All posts by Les Rosen

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.

(Reading time: Less than 5 minutes)

September 2006 Vol. 6, No. 9

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Emerging Trend: Discrimination Lawsuits from Ex-Offenders Rejected for Jobs

2. Dispelling Urban Myths: Credit Scores Not Used for Employment

3. Nominations for the Biggest Mistake Employers Make When Hiring

4. ESR Speaking Schedule – from New York to San Diego


1. Emerging Trend: Discrimination Lawsuits from Ex-Offenders Rejected for Jobs

Two events occurred recently that may show an increasing national trend: ex-offenders who are denied employment based upon their past criminal records seeking legal redress through discrimination lawsuits.

A continuing education event held this month in a large eastern state included discussions on how to sue employers and background firms for discrimination on behalf of job applicants denied employment due to a criminal record for discrimination. The discussion reportedly included legal aid lawyers who assist low-income persons in attempting to obtain employment, government lawyers and private lawyers who could take cases to sue employers and background firms.

A second event was a case handed down last month in Hawaii. A large national retailer discharged an employee who was being promoted to management and a criminal background check revealed a previous conviction for drug use. Apparently, there was no background check when he was first hired, and he did pass a drug test. A lower court dismissed the case but the Hawaii Supreme Court ruled that the consumer was allowed to proceed with his lawsuit since Hawaii law specifies that an employer may utilize a criminal record for hiring and termination provided “the criminal record bears a rational relationship to the duties and responsibilities of the position.” See: HRS Sec. 378-2.5(a).

These two events that took place thousands of miles apart taken together underscore that employers need to carefully examine the proper use and utilization of criminal records in the hiring process. Employers are caught in a classic Catch-22. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. Hiring a person with an unsuitable criminal record in the light of the work to be performed can expose an employer to lawsuits for negligent hiring, as well as place employees and the public at unnecessary risk. Newspapers are full almost every day of stories about workplace violence, children being harmed and lawsuits filed where businesses hired people who were dangerous, unqualified or unfit.

On the other hand, an automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. The EEOC also has made it clear that a criminal record cannot be grounds to automatically deny employment without business justification. (For a discussion on the laws concerning the proper use of criminal records, see chapter 11, “The Safe Hiring Manual,” by Lester S. Rosen, President of ESR (Facts on Demand Press/512 pages).

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. On the other hand, we do not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. For example, the National Association of Professional Background Screeners (www.NAPBS.com) has donated money to programs aimed at helping ex-offenders get back into the workforce.


2. Dispelling Urban Myths: Credit Scores Not Used for Employment

One of the biggest misconceptions in employment screening is that a person’s credit score is being utilized for employment. Recently a story in a major newspaper quoted experts on why credit sores should not be used for employment.

The problem: Credit sores are NOT used for employment purposes. When an employer does utilize a credit report for employment purposes, it is a special form of employment credit report that specifically EXCLUDES the credit score. The reason is simple – there is no rational relationship between a credit score and suitability for employment.

Typically, employers utilize credit reports for three reasons:

  1. To determine if the salary to debt ratio is appropriate. The idea is that if an applicant’s salary does not cover their current debt, there is a potential security issue;
  2. To determine if a person can handle their own financial affairs if they are going to be trusted with handling the employers money or assets;
  3. In the case of a sales position, to determine if a salesperson has the ability to rent cars, purchase airfare and other travel expenses needed to cover their territory.

However, the use of credit reports for employment can be sensitive since it shows among other things where and how a person spends money. Since it is difficult to “score” a credit report for employment purposes, the use of a credit report is often a judgment call.

Employers should approach the use of credit reports with caution for some of the following reason:

  1. The information on the credit report can be erroneous since it is gathered from numerous sources.
  2. Information may not be employment related. For example, if there are debts due to medical bills, that is not likely to affect a person’s suitability for a job.
  3. Employers should be very cautious using a bankruptcy for an employment decision.
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  4. The unjustified use of credit reports could create EEOC concerns.

For an article on credit reports and employment see: http://www.esrcheck.com/articles/article7.php


3. Nominations for the Biggest Mistake Employers Make When Hiring

ESR is asking its clients and readers to share their nomination for the Biggest Mistake employers make when they hire.

Every time an employer makes a hire, the stakes are high. Employees are not only a firm’s biggest source of expenditures and investment, but also a big source of risk. If an employer makes a bad hiring decision, a number of authorities suggest that the cost to an organization can be up to 2 to 3 times the person’s salary, taking into account not only the cost or replacing the person, but the cost associated with the work not being done correctly and the delays in finding and training the right applicant.

There are numerous books, courses, websites and seminars on hiring. Here is our first suggestion for the single biggest mistake a firm can make when hiring (based on seminars given by internationally known consultant Brian Tracy at http://www.briantracy.com):

Comparing candidates to each other instead of comparing them to the ideal candidate.

Many hiring managers make the mistake of settling for the best of the current group of applicants rather than waiting for the right one for the job. The primary reason is the need to hire quick to fill a position. However, if the employee “does not work out,” then the termination process can be painfully slow and expensive. Employers are so gun-shy of termination that many employers make it a slow process to make sure they have given the unsuccessful worker an opportunity to find a position where they can do no harm and failing that, they begin the long process of documenting the termination.

Instead of the common American practice of hiring quick and terminating slowly, managers should do the opposite—hire slowly but terminate quickly. Obviously, a slow hiring process where the employers hold out for who they are really looking for will lessen the need to worry about termination.

If you have a great piece of advice on how to hire to share, please e-mail your suggestions to Jared Callahan at jcallahan@ESRcheck.com for inclusion in a future ESR newsletter.


4. ESR Speaking Schedule – From New York to San Diego

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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

September 30, 2006–San Diego, CA “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)

October 3, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

November 20, 2006— IOMA audio conference–“Background Checks: Legal Use in the Hiring and Talent Management Process

December 5, 2006–Sonoma County, CA “Avoid Problem Employees: Effective Hiring in the Wine industry” NCHRA conference (dentils to be posted)

Contact ESR for further details.


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 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.

(Reading time: Less than 5 minutes)

August 2006 Vol. 6, No. 8

Employment Screening Resources (ESR) Newsletter and Legal Update


1. In The News: Cheap Background Checks Strike Again

2. Three Big Mistakes on Application Forms

3. Proposed Legislation in California Underscores the Dangers of Misclassifying a Worker as an Independent Contractor

4. ESR Speaks and Announcements


1. In the News: Cheap Background Checks Strike Again

Inexpensive criminal searches are back in the news once again, demonstrating why employers need to be careful when using cheap solutions to complicated problems. According to an article posted at azfamily.com on August 14, 2006, a fitness instructor was the subject of a background check by a local gym. The gym utilized a large national background firm that supposedly found a criminal record – a ten-year-old conviction for ID theft with three years probation.

The problem? It was the same name but not the same person. When a local reporter pulled the court file, it was discovered that the actual perpetrator had a different social security number, different date of birth and even a different race than the fitness instructor. The good news is that the reporter was able to get the report revised and the fitness instructor got her job. See: http://www.azfamily.com/news/3oys/stories/KTVK3OYS20060814_background-check.b71a6ad.html

Although the details concerning the exact search were missing from the story, this type of mistake can occur when an employer utilizes a cheap background database device commonly and mistakenly referred to as a “national” criminal search. The problem with a database search is that it can give a false negative or a false positive. A false positive can occur when the database results are reported without anyone going to the courthouse to review the actual court documents to look for identifiers, such as date of birth, to determine who the criminal record actually belongs to.

False negatives occur when a person is “cleared” that actually has an employment related criminal record. In a November 2004 newsletter, ESR related a news story about a firm in New York City that delivers groceries to people’s homes and found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a so-called “national” type of database search performed by a large national background firm. See: http://www.esrcheck.com/newsletter/archives/November_2004.php

The bottom-line: Although the “national” type searches can be very valuable as a secondary or back-up tool because it is national in its reach, it is not a substitute for a real criminal search of county courts at the courthouse level. These databases may have millions of records, but they are assembled from a hodgepodge of different sources and there are substantial questions as to their accuracy and completeness. Any positive results should be followed up at the courthouse to confirm details before being reported to an employer.


2. Three Big Mistakes on Application Forms

Employers have become increasingly aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check.

One of the most effective tools an employer has is the use of an application form in the hiring process. An application enables an employer to directly ask an applicant if they have a criminal record. The advantage is that an employer can use a well-worded application form to discourage applicants with something to hide, and encourage applicants to be open and honest.

Unfortunately, many employers use language in their applications that is either to narrow, too broad or too ambiguous. Each of these mistakes can put an employer in difficulty.

(1) Too Narrow: An example of a question that is too narrow is to only ask about felonies and not misdemeanors, which can be very serious. Most employers would want to know, for example, if an applicant had convictions for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in many states, such as California, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that they have not been convicted of a felony, even though they have serious misdemeanor convictions that an employer needs to know about.

(2) Too Broad: On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. There are a number of limitations under state and Federal law concerning what an employer may legally ask about, or discover, concerning an applicant’s or employee’s criminal records. In fact, it is illegal in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where they are forced to reveal information about themselves that they are legally entitled not to disclose, an employer can actually be sued for “defamation by compelled self-publication.” In other words, by being forced to say something defamatory about themselves, an applicant may be able to file a lawsuit for defamation against the employer.

(3) Too Ambiguous: The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor,” or a similar question that calls for an opinion. The problem is that an applicant is being called upon to make a judgment about their own offense. Whether a misdemeanor, for example, is serious can call for a very complex legal and factual determination on which lawyers could disagree. By asking a question that is ambiguous and leaving waffle room, an applicant can argue that in their mind, the offense was not serious and that their “no” answer was truthful. That is why the question cannot contain ambiguity.

Employers should have their attorney review their employment application to ensure it is using the broadest possible language that is legally allowed in your state. Although ESR does not give legal advice, more information on this topic generally can be obtained from ESR Compliance Director, Vince Pascarella, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Proposed Legislation in California Underscores the Dangers of Misclassifying a Worker as an Independent Contractor

A recurring issue for any business is to avoid the misclassification of workers as independent contractors when they are in fact employees. For an employer, classifying a worker as an Independent Contractor can have many advantages, such as avoiding payroll taxes, unemployment insurance or workers’ compensation. A firm can also avoid having a fixed payroll expense, or having to spend money for benefits such as health, vacation or retirement.

On the other hand, the federal and state governments have an interest in businesses putting workers on payroll to better ensure the collection and withholding of payroll taxes. States want employers to pay workers’ compensation premiums and unemployment insurance. As a result, the IRS and the states have a big stake in ensuring that businesses do not misclassify a worker as an “independent contractor” when in fact they should be on payroll.

A bill ending in the California State Assembly (AB2186) underscores the concern of state governments in the proper classification of workers. It states it is the “intent of the Legislature to prohibit the deliberate misclassification of employees as independent contractors … and to penalize intentional misclassification.” It provides penalties of $25,000 per worker that has been purposefully, willfully, or intentionally classified an independent contractor when they are in fact employees, and raises the stakes to $50,000 per worker if the employer has a pattern or practice of misclassifying.

Employers classifying workers as Independent Contractors are well advised to seek the assistance of their legal counsel or other qualified professional. A number of factors must be considered, but it often comes down to the issue of whether the worker is truly independent, or if they are an employee in disguise because the firm controls the manner and means of accomplishing the goals. Many employers have found out the hard way that the test is much more complicated than they thought.

This is also a potential issue for employers utilizing screening firms that use home workers to perform domestic employment and educational verifications. Not only does it raise issues of professionalism, and the protection and security of private data being sent willy-nilly into living rooms, kitchens and dorm rooms across America, but it raises additional concerns if the workers are misclassified. A screening firm that attempts to cut costs by using at-home operators as Independent Contractors may be running a large potential risk.

The bottom line: ESR strongly suggests that an employer think twice before utilizing any screening service that uses home operators, particularly if they are classified as Independent Contractors.

For more information on the use of home operators by screening firms, and concerns related to privacy, security, professionalism and classification of workers, contact ESR compliance director Vince Pascarella, an attorney at law, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


4. ESR Speaks and Announcements

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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “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)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details


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 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.

(Reading time: Less than 5 minutes)

July 2006 Vol. 6, No. 7

Employment Screening Resources (ESR) Newsletter and Legal Update


1. In the news: Going Online to Research Candidates

2. Florida Lawsuit Questions if Fast Food Restaurants Have a Duty to Conduct Background Checks or Warn Minors if They are Working with a Sexual Offender

3. Say again? Ambiguous References

4. ESR Speaks


1. In the news: Going Online to Research Candidates

It has been a common practice for students graduating from college to investigate potential employers by running them on a search engine such as Google. However, according to a recent news article in the New York Times, the trend is now for employers to not only Google college students, but to research social networking sites as well, such as Facebook, or MySpace. The big problem for college students: social networking sites are intended for other students and often times will have pictures or commentary that they did not intend an employer to see. The predictable result is that some college students are finding difficulty getting interviews or callbacks. The article cited a specific case of a recruiter interviewing at a major East Coast university, who went to a student’s Facebook page. The recruiter was shocked to see explicit photographs and commentary about the student’s romantic escapades, drinking and pot smoking. It even included a picture of the young woman passed out as a result of drinking. That ended that job opportunity.

Because the employer or recruiters are going to the internet directly, and not engaging the services of a pre-employment screening firm, the federal Fair Credit Reporting Act (FCRA) is not involved. That means that an employer is not required to send an adverse action letter if they come across material that they find objectionable. As a result, students can find themselves effectively blacklisted and may not even know why.

Employers are well advised, however, to exercise caution before using the internet to do applicant research. An employer can face allegations of unlawful discrimination if the online research reveals information that may not be used directly, or indirectly, to limit a person’s employment opportunities, such as race, color, religion, national origin, ancestry, medical condition, disability, marital status, or sex (including pregnancy).

Job applicants are well advised to research themselves to find out what is potentially available on the web that potential employers may see.


2. Florida Lawsuit Questions if Fast Food Restaurants Have a Duty to Conduct Background Checks or Warn Minors if they are Working with a Sexual Offender

According to a July 2006 news report, a 16-year-old central Florida teenager has sued her former employer for Negligent Hiring where a fast food restaurant hired a convicted sexual offender as a supervisor, who molested the teenager. According to the suit, the teenage victim was fired after reporting what the convicted sexual offender did to her.

The ex-offender was a 27 year old on probation while working at a fast food place. One of the conditions of his probation was not to be alone with any minor.

Although it is not clear at this early stage if the employer did a background check, or was aware of the criminal background, the case rises interesting points: if the employer did, in fact, know the manager was a convicted offender on probation but decided to hire him anyway, was there an obligation to warn other employees of the danger, especially minors? Although Florida law creates a presumption that an employer was not negligent in their hiring if they perform a background check, there is apparently no statutory requirement that employees be informed of any danger if an offender is hired. According to the article, a state representative, Sheri McInvale, is reviewing existing law to give protection to minors in the workplace.

Part of the problem according to the minor’s lawyer is that in the fast food industry, which has high turnover, independent owners are not required to perform background checks. The lawyer indicated that they are already getting calls of similar events in other fast food establishments. See http://www.local6.com/print/9474803/detail.html

For information on how the Florida law operates to give employers protections, or more information on negligent hiring for your industry, contact attorney and ESR Compliance Director,Vince Pascarella, at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Say again? Ambiguous References

Have you been asked to write a letter of recommendation for someone who does not deserve one and tried to figure out what to do? Have you received similar letters and are not sure what they really mean? Help is available in the form of the “Lexicon of Intentionally Ambiguous Recommendations (LIAR),” by Robert Thornton. This handy volume provides numerous examples of recommendations that can be read in more than one way. Here are a few examples:

  • You will be very fortunate to get this person to work for you (Meaning-She/He is not very industrious)
  • He could not have done a better job if he had tried (meaning-he/she is both lazy and incompetent)
  • He spared no effort in his work (he/she did as little as possible)
  • He would like nothing better than working for you (He would rather do nothing at all)
  • An employee like him is hard to find (He disappears frequently)
  • He is a man of many convictions (He has got a record a mile long)
  • There is no questioning his ability (meaning-he/she gets angry if you do)

4. ESR Speaks

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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 comple
  • 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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Schedule

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.http://www.kennedyinfo.com/audio/Rosen/

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “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)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)

October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO

November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL – Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.


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 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.

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June 2006 Vol. 6, No. 6

Employment Screening Resources (ESR) Newsletter and Legal Update


1. “Continuous Screening”— Factors to Consider

2. Hospitals and Health Care–JCAHO HR 1.20 Compliance

3. Staffing Firms and Screening

4. ESR Speaks at National SHRM Show in Washington, DC


1. “Continuous Screening”— Factors to Consider

In the news recently there have been articles on an evolving product called, “Continuous Screening.” The concept is that a background screening is typically conducted at the point of hire. However, it is possible that after a person is hired, an offense can be committed. A continuous screening program is aimed at running periodic criminal records checks, such as every two weeks or, monthly. These periodic checks have the potential to identify criminal cases that occurred after the person was hired.

However, there are a number of factors to consider:

Caution Using Databases: Since private employers generally do not have access to the FBI national criminal database, such ongoing screening programs are based upon running various proprietary criminal databases, and not by sending researchers to actual courthouses. It is critical to understand that multi-jurisdictional database searches are primarily a research tool only and is not a substitute for a hands-on search at the county level. In addition, not all states have a database that is available to employers, and even where data is available, there are substantial issues about how accurate it is. Databases in each state are compiled from a number of sources. The result is that such databases are a crazy quilt patchwork of data that is not necessarily complete, accurate or up-to-date.

  • False Sense of Security: Employers must clearly understand that because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is a criminal any more than the absence of a name shows he/she is not a criminal. There are many reasons why a criminal would not appear on a database search. The danger is that an employer can develop a false sense of security because a database can “clear” a person who is, in fact, a criminal, or inaccurately label an employee as a criminal when they are not.
  • FCRA Compliance For Accuracy: Even if there is a match, it should be verified by reviewing the actual court records. Under the Fair Credit Reporting Act (FCRA), there are mandatory procedures that must be followed to ensure the maximum possible accuracy of information. In addition, there are a myriad of state laws that control how criminal records can be utilized for employment purposes.
  • Consent Issue: In addition, employers must ensure that such searches are done with consent. In California for example, it is arguable that such continuous searches require a new consent each and every time it is done in order to comply with California state law. Another issue is whether an employer can legally not hire someone, or terminate someone, because they refuse to consent to ongoing criminal record checks.
  • What to do if a Record is Found and EEOC Considerations: If Human Resources conducts continuous criminal checking and finds a record, then the employer needs a written policy and procedure on how to respond to the information legally. Under the EEOC rules, a criminal record cannot be utilized to automatically terminate an employee without some business justification. There are also restrictions on the use of arrests. Employers need to exercise caution in how such records are utilized, and to determine what type of record may be relevant to employment.
  • Impact on Workforce: Another issue is the impact on the workforce for checking on a bi-weekly or monthly basis to see if current employees have become crooks. There may be some industries where the risk factor justifies continuous checking. However, employers need to consider if such continuous checking is appropriate for their organization.
  • The bottom line: Although such continuous searches can be a valuable risk-management tool, an employer needs to address a number of issues. The employer also needs to understand the limitation to the searches and the issues surrounding the legal use of such data. In addition, if an employee commits an offense that is serious, an employer will be made aware an issue exists by the employee’s absence formwork. For employers who believe this may be a service of value, please contact ESR for more information.

2. Hospitals and Health Care–JCAHO HR 1.20 Compliance

One area where a type of continuous checking has been mandated is for hospitals. Effective January 1, 2006, the Joint Commission on Accreditation of Healthcare Organization (JCAHO) required that hospitals and covered health care entities conduct Primary Source Verification (PSV) directly from the licensing sources on all licensed, registered or certified staff. The rule applies to both employees and contract staff and also applies to the process of tracking license renewals. The new standard is contained in HR.1.20.

However, unlike ongoing criminal checks that utilize various databases that are subject to false negatives and false positives, these hospital checks are done using the Primacy Source, which is the most accurate data available. An example of a Primary Source would be the records of an actual state-licensing agency.

For hospitals and covered health care organizations, there is a logistical challenge in obtaining, tracking, updating and maintaining an audit trail for all employees who are required to be licensed, registered or certified. Licenses are typically checked when an employee is first hired, but covered entities must now verify the information from the primary source, track expiration and manage the process of updating records from the primary source in order to be in compliance.


To help hospitals and covered entities comply, ESR has created special software for its healthcare clients called the ESR PSVcheck Database. The software manages and tracks the entire process in accordance with the new standards. For example, the software generates automatic reports on all employees and contractors with licenses that are expiring. The ESR PSVcheck Database provides tools to conduct license verifications for the primary source and to track all current and past licensees. Each department in the hospital can determine if it wants to conduct the Primary Source Verification itself, or have ESR do it. During a JCAHO audit, all necessary information demonstrating compliance with the Primary Source Verification rule is instantly available.

For more information on the database and how to be in compliance after January 1, 2006, contact Vince Pascarella at vpascarella@ESRcheck.com or 415-898-0044 ext. 241


3. Staffing Firms and Screening

Q: A staffing firm reports that a claim was made for monetary damages because it provided a temporary worker to a client who stole money. The client ran its own background check after the theft and discovered that the worker had a criminal background and was on a “federal” sex offender list. Going forward, what are the best practices the staffing firm can utilize and what part does a sexual offender list play in a background check?

A: If a staffing firm sends a temporary worker to a client and does not conduct appropriate due diligence, the staffing firm can only hope that the temp is not dangerous, unfit, unqualified or dishonest. If the staffing firm loses the bet, and it turns out that the temp causes damages, the staffing firm may face the threat of legal action from a now very unhappy ex-client not to mention any victims of the worker’s misconduct.

Instead of playing Russian Roulette and hoping for the best, a staffing firm can take a number of steps to exercise due diligence. For example, well thought out and documented application, interview and past employment check policies cost nothing and can often reveal, in advance, temps that a staffing firm may wish to avoid.

A criminal background check is also an essential element of due diligence. The extent of the criminal checks, and who pays for it, is probably a matter of discussion with the client. Just keep in mind that there is no one standard definition of a “criminal” background check. Private employers cannot generally access the nationwide FBI databases (NCIC), so criminal checks must be performed at each relevant courthouse. A criminal check can vary from a simple one-county check of current residence to more extensive checks of additional past counties where a person lived or worked and can even include federal records. A staffing firm should be careful using any databases. Although a national “multi-jurisdictional” database can be a valuable supplemental research tool, potential gaps in data means they should not be used as a primary tool for a background check.

A background check can also include a sexual offender search. In every state, certain sexual offenders must register with the local police, and under “Megan’s Law,” the public has access to some of this data. Most states have a Website available where some information can be located. The U.S. Department of Justice has aggregated a number of states in an online look-up. A staffing agency should certainly consider such a search, especially if the temporary worker is being sent into any workplace where there are potentially people that may be vulnerable or at risk. However, keep in mind that these sexual offender databases are only a partial tool. Typically, only the more serious sexual offenders are listed, and if a sexual offender fails to register or moves and does not re-register their new address, the information can be incomplete. The staffing firm must also keep in mind the Fair Credit Reporting Act (FCRA) of any searches that are conducted.

In order to make sure there are no ambiguities in exactly what due diligence measures a staffing firm undertakes before placing a worker, a best practice is for a staffing firm to clearly define in its client contract exactly what it is, and is not, doing. For example, if a staffing firm is not conducting a criminal check, then that needs to be spelled out. If the staffing firm is conducting a criminal check, then the contract needs to clearly address issues such as:

  1. Who pays for it
  2. Who conducts it
  3. What the scope of the search is (that is, how many counties are to be searched, how far back in time, and what tools are being used)
  4. Who reviews the results and what the criteria is for not hiring someone

For more information on an effective application, interview and past employment checking program, See: http://www.esrcheck.com/docs/SAFE_Hiring_Program_ver_4.pdf

For more information on sexual offender databases, See http://www.esrcheck.com/sex_offender.php

For information on the federal listing of state sexual offenders, See:, http://www.nsopr.gov/

For more information on screening and staffing firms, please contact attorney Vince Pascarella, a member of the Colorado bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044/ vpascarella@esrcheck.com


4. ESR Speaks at National SHRM Show in Washington, DC

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

ESR President, Lester Rosen, will be a presenter at the SHRM annual conference. Here is a summary of his talk:

    Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep business productive and out of court, including how to obtain and utilize criminal record and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.
    • 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)
  • 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:

    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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Summer Schedule

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.

September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)

September 30, 2006–San Diego, CA “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)

October 2, 2006–Las Vegas, NV “Who are You Hiring– Credential Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio- Biotechnology Industry Organization

November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.


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 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.

(Reading time: Less than 5 minutes)

May 2006 Vol. 6, No. 5

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Lessons for Employers from the Wal-Mart Negligent Hiring Case

2. New Research: Job Applicants Who Cheat on Application Cheat in Life

3. Real Background Checks Versus Cheap Knock-offs

4. ESR Announcements and Seminars


1. Lessons for Employers from the Wal-Mart Negligent Hiring Case

On May 2, 2006, jurors in a South Carolina negligent hiring case found in favor of Wal-Mart where Wal-Mart employed a convicted sexual offender without doing a background check and the offender molested a ten-year-old girl in a Wal-Mart store. Wal-Mart did not dispute the molestation occurred but defended themselves on the basis that at the time it had no duty to do a background check, the employee lied about his criminal record and that Wal-Mart did not do anything negligent.

Wal-Mart faces another negligent hiring trial in South Carolina based upon similar allegations that a 12 year-old-girl was fondled by an employee with two previous convictions for sexual assault at an Orangeburg Wal-Mart store in 2004. Wal-Mart decided in August, 2004 that it would begin conducting background checks on new hires nationwide. According to a news article, Wal-Mart was among the first retailers in the industry to start screening current employees with sex offender registries in every state that allows it.

This case has a number of valuable lessons for employers:

  1. Each negligent hiring case is decided on its own unique facts. Even though this particular jury found in Wal-Mart’s favor, it is important to note that the plaintiff stated sufficient facts for the case to be brought to trial. Once a case goes to trial, it is difficult to predict what a jury will do.
  2. Wal-Mart still had to endure not only the direct cost of litigation and the possibility of a large verdict, but the national publicity of having hired a convicted child molester who molested a child in a Wal-Mart store.
  3. The fact that a job applicant lied about their criminal record does not prevent the case from going to the jury. It is the jury who decides in each case if an employer had a duty to go beyond the application and conduct a background check.
  4. Wal-Mart has revised its hiring practices and now does background checks. Wal-Mart has apparently concluded that the cost of doing background checks is less than the cost of not doing them.

The bottom line: The fact that this particular jury in this particular case found in favor of an employer who hired a child molester without doing a background check does not mean that employers have anything less to worry about. As an economic giant, Wal-Mart was able to withstand a sea of bad publicity, pay the legal fees needed to go through a jury trial and to mount a successful defense. For employers without the economic strength of Wal-Mart, the better path would be to do what Wal-Mart started to do in 2004; exercise due diligence in hiring through background checks.


2. New Research: Job Applicants Who Cheat on Application Cheat in Life

According to research cited in the May 1, 2006 issue of Time Magazine, there is “a lot of evidence that those who cheat on job applications also cheat in school and in life.“ That was the opinion of Dr. Richard Griffith, director of the industrial and organizational psychology program at the Florida Institute of Technology.

Dr. Griffith is the author of a book on job applicant faking that is soon to be published. According to the article, he is concerned that if an applicant fakes a degree, how can they be trusted to tell the truth when it comes to financial statements. See Time Magazine article on “Getting Wise to Lies,” May 1, 2006.

These observations confirm what many employers, security and human resources professionals already know – that if an applicant lies in order to get into a job, there is no way of knowing what lies or acts of dishonesty will occur when they are working for you. This is another reason that employers need to be very careful about who they let into their business in the first place.


3. Real Background Checks Versus Cheap Knock-offs

A recurring issue for employers is how to determine the adequacy of a background check and the adequacy of the background-screening firm providing the check. According to the same Time Magazine article, there are some 700 firms in the US that offer background-screening services.

The national trade association for the background screening industry, the National Association of Professional Background Screeners (www.NAPBS.com) is currently formulating an accreditation program, so that an employer can determine which firms have gone through a rigorous accreditation process designed to demonstrate that a background screening firm has proficient knowledge in all areas of preparation and dissemination of employment-related consumer reports, including privacy rights protections and legal compliance. It does not appear that the accreditation process will provide accredited firms before 2007.

In the meantime, employers who need to ensure that they are dealing with professional background firms that are proficient and legally compliant will need to do their own due diligence.

To assist employers, Employment Screening Resources (ESR) has prepared a chart with 40 critical questions that an employer should ask any provider of screening services. The chart summarizes a number of best practices that employers need to know about before selecting a screening firm.

For example, employers may wish to avoid working with a screening firm that utilizes the following methods while conducting US-based backgrounds:

  • Sends employment and education verifications to home operators, risking both applicant privacy and the quality and integrity of the information provided.
  • Sends information offshore for data entry and processing.
  • Utilizes databases instead of more accurate onsite courthouse searches for criminal records.
  • Reports criminal records based upon a non-existent national criteria instead of understanding the individual rules for each of the 50 states.

The 40 point comparison chart is available at http://www.esrcheck.com/ESRadvantage.php

For more information on how to identify a professional screening firm, please contact attorney Vince Pascarella, a member of the Colorado Bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044, Ext. 241 and vpascarella@esrcheck.com


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule

May 16 and June 20, 2006 – “Avoid Negligent Hiring,” Seminars for Solo HR Departments, San Jose, CA For more information and Registration, See:>>>

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.


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 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.

(Reading time: Less than 5 minutes)

April 2006 Vol. 6, No. 4

Employment Screening Resources (ESR) Newsletter and Legal Update


1. New Survey: Average Cost of Bad Hire 2 Times Salary of Worker Being Replaced

2. Law Firms Face Special Issues in the Use of Background Reports and Credit Checks

3. ID Theft Expert Underscores Importance of Adverse Action Notices to Applicants With a Negative Background Report

4. ESR Announcements and Seminars


1. New Survey: Average Cost of Bad Hire 2 Times Salary of Worker Being Replaced

A new survey has confirmed what every employer and HR professional already knows; it is very costly to make a bad hiring decisions.

According to news reports, Right Management, a division of Manpower Inc (NYSE: MAN), released a study in April, 2006 consisting of a survey of 444 organizations and businesses in the United States.

Significant findings included that the average cost of replacing a bad hire is 2 times the salary of the person being replaced, including recruitment, severance, and lost productivity.

Other costs can include lost customers and market share and higher training costs.

The bottom-line: Each hire is not only a big investment for each employer, but a big source of risk if something goes wrong. The cost and time of making good hiring decisions is small compared to the fallout from a bad decision. Pre-employment screening is certainly one of the critical tools an employer can utilize.


2. Law Firms Face Special Issues in the Use of Background Reports and Credit Checks

According to a special report by ESR, law firms face unique risks when it comes to issues surrounding pre-employment background screening. Some of the special concerns for law firms include:

  • Credit Reports—Although credit reports can be a legitimate hiring tool for certain positions in a law firm, a law firm must ensure that employment credit reports are not obtained from a screening firm for litigation purposes. Credit reports are covered by the federal Fair Credit Reporting Act (FCRA), and federal courts have held that a law firm which pulls a credit report for litigation can be in violation of the FCRA.
  • Following Legal Procedures—If a law firm fails to follow both federal and state laws concerning background checks, a law firm can face the risk of litigation since law firm applicants may be especially knowledgeable of the technical legal requirements associated with background checks. A California law firm discovered that the hard way in a 2005 case where they were sued by a paralegal for a technical legal violation of the California Investigative Consumer Reporting Agencies Act (ICRA). Although the law firm ultimately won the case, the lawsuit underscores that a law firm must be especially careful to follow the law.
  • Failure to Screen Lawyers—Many law firms make the mistake of only screening staff members and not attorneys, under the assumption that an attorney could not have a disqualifying record and still be an attorney. In the medical field, health care providers have made the same mistake about doctors. It is very possible for a licensed professional to have a negative item in their background, but still have a valid license. This can occur, for example, if the professional moves out of state before the matter is resolved or the matter is still under investigation by the licensing board. The most problematic situation is where a professional is hired as a lateral transfer, as opposed to an attorney who is newly admitted.

For an ESR Special Report on issues involving law firms and safe hiring, please contact attorney Vince Pascarella, a member of the Colorado bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044 Ext. 241/ vpascarella@esrcheck.com


3. ID Theft Expert Underscores Importance of Adverse Action Notices to Applicants With a Negative Background Report

A national expert on identity theft underscored the importance of employers following the adverse action rules when dealing with job applicants who are turned down due to negative background reports.

Jay Foley, co-director of the ID Theft Center (http://www.idtheftcenter.com/),

spoke on the importance of giving job applicants a chance to clear up any negative information in a background report. This was part of a panel discussion on privacy and background reports moderated by ESR President, Lester Rosen, at the recent annual conference in Nashville, Tennessee on April 2-5, 2006, of the National Association of Professional Background Screeners (NAPBS), the national professional association for the background screening industry.

Recognizing that background reports are extremely valuable to protect people from harm, Mr. Foley also gave dramatic examples of how negative information can also be the result of someone committing a crime while using a stolen identity. When that occurs, an innocent person can be wrongly reported as being a criminal, when in fact they were the victim of ID theft.

By following the Adverse Action notification requirements of the FCRA, employers can give job applicants who were the victim of criminal ID theft an opportunity to correct the record. Otherwise, a victim of ID theft would be further victimized because they may not know they were being denied a job due to criminal ID theft. Employers would also lose a potentially good candidate.

Under section 604 of the federal Fair Credit Reporting Act (FCRA), when an employer receives a background 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 with a copy of the consumer report and a document prepared by the Federal Trade Commission (FTC) entitled “A Summary of Your Rights Under the Fair Credit Reporting Act.” (This should be provided by the screening service.)

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 (background screening firm) 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. If the employer determines that the decision is final, an additional notice is necessary under FCRA Section 615.

For more information on how to comply with the FCRA and copies of sample pre-adverse action and post adverse action letters, see the ESR Special Report, “The FCRA in Four Easy Steps for Employers.” http://www.esrcheck.com/articles/article9.php


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.
    • 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)
  • 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:

    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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule 

April 27, 2006–National Web conference-“Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA)

May 11, 2006–Alameda, CA- “Ask a Lawyer – Everything you Wanted to Know About Background Checks But Were Afraid to Ask.” East Bay District CALI meeting

May 16–Milpitas, CA “Avoid Negligent Hiring.” Pre-employment Background Screening Trends, Legal Developments and Best Practices For more details, see http://www.esrcheck.com/docs/2006_05_16_Safe_Hiring_Seminar_Flyer.pdf

June 20, 2006–Atherton, CA “Avoid Negligent Hiring.” Pre-employment Background Screening Trends, Legal Developments and Best Practices For more details, see http://www.esrcheck.com/docs/2006_05_16_Safe_Hiring_Seminar_Flyer.pdf

June 27/28, 2006–Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers” See: http://www.searchforcrime.com/Conference/body.htm

Contact ESR for further details.


Employment Screening Resources (ESR) 

http://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 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.

(Reading time: Less than 5 minutes)

March 2006 Vol. 6, No. 3

Employment Screening Resources (ESR) Newsletter and Legal Update


1. International Background Screening a Growing Necessity

2. Workers Compensation Records: Potential Trap for Employers

3. Background Screening Association to Hold Annual Meeting

4. ESR Announcements and Seminars; Attorney and Legal Compliance Expert Joins ESR Team


1. International Background Screening a Growing Necessity

Increasingly, American firms find they need to conduct background screening on individuals who have spent time in other countries. U.S. government statistics show that 11.5 percent of the population consists of immigrants. There are also large numbers of workers from other countries here on temporary work visas. In addition, many U.S. citizens have spent time studying or working abroad.

What these figures tell employers is that only performing employment screening within the U.S. is probably not enough. With the mobility of workers across international borders, many employers find they need to obtain information from outside of the United States on such matters as criminal records, past employment, and educational accomplishments. These checks are generally described as “international background checks.”

A need for an international background check occurs in these situations:

  • An applicant was born abroad and is either coming directly to the U.S. from another country or has not been in the U.S. long enough to rely solely upon checking American references and records.
  • The applicant spent time in another country and the employer wants to obtain data for that time period.
  • An American company is hiring an individual in another country to work in that other country (for a position such as outside sales or marketing representative, etc.).

Because of the perceived difficulties in performing international employment screening, some employers have not attempted to verify international credentials. However, the mere fact that information may be more difficult or expensive to obtain from outside of the U.S. does not relieve an employer from the due diligence obligations associated with hiring. An employer cannot simply take a position that it is harder to exercise due diligence because the research is international.

Nor can an employer simply assume that the U.S. government has performed a background check if the worker was issued a visa. After the events of 9/11, the U.S. Government has increased checks on foreign visitors and workers by checking names against government “watch lists.” However, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S. These government checks are not necessarily aimed at lesser convictions that may be relevant to job performance, or verification of past employment or education credentials.

Here is the bottom line. If an employer hires someone without verifying their international background and the employer is sued for negligent hiring when it turns out that a due diligence check would have uncovered important facts, what is the defense? If a victim has been hurt or injured, then the employer’s testimony will sound very hollow when they did nothing, believing it was too difficult or they did not know how. ESR statistics show that discrepancies in international employment and education checks can occur over 20% of the time.

Although international searches come with their own unique challenges and obstacles, employers have a number of options when it comes to exercising due diligence. However, employers also need to be concerned with international data and privacy protections laws.

For information on verification of international employment and education credentials, see: http://www.esrcheck.com/international.php

For information on internationals criminal checks, see: http://www.esrcheck.com/articles/article.php?article_id=international_fees.html


2. Workers Compensation Records: Potential Trap for Employers

Employers have become very aware of the high costs of compensation claims. The loss to American businesses from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

Before the ADA was introduced in 1990, employers had little legal limitations when it came to asking job applicants about their medical history or past workers’ compensation claims. Now there are numerous legal restrictions that must be observed closely. The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It can be discriminatory to penalize a person who has exercised a lawful right and filed a valid claim.

Some Pointers for Workers’ Compensation Records and Hiring

  1. There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release.
  2. Not all claims are necessarily available. In California, for example, an employer would generally only receive claims that went to the Workers’ Compensation Appeals Board.
  3. Under the ADA, an employer may not inquire about an applicant’s medical condition or past workers’ compensation claims until a conditional job offer has been extended.
  4. Any questioning in a job interview must be restricted to whether the person can perform the essential job functions with or without reasonable accommodation.
  5. Only after a conditional job offer has been extended may an employer inquire about past medical history, require a medical exam, or inquire about workers’ compensation claims.
  6. If a history of filing workers’ compensation claims is found, then the offer may only be rescinded under very limited circumstances, such as:
    • The applicant has lied about a workers’ compensation history or medical condition, or hid some past employment in order to hide a claim;
    • The applicant has a history of filing false claims;
    • The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
    • The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

Bottom-line: Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records as part of the hiring process. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA and applicable state laws.


3. Background Screening Association to Hold Annual Meeting

The National Association of Professional Background Screeners (NAPBS), the national professional association for the background screening industry, will be holding their third annual national conference in Nashville, Tennessee on April 2-5, 2006.

According to its mission statement:

The National Association of Professional Background Screeners (NAPBS) exists to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and foster awareness of issues related to consumer protection and privacy rights within the background screening industry.

The Association provides relevant programs and training aimed at empowering members to better serve clients and to maintain standards of excellence in the background screening industry.

The Association is active in public affairs and provides a unified voice on behalf of members to local, state and national lawmakers about issues impacting the background screening industry.

ESR is pleased to have been a founding member of NAPBS. ESR President Les Rosen served as the chairperson of the steering committee that founded NAPBS and served as the first co-chairman in 2004.

For more information, see www.napbs.com.


4. ESR Announcements and Seminars; Attorney and Legal Compliance Expert Joins ESR Team

  • ESR is pleased to announce that attorney Vince Pascarella has joined the ESR team as Director of Legal Compliance. Vince has spent nearly nine years in the background screening industry specializing in legal compliance issues and pre-employment screening. He also spent two years as co-chair of the Best Practices Committee of the National Association of Professional Background Screeners (NAPBS). That committee operates to establish and promote best industry practices and inform members regarding compliance with applicable laws.
  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

Contact ESR for further details.


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 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.

(Reading time: Less than 5 minutes)

February 2006 Vol. 6, No. 2

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Education Going to the Dogs; Phony Diplomas

2. Study Shows Identity Theft Continues to be Major Issue

3. Cheap Background Checks Can Put Employers and Public at Risk

4. ESR Announcements and Seminars


1. Education Going to the Dogs; Phony Diplomas

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

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

Some of these sites “officially” caution that the diplomas and transcripts are intended for “Novelty and Entertainment Use Only.” However, the fake documents you receive do not have a disclaimer written any place on them. Some sites will even provide phone numbers to give employers in order to verify attendance at a fake school.

A case in point is a recent degree ostensibly “granted” by the University of Arizona for a Bachelors of Business Administration. The only problem is that the degree was issued to the dog belonging to an ESR staff member. Not only that, but he dog had passed away ten years ago! However, according to a very genuine looking degree and college transcripts obtained from an internet site, the deceased dog apparently took a number of business classes in recent years. To an employer not familiar with the genuine degrease issue by that school, it could easily appear to be a genuine diploma.

With statistics showing that resume fraud is a significant issue, employers must be very cautious about accepting a physical diploma as proof of a degree. When presented with a physical diploma or transcripts, employers should fax a copy to the school to confirm its authenticity. Most background firms can tell stories of faxing copies of degrees, supplied by the applicant, to high schools and colleges only to be told the degree is a fake. These fakes have not entirely escaped official attention. In Illinois, the legislature passed a law in 2004 aimed at addressing educational fraud. It is now a Class A Misdemeanor to knowingly manufacture or produce for profit or for sale a false academic degree, unless the degree explicitly states “for novelty purposes only.”

For a copy of the college degree and transcripts issued to our dearly departed canine friend, contact Jared Callahan at ESR at mailto:jcallahan@ESRcheck.com or by phone at 415-898-0044.


2. Study Shows Identity Theft Continues to be Major Issue

According to a recent study released by the Federal Trade Commission, identity theft once again topped the list of consumer complaints filed with that federal agency in 2005. The major metropolitan areas with the highest per capita rates of reported identity theft were Phoenix/Mesa/Scottsdale, AZ; Las Vegas/Paradise, NV; and Riverside/San Bernardino/Ontario, CA.

Other consumer complaints included:

  • Internet Auctions – 12 percent
  • Foreign Money Offers – 8 percent
  • Shop-at-Home/Catalog Sales – 8 percent
  • Prizes/Sweepstakes and Lotteries – 7 percent
  • Internet Services and Computer Complaints – 5 percent
  • Business Opportunities and Work-at-Home plans – 2 percent
  • Advance-Fee Loans and Credit Protection – 2 percent
  • Telephone Services – 2 percent

The full article is located at http://www.ftc.gov/opa/2006/01/topten.htm

As reviewed in previous ESR Newsletters, one of the main sources of identity theft occurs in a business environment. Employers can conduct an internal audit of their privacy and data handling practices by going to the Privacy Rights Clearinghouse web page at: http://www.privacyrights.org/ar/PreventITWorkplace.htm

Background firms also need to pay careful attention to privacy and identity theft in the workplace. A background screening firm should have state of the art security, encryption and strong password protection, in addition to a strong privacy policy. The ESR privacy policy is located at. http://www.esrcheck.com/partners/Privacypolicy.php

One important area of protecting privacy and preventing identity theft–employers should very carefully consider the privacy and data integrity implications of working with a background screening service that utilizes at-home operators to conduct employment verifications. The potential lack of privacy controls can put the employer and applicants at risk. Another area of exposure is when background firms send data offshore to India or other countries for processing where there is little privacy protection. ESR does not engage in either practice.


3. Cheap Background Checks Can Put Employers and Public at Risk

A recurring issue for employers is the proliferation of “cheap” background checks. These are typically multi-state databases containing of millions of public records. Employers need to understand that these databases are NOT the same thing as an FBI “rap sheet” taken from the National Crime Information Center (NCIC). Private employers do not have access to the FBI unless there is a specific state or federal statute, such as laws permitting school teachers or bank employees to be fingerprinted.

These private multi-jurisdictional databases can be extremely valuