigation to locate information. In other words, in a screening an employer will have already obtained from an applicant the names, addresses, and phone numbers of previous employers or schools. Also, the employer will have obtained a list of potential locations where an applicant has lived, worked, or studied, as it is important to know where to conduct criminal searches. If more information is needed, such as the applicant’s school identification number or some other data, then the applicant can be asked to supply the needed data. The employer does not need to hire an international investigator to locate that information. The applicant will help the employer obtain the information since the applicant has signed a consent form and wants to be hired.

Another way of distinguishing between an international screening and an international investigation is who conducts the check and where. An international investigation typically involves a trained and experienced investigator working in the country where the investigation is being conducted. When an employer utilizes a screening firm, there is not necessarily an agent on the ground in the country where the information is being obtained. The screening may be conducted by phone or email contact with courts, employers, and schools. The person available to assist in the foreign country may be a court runner as opposed to an experienced investigator. In fact, for privacy purposes, it is a best practice for a U.S. firm to not send any personal data outside of the U.S.

Typically, an international investigation is considerably more expensive than a screening. Since international investigations may involve qualified personnel on the ground in the foreign country — doing in-person interviews or obtaining records — the cost can be thousands of dollars. If a business is filling a highly sensitive position or is conducting a due diligence investigation of a potential business partner, then the services of a qualified investigative firm may be needed.

Screening, by comparison, is considerably less expensive. A typical international screening will consist of contacting the employers and schools supplied by the applicant, and conducting a criminal check to the extent possible in that country. A screening may also include, if available, a driving record and credit report. The overall cost, although greater than a typical U.S. screening, is less than an international investigation.

The bottom-line for U.S. employers: An employer should analyze the risk involved, and evaluate what level of check is appropriate. For employers who wish to perform “international screening” by filling a position in the U.S., then a U.S. screening firm can generally provide the necessary information, as long as the employer is comfortable with the firm’s data and privacy protection.


4. ESR Speaking Schedule for 2008

ESR 2008 Schedule

February 7, 2008 IPMA HR audio conference–“Avoid Negligent Hiring–New Developments, Best Practices and Legal Compliance.” Details to follow

March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow

June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

7110 Redwood Blvd., Suite C

Novato, CA 94945

415-898-0044

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

November 2007 Vol. 7, No. 11

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Hot Off The Press: Despite Their Resources, an FBI and CIA Background Check Fails to Uncover an Applicant with False Credentials

2. New I-9 form Released for Employers

3. Urban Myth: A Social Security Trace Report from a Background Firm is from the Government

4. ESR in the News! ESR is the Official Background Screening Firm for Real Santas


1. Hot Off The Press: Despite Their Resources, an FBI and CIA Background Check Fails to Uncover an Applicant with False Credentials

When it comes to exercising due diligence in hiring, the two organizations that are probably among the best in the world are the CIA and the FBI. Not only do they have access to confidential governmental databases that private employers cannot access, but they spend substantial time and resources on each hire, including in-depth field interviews of references and past employers by trained professionals.

Yet even with all of these advantages it turns out that the FBI and CIA are not above having their hiring systems thwarted by a determined liar. In a highly published case, the FBI hired an agent with false credentials into a highly sensitive position, critical to the national security of the United States. On November 18, 2007, an FBI agent named Nada Prouty, who also did sensitive work for the CIA, was convicted in federal court of criminal charges relating to falsification of her employment application. According to a story in the New York Post,

Nada Prouty, 37, admitted last week she faked her first marriage to a Michigan man in 1990, enabling her to get US citizenship that helped her secure jobs with the FBI and CIA. Her star as an agent rose, and officials trusted her to grill al Qaeda sympathizers.

She also confessed to sneaking into government databases for secret information on her sister and brother-in-law, both linked to the Middle East terror group Hezbollah. See:(http://www.nypost.com/seven/11182007/news/nationalnews/jihad_janes_state_of_bliss_936973.htm)

Employers concerned about exercising due diligence in the hiring of employees can take some comfort in the fact that even the FBI and CIA do not get it perfect. A private employer is not held to the standard of perfection in hiring. The standard is whether the employer exercised due diligence to reasonably prevent a person that is unsafe, unqualified or unfit from being hired. Being able to document due diligence in a negligent hiring lawsuit is an employer’s best defense. Pre-employment screening of course, is an essential element of any due diligence program.


2. New I-9 form Released for Employers

The U.S. Citizenship and Immigration Services (USCIS) has just released a new version of the Form I-9 for use by employers. In a press release dated November 23, 2007, the USCIS reminded employers that they must transition to the revised Employment Eligibility Verification Form (I-9) not later than Dec. 26, 2007 and that all employers are required to complete a Form I-9 for each employee hired in the United States.
http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf

The 1986 Immigration Reform and Control Act (“IRCA”) makes all U.S. employers responsible for verifying, through a specific process, the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. To implement this, employers are required to complete Employment Eligibility Verification Forms I-9 for all employees. An employer’s obligation to review documents is not triggered until a person has been hired, whereupon the new employee is entitled to submit a document or combination of documents of his choice to verify his identity and work eligibility.

The new form modifies the list of documents that can, and cannot, be used. The new form also makes providing the Social Security number voluntary, except for employees hired by employers participating in the USCIS Electronic Employment Eligibility Verification Program (E-Verify).

The new form can is located at: http://www.uscis.gov/files/form/I-9.pdf

The USCIS also issued a 47 page handbook on I-9 compliance. See: http://www.uscis.gov/files/nativedocuments/m-274.pdf

Employers also have the option of utilizing the E-Verify program that allows employers to access databases administered by the Department of Homeland Security and the Social Security Administration to check the information on an I-9 form to determine that individual’s employment eligibility. Although the program is voluntary at this time under federal law, many employers find there are advantages to having direct access to government data.

ESR is qualified to act as an employer’s Designated Agent to perform the verifications through the E-Verify program. Many employers find that utilizing ESR as their agent to participate in the program saves time and money. Most critically, if an employee is not verified, ESR can help walk an employer through the necessary next steps.

To participate in the E-Verify (Basic Pilot) Program, an employer must first provide ESR with information so that ESR can register the employer. As part of the registration process, an employer must execute a Memorandum of Understanding (MOU) that sets forth the responsibilities of the Social Security Administration, the U.S. Citizenship and Immigration Services Bureau, and the employer.

See: http://www.esrcheck.com/formi9.php

Contact Jared Callahan at ESR by pone at 415-898-0044 or e-mail at jcallahan@esrcheck.com for more information.


3. Urban Myth: A Social Security Trace Report from a Background Firm is from the Government

(This is the fourth story about Urban Myths and Employment. The first myth was that employers do not need to perform background checks on licensed professionals. The second myth was that credit scores are used by employers for hiring. The third myth was that once a judge removed a criminal record that the actual record can never be found again.)

A standard tool used by nearly every pre-employment screening firm is a “Social Security Trace.” In cases where an employer does not have a sound business reason to obtain a credit report, obtaining the Social Security Trace can give information about a person’s past addresses and will help to discover any identity fraud issues. It also helps employers determine where to search for criminal records. It is a record that provides names and addresses that are associated with a social security number in records maintained by credit bureaus. Some screening firms use an enhanced tool called an “Address Information Manager” that contains data from numerous other databases.

Many employers mistakenly believe these searches are an “official” recitation of government records. The Social Security Trace information is NOT being accessed directly from government records, and is therefore not an official verification of a Social Security Number. A Trace report may contain data from the Social Security Administration’s list of deceased individuals, but usually the report is created from data found in the databases created by private firms.

In addition, it is critical to understand that a Social Security Trace report is NOT an official registry of current or past addressees. For a number of reasons, current and past addresses will not appear on a Trace report if the applicant never used those addresses in any dealings of interest to the major credit bureaus. On occasion, there may be no names or addresses associated with an SSN. This can occur when a person has never applied for credit, they are too young to be in the credit bureau records, or they are new to this country and have not built a credit history.

An employer should never make a direct hiring decision based upon the absence of an address in a Social Security Trace. Although Trace reports can be helpful for identity purposes and for determining where to search for criminal records, they are not positive proof of identify or the validity of a Social Security Number. However, the information in a Trace report can be the basis for further research of an applicant.

In addition, a screening firm can provide a state of issue and year of issue. This information also does not come from official government records. Rather, the information is based upon publicly available informatin on how a social security number is issued. The first three numbers reflect the state of issue and the middle two numbers are related to year of issue. However, not all Americans will obtain a social security number at the same age, so that information may not be as useful as it appears.

For more information about the Social Trace reports and social security number and screening, see, “The Safe Hiring Manual,” by ESR President, Lester Rosen.


4. ESR in the News! ESR is the Official Background Screening Firm for Real Santas

ESR is pleased to announce that it has been selected as the official background screening for “Real” Santa’s. A real Santa is gentleman with an authentic bread and holiday spirit. ESR is pleased to help children everywhere enjoy a safe and happy holiday season. For more information, see: www.Realsantas.com. See the Story at http://www.redding.com/news/2007/nov/27/not-so-jolly-santa/

ESR has recently been featured in two Human Resources articles in national HR publications.

In the October 2007 issue of HR Magazine published by SHRM, the issue of “How Deep Can You Probe,” is examined. ESR president Lester S Rosen is quoted at length on the legal implications of background screening.

In the July issue of Human Resources Executive, ESR President Lester Rosen is also quoted in an article on. “Immigration and Aggravation.” Rosen is quoted on issue involved in using biometric measurements for immigration controls. The article concludes with a quote from Rosen that “The employers who do the bare minimum are the one who get into trouble. When its easy entry, it’s easy fraud.”

ESR 2007 Schedule

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel, (details to follow) Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

ESR Newsletter and Legal Update

 

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

October 2007 Vol. 7, No. 10

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Hot Off The Press: Ninth Circuit Ruling Vacating Previous Judgment Demonstrates Why Background Screening Requires Expertise

2. The Use of Military Records for Employment

3. Urban Myth: Courts Destroy Criminal Records That Have Been Set Aside or Expunged

4. ESR Featured In Two Human Resources Articles In National HR Publications


1. Hot Off The Press: Ninth Circuit Ruling Vacating Previous Judgment Demonstrates Why Background Screening Requires Expertise

On September 25, 2007, the federal Ninth Circuit Court of Appeals vacated and reversed a judgment in a case previously discussed in the May, 2007 ESR Newsletter. In the first ruling earlier this year, the Ninth Circuit ruled that a consumer reporting agency can reasonably rely upon court records, even if the court made a mistake. In Dennis v. BEH-1 and Experian Information Solutions, a consumer credit report showed that the plaintiff had a judgment against him in a civil case. In fact, the plaintiff had entered into a stipulation that as long as the plaintiff made payments on the debt, no judgment would be entered. However, a court clerk erroneously reported there was a judgment in both the court trial minutes and the Register of Actions. Consequently, the credit report from the credit bureau reported a civil judgment, even though no judgment was entered.

However, ESR also noted in the May Newsletter that, “Where the case became even more interesting was that when Experian sent a researcher to re-investigate the credit report, Experian found the stipulation that indicated there was no judgment.

Apparently, the Ninth Circuit also found that to be an interesting point, because on a petition for re-hearing, took the very unusual step of changing course and reversing itself. In the new ruling issued September 25, 2007, it withdrew the original first ruling and ruled that Experian was in fact liable. The Court noted that the trial court’s file very clearly indicated there was not a judgment. Therefore, reporting a judgment was factually wrong.

The Court further noted that when conducting a re-investigation, a credit agency “must exercise reasonable diligence in examining the court file to determine whether an adverse judgment has, in fact, been entered against the consumer.” Since the court file contained a paper that clearly indicated there was no judgment, the credit agency did not fulfill its obligations.

The Court also gave guidance to what it expected from credit agencies. The opinion stated that:

“This case illustrates how important it is for Experian, a company that traffics in the reputation of ordinary people, to train its employees to understand the legal significance of the documents they rely upon.”

This case once again underscores that background screening is simply not a data supply business. Screening is a professional service that requires substantial expertise and experience. ESR, for example, has all of its background specialists complete an intensive 30 hour training course in addition to periodic in-house training. Employers that select a screening service based just upon price are potentially placing themselves, as well as their workers, customers and the public, at grave risk.

For a copy of the court decision, contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@esrcheck.com.


2. The Use of Military Records for Employment

Another record that some employers may want to verify is a military service record. With the national focus on the military with the events in Iraq and Afghanistan, it is likely that employers will receive applications from those with military experience. Many employers find that applicants with military service provide critical skills and training that are extremely valuable in the workforce.

The standard way to verify military records is to ask an applicant for a copy of his or her DD-214. This is the common term for the document given to all members of the military who are discharged from the U.S. Navy, Army, Air Force, Marine Corp, or Coast Guard. The “DD” stand for Department of Defense. The short name is “discharge papers.”

For employers who want more than a cursory confirmation of military service, the story goes much deeper. There are actually a number of different copies of the DD-214 with different pieces of information. A discharged service person receives copy 1, which has the least information. The copy with the codes that gives the nature of the discharge, i.e., General, Honorable, Dishonorable, etc. – and details of service is actually on copy 4. The codes characterize the service record of a veteran. The codes are known as SPD (Separation Program Designator), SPN (Separation Program Number) and RE (Re-Entry) codes. Other issues with access and use of the DD-214 are listed below.

  1. For a discharged service person to get copy 4, the person must actually ask for it.
  2. If a person did not ask for the copy 4, or wants to hide some embarrassing fact, then the person may only present copy 1 to an employer.
  3. If the employer wants copy 4 and the applicant does not have it, then there can be a problem acquiring and understanding the copy. The employer can have the applicant sign a Form 180 and send it to the National Personnel Records Center (NPRC) in St. Louis, Missouri. However, there can be a wait up to six months. Some records are no longer available due to a very destructive fire at the St. Louis facility in 1973. [footnote: Although the government has reconstructed some of the records by use of other military documents. For details about these military records, see http://www.archives.gov/veterans/index.html]
  4. A note of caution. Even after getting a copy 4, there is the issue of translating the military codes. There are websites that provide a complete list of the codes and definitions. However, should civilian employers use these codes for hiring decisions, since the codes were meant for internal military use only? The various codes may represent items that have no foundation or were the result of clerical errors, or are simply not related to job performance.

When making hiring decisions, employers should be very careful before attempting to draw conclusions from various codes on the DD-214. Using the codes on the DD-214 to infer conduct in order to make hiring decisions could result in claims of discrimination, or decisions being made based upon irrelevant or unsubstantiated criteria. The situation can be further complicated if the employers insist that an applicant first obtains a complete DD-214 and then rejects the applicant. That record request could potentially be viewed as evidence of discrimination.

An employer should also exercise caution in using a discharge as a basis of an employment decision. There are four common types of military discharges: honorable, general, undesirable, and dishonorable. Of these, only a dishonorable discharge is given as a result of a factual adjudication equivalent to a criminal trial. In order to avoid potential EEOC claims, an employer should treat a dishonorable discharge in the same fashion as a criminal conviction, taking into account the various factors reviewed in Chapter 11. A general discharge or undesirable discharge may or may not have any bearing on employment and generally should not be the basis of an employment decision.

The best advice may be to use the basic DD-214 to confirm a person was in fact in the military, then ask for the names of references from their military service to obtain job-related information that would be relevant to an employment decision.


3. Urban Myth: Courts Destroy Criminal Records That Have Been Set Aside or Expunged

(This is the third story about Urban Myths and Employment. The first myth was that employers do not need to perform background checks on licensed professionals. The second myth was that credit scores are used by employers for hiring.)

An Urban Myth that can surprise job applicants is that after a judge vacates, expunges, sets aside, defers the adjudication or otherwise judicially erases a criminal record in some fashion, the records disappear and can never be found.

With limited exceptions, the general rule is that the government does not destroy records. In the typical scenario, even if the judge orders a set aside, the consumer’s name can still be found by searching the court indexes and the case can still be viewed as a public record. As a general rule, the only way that a background firm knows that there has been a judicial set aside is to examine the court file where all court orders should be noted.

Of course, each state is different but as a general rule, unless an applicant has been advised by an attorney that the criminal case will be sealed and physically not available anywhere, applicants need to understand that even a criminal case that they thought was erased may still show up.

Even in those situations where the court has ordered the case sealed, the damage may already be done since the record of the case may already reside in a commercial database. If a background firm locates the case in a commercial database, then the background firm has certain obligations under the federal Fair Credit Reporting Act and similar state laws. A background screening firm is required to either notify the applicant that a criminal record is being provided, or must pull and examine the actual court file to ensure accuracy. For employers that want to avoid finding out about criminal records that have been judicially set aside, the best practice it make sure you are working with a screening firm such as Employment Screening Resources that automatically pulls the court file whenever there is a database match to make sure the criminal record is complete, accurate, up to date, applies to your applicant and is reportable.


4. ESR Announcements and Seminars

ESR has recently been featured in two Human Resources articles in national HR publications.

In the October 2007 issue of HR Magazine published by SHRM, the issue of “How Deep Can You Probe,” is examined. ESR president, Lester S. Rosen, is quoted at length on the legal implications of background screening.

In the July issue of Human Resources Executive, ESR president, Lester S. Rosen, is also quoted in an article on “Immigration and Aggravation.” Rosen is quoted on issues involved in using biometric measurements for immigration controls. The article concludes with a quote from Rosen that “The employers who do the bare minimum are the ones who get into trouble. When it’s easy entry, it’s easy fraud.”

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contractors or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR will be participating in the following seminars across the United States.

ESR 2007 Schedule

November 9/10, 2007 Baltimore, MD “Negligent Hiring Mock Trial — College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

November 12, 2007 Tampa, FL The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.comif you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters

 

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

September 2007 Vol. 7, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Urban Myths Continued – Credit Scores are Utilized for Employment

2. Adverse Action Letters: A Critical Step for Employers

3. In the News: Background Checks of Volunteers

4. ESR Announcements and Seminars


1. Urban Myths Continued – Credit Scores are Utilized for Employment

Last issue, ESR addressed the Urban Myth that licensed professions, such as doctors, lawyers, CPA’s or teachers do not need a background check because some governmental agency is in charge of overseeing them.

In this issue, we explore another urban myth that just will not die—that credit scores are used for employment purposes.

An Urban Myth can be described this way; “legends are a kind of folklore consisting of stories often thought to be factual by those circulating them. Urban legends are sometimes repeated in news stories.”

On September 13, 2007, VISA USA issued a press release with the headline: “Americans Unaware That Employers Can Legally Refuse to Hire Job Applicants With Low Credit Scores.” The story said that, “the vast majority of Americans do not know that a bad credit score is more than just a barrier to getting a loan — it may also keep you from getting the job you want.”

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/09-13-2007/0004662292&EDATE

The problem with the story? It is just not factual. The plain fact is that employment credit reports simply do not contain a credit score, since there is no validity in studies that suggest a credit score bears a relationship to employment. It is, of course, fair to say that employers can access an employment credit report which can contain elements of a credit history, so that meeting obligations may be helpful for employment. But to say the credit score is used or provided is factually incorrect.

Unfortunately, the story was then repeated as though accurate in another Bay Area newspaper. The problem with such inaccurate information of course is that it can only cause consumers to suffer unnecessary worry and anxiety. In addition to any other worries, consumers with low credit scores may now think they must worry about employment as well.

Fortunately there was one reporter who saw through the Urban Myth and exposed it for what it was. Columnist Brian O’Connor of the Detroit News set the record straight that employers do not get credit scores and that the credit scores are meant for credit risk and not employment. His advice: “So any job-hunters out there can stop worrying about whether last month’s late utility bill will keep you out of work.”

http://www.detnews.com/apps/pbcs.dll/article?AID=/20070915/OPINION03/709150334/1010/BIZ01

The bottom-line: VISA USA does a commendable job in bringing financial education to consumers, but even they fell for this urban myth. It demonstrates once again that background checks and hiring are complicated subjects that are heavily regulated and present a number of potential traps for the unwary.


2. Adverse Action Letters: A Critical Step for Employers

Employers that obtain background reports must be very careful to understand and follow the adverse action rules as required by the federal Fair Credit Reporting Act (FCRA). Where an employer receives a Consumer Report, and intends not to hire the applicant based upon the report in any way, the applicant has certain rights. Before taking the adverse action, the employer must provide the applicant a copy of the report and a summary of their rights prepared by the Federal Trade Commission.

The purpose is to give an applicant the opportunity to see the report that contains the information that is being used against them. If the report is inaccurate or incomplete, the applicant then has the opportunity to contact the Consumer Reporting Agency to dispute or explain what is in the report. Otherwise, applicants may be denied employment without ever knowing they were the victims of inaccurate or incomplete data.

As a practical matter, by the time an applicant is the subject of a Consumer Report, an employer has spent time, money and effort in recruiting, and hiring. Therefore, it is in the employer’s best interest to give an applicant an opportunity to explain any adverse information before denying a job offer. If there was an error in the public records, giving the applicant the opportunity to explain or correct it could be to the employer’s advantage.

Even if there are other reasons for not hiring an applicant, in addition to matters contained in a consumer report, the adverse action notification procedures still apply. If the intended decision was based in whole or part on the Consumer Report, the applicant has a right to receive the report. In fact, these rights apply even if the information in the consumer report used against an applicant is not even negative on its face. For example, an applicant may have a perfect payment record on his or her credit report, but an employer may be concerned that the debt level is too high compared to the salary. The applicant still is entitled to a notice of pre-adverse action, because it is possible that the credit report is wrong regarding the applicant’s outstanding debts. In a situation where the employer would have made an adverse decision anyway, regardless of the background report, following the adverse action procedures is still the best practice for legal protection.

The question that arises is how long an employer must wait before denying employment based upon information contained in a Consumer Report. The Fair Credit Reporting Act is silent on this point. However, many legal authorities advise that an employer should wait a reasonable period of time before making the final decision. This period should be the time that would be needed for an applicant to meaningfully review the report and make known to the employer or the Consumer Reporting Agency any inaccurate or incomplete information in the Consumer Report. This does not mean that an employer is required to hold the job open for a long period of time. After the first notice is given, and the applicant has had an appropriate opportunity to respond, an employer may either wait until there has been a re-investigation, or fill the position with another applicant. Most employers find as a practical matter that this provision of law does NOT impose any hardship or burden upon an employer. Even though in rare situations an employer may have questions on how to proceed, the clear advantages of a pre-employment screening program far outweigh any complications that can theoretically arise from compliance.

If, after sending out the pre-adverse action notice, the employer intends to make the decision final, the employer must take one more step. The employer must send the applicant a Notice of Adverse Action informing the job applicant that the employer has made a final decision, along with another copy of the FTC form “Summary of Your Rights under the Fair Credit Reporting Act.” There is certain mandatory information that the second letter must contain.

For a more in-depth discussion and sample of pre-adverse and post-adverse letters, as well as additional information about the FCRA, see. “The FCRA in Four Easy Steps for Employers,” at http://www.esrcheck.com/articles/article9.php or contact Jared Callahan at 415-898-0044 or by e-mail at jcallahan@ESRcheck.com


3. In the News: Background Checks of Volunteers

According to a recent article in the Los Angeles Times on September 16, 2007, background checks have become so pervasive in the work world that you might as well count on undergoing one if you’re a candidate for a big job. However, the article pointed out that now volunteer organizations are also requiring checks. See: http://www.latimes.com/business/la-fi-consumer16sep16,1,2119079.story?coll=la-headlines-business

The article quoted ESR President Lester Rosen in parts:

“We first started hearing from volunteer organizations in about 2000,” said Rosen, who was founding director of the National Assn. of Professional Background Screeners. “There had been a shift in the national consciousness.”

The shift, he said, was largely caused by the ever-increasing awareness of sex abuse scandals in the Catholic Church as well as secular organizations.

A scandal could crush an organization by bringing gifts and grants to a near halt. And a group could be subject to big lawsuits if found lax in regard to its volunteers.

Still, organizations that relied on volunteers at first resisted background checks.

“There was a lot of push-back,” Rosen said. “Volunteers were wonderful people. They were coming forward to do good work. It was almost not polite to ask them questions that might seem intrusive.”

“The attitude toward background checks for volunteers has changed, Rosen said. They have become accepted, in large degree, as a necessary evil.

“It used to look like it was a ‘1984’ kind of thing,” he said. “But if it’s presented as part of contributing to the greater good, it becomes part of the volunteer experience.”

Certain states have legislation permitting organizations to take advantage of state fingerprinting or criminal record programs. On October 9, 1998, President Clinton signed the Volunteers for Children Act into law – Public Law 105-251 – amending the Nat’l Child Protection Act of 1993. Organizations and businesses dealing with children, elderly, or the disabled may now use national fingerprint-based criminal history checks to screen out volunteers and employees with relevant criminal records.

The Wisconsin Attorney General’s Office has produced an excellent brochure describing not only their state program, but also the Federal Act and how to obtain FBI background checks; see the online version at www.doj.state.wi.us/dles/cib/forms/brochures/vol_children.pdf

The same office also provides a website listing state sites where volunteer organizations can obtain fingerprint information. see www.doj.state.wi.us/dles/cib/sclist.asp

One question that arises is whether a screening on a volunteer needs to be conducted under the Fair Credit Reporting Act (FCRA), since the volunteer is not paid. The best practice is to still operate under the FCRA, even for volunteers. There is no requirement under the FCRA that a person is only employed if they are paid in monetary form. The Federal Trade Commission (FTC), the federal agency with responsibility to enforce the FCRA, takes the position that the FCRA is given broad interpretation to protect consumer’s rights.

Conclusion: an organization should not assume the FCRA does not apply just because a person is a volunteer.


4. ESR Announcements and Seminars

ESR Announces New printing of the Safe Hiring Manual!

Employment Screening Resources (ESR), announces the release in September, 2007 of an updated and revised fourth printing of “The Safe Hiring Manual -The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen.

“The Safe Hiring Manual” is the first comprehensive book on how to conduct background checks and how to exercise due diligence throughout the hiring process. The revised release examines developing issues in background checking, such as the use of the Internet and social networking sites to screen candidates, screening employees post-hire and the dangers of utilizing home-based operators or foreign data centers for background screening. The book also updates users on new laws and recent developments in the use of credit reports.

Published by Facts on Demand Press, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, background firms, private investigators, and labor lawyers. The 512-page book significantly increases an employer’s chance of avoiding the financial and legal nightmares of even one bad hiring decision.

“This book is intended as the first comprehensive guide to background checks and safe hiring for employers,” explains author Rosen. “The book provides a number of practical, cost-free ‘how-to’ steps that employers can take immediately to avoid hiring criminals with unsuitable records and imposters. It is also intended as a detailed reference book on background checks and best practices.”

The Safe Hiring Manual covers:

  • Effective use of applications, interviews and past employer checks as key hiring tools.
  • Verifying educational degrees and credentials, and how to legally obtain and use criminal records.
  • Compliance with legal mandates including the Federal Fair Credit Reporting Act (FCRA), EEOC issues, Patriot Act, Privacy laws, Sarbanes-Oxley, state law compliance, negligent hiring and other legal issues.
  • In-depth pre-employment background screening and investigative techniques.
  • Critical information on how to identify terrorists and perform international background checks.
  • How to audit the effectiveness of your current hiring program, how to select a pre-employment screening firm and how the background screening industry works.

The book also serves as the text for the only professional development course available on background checks, the 30 hour “Safe Hiring Certification Course,” available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

See: http://www.esrcheck.com/SafeHiringManual.php

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth searches and litigation support ESR has introduced a new service, an “IntegrityCheck,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee on onsite without due diligence, cannot ensure that the same due diligence is applied to vendors, independent contracts or temporary employees.

ESR will be participating in the following seminars across the United States.

ESR 2007 Schedule

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007 Baltimore, MD “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

November 12, 2007 Tampa, FL “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.” Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

7110 Redwood Blvd., Suite C

Novato, CA 94945

415-898-0044

3Back to Newsletters

ESR Newsletter and Legal Update

This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove” feature at the end of the newsletter and you will not receive any future newsletters.

(Reading time: Less than 5 minutes)

August 2007 Vol. 7, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Urban Myth: Licensed Professionals Such as Doctors, Lawyers or Teachers, Do Not Need Background Checks

2. Electronic Signature Law Allows Paperless Background Checks

3. E-Verify New Name for the Basic Pilot Program for Online Right to Work Verification

4. ESR President Featured on SHRM Home Page


1. Urban Myth: Licensed Professionals Such as Doctors, Lawyers or Teachers, Do Not Need Background Checks

A popular urban myth is that members of regulated and licensed professions, such as doctors, lawyers, CPA’s, nurses or teachers do not need a background check because some governmental agency is in charge of ensuring that individuals that commit crimes or misconduct will not have a license to practice their profession.

Unfortunately, nothing can be further from the truth. Licensing is conducted by numerous boards in the 50 states and territories. Due to some of the following factors, it is entirely possible for a criminal to be licensed by a state agency:

  1. The system for a licensing board to discover a criminal conviction is far from perfect. Conviction data may not be sent to a licensing board immediately, or at all. In addition, there can be a substantial lag time between the alleged criminal act, the arrest and the conviction.
  2. Even if the criminal conviction is discovered by the licensing board, the disciplinary process takes time. Unless the licensing board takes action to issue an immediate suspension, the licensee may be able to continue to practice while the administrative procedures drag on.
  3. While the disciplinary action is pending, a licensee may simply move to another state and apply for a license, covering up the proceedings in the first state. In other words, a licensee may try to “beat the discipline” before the new state finds out about it.
  4. Even if a person is suspended in one state, an employer cannot assume that all state licensing boards share information with each other. As we discovered post 9/11, we do not live in a world where the government routinely collects and shares data with other governmental entities.
  5. There can even be situations where a person commits a crime that does not result in losing a license, but is still important for an employer to know about. In fact, in some licensed occupations, a person may even get a “private” reprimand meaning that a check with the appropriate licensing board may not reveal anything.

The bottom-line: Employers that hire a member of a licensed or regulated occupation cannot assume that they are immune from liability simply because a person appears to have a current license. Since it is possible for criminal convictions or acts of misconduct to “fall through the cracks,” an employer still has a duty to exercise due diligence by its own independent background check.

For a listing of the numerous state agencies that license occupations, see: http://www.brbpub.com/pubrecsitesOccStates.asp


2. Electronic Signature Law Allows Paperless Background Checks

One of the biggest sources of pain for recruiters in the hiring process is obtaining the paperwork necessary for the background check and then entering data into an online screening system. Typically, recruiters struggle to obtain a “wet signature,” meaning that they need to have the applicant sign an actual piece of paper containing the background consent and disclosure, and physically get that to the screening firm. If the recruiter utilizes an online background screening system, then the data must be entered on the background firm’s system.

All of those burdensome tasks, however, are a thing of the past. By using electronic signatures with the latest technology, sophisticated background firms can now offer “paperless” online background checking systems, where the applicant fills out the online information and signs an online consent.

Such a process is permissible due to a law passed in n October, 2000, called the Electronic Signatures in Global and National Commence Act (ESIGN). Section 101(a) of the act provides that—

“(a) . . . Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce -(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”

The Federal Trade Commission, which regulates pre-employment screening under the Fair Credit Reporting Act, revisited the issue of electronic authorization in the Zalenski letter (www.ftc.gov/os/statutes/fcra/zalenski.htm) issued May 24, 2001. The FTC concluded that in view of the ESIGN Act, it was possible to use electronic signatures for authorization for a background check. The FTC indicated that whether or not the electronic signature is valid depends on the specific facts of each situation. Specifically;

  • The electronic signature must clearly convey the consumer’s instructions.
  • The FTC stated that as specified by Section 101(e) of the ESIGN Act, that consumer’s electronic authorization “must be in a form that can be retained and retrieved in perceivable form.” In other words, there must be a clear and reproducible record showing the electronic consent.

At a minimum, any firm attempting to obtain electronic compliance online should go through a series of screens, each one giving the applicant the chance to continue or to exit. For each screen that conveys information, there should be an opportunity for an applicant to indicate by a mouse click if they “understand and agree” or “do not understand and agree.” If they hit the “do not understand and agree,” then they should be sent to a screen that makes it easy to obtain more information.

In order to allow recruiters and employers to take advantage of the ESIGN Act and the latest technological developments, ESR has introduced that Applicant Generated Report (AGR) system, where job applicants go online and fill out the information needed for a background check and give an electronic online consent. There is even a “mouse” signature feature. This does away entirely with recruiters performing data entry or sending documents to a screening firm. For more information, see: http://www.esrcheck.com/Applicant_Generated_Reports.php


3. E-Verify New Name for the Basic Pilot Program for Online Right to Work Verification

In August, 2007, the federal government’s Basic Pilot Program used for electronic verification of the right to work in the U.S. was renamed “E-Verify,” and the federal government has announced that the system will be undergoing enactments. Also, new I-9 forms are expected in the future. See: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm

ESR is qualified to act as an employer’s Designated Agent, to perform the verification of employment eligibility checks. Utilizing databases administered by the Department of Homeland Security and Social Security Administration, employers can utilize ESR to check the information on an I-9 form to determine that individual’s employment eligibility. To participate in the E-Verify (Basic Pilot) Program, an employer must first provide ESR with information so that ESR can register an employer. As part of the registration process, an employer must execute a Memorandum of Understanding (MOU) that sets forth the responsibilities of the Social Security Administration, the U.S. Citizenship and Immigration Services Bureau, and the employer.

Although the program is voluntary, many employers find that utilizing ESR as their agent to participate in the program has numerous advantages. Because many employers do not have the time or resources to personally verify the employment eligibility and other critical information of all potential employees, ESR can provide this valuable service. Most critically, if an employee is not verified, ESR can help walk an employer through the necessary steps.

The I-9 service occurs within the first 72 hours of employment. To begin this service, an employer simply provides ESR with a sign-up form so that ESR can set-up an account for the employer. Then, the employer simply advises ESR each time a new employee is hired, and provide the means of verification used. In the event that a worker is NOT authorized, then ESR will assist you through the steps that must be taken.

One state, Arizona, has mandated the use of Basic Pilot Program starting in January 2008.

For more information, contact Jared Callahan of ESR at 888-999-4474 Ext. 240 or jcallahan@esrcheck.com.


4. ESR President Featured on SHRM Home Page

ESR’s President, Lester Rosen, was featured on the front page for the web site of the Society for Human Resources Management (SHRM) during the week of Augusts 20, 2007 as part of a new series of SHRM multi-media interviews. The interview was conducted at the annual national SHRM Staffing Conference in New Orleans this year where Mr. Rosen presented two sessions. For more detail see: www.SHRM.org

ESR is pleased to announce new services that are available to US employers:

  1. Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individual’s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: http://www.esrcheck.com/formi9.php
  2. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  3. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contractors or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

See 2007 Speaking Schedule Below:

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

ESR is pleased to participate in the following seminars across the United States

ESR 2007 Schedule

September 5-7 Keystone, CO Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference

September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.

September 20, 2007 National Teleseminar “Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com

September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits

October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference

November 9/10, 2007 Baltimore, MD “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)

November 12, 2007 Tampa, FL “The Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)

November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Information’s Recruiting 2007 Conference and Expo

November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)

December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim. Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

3Back to Newsletters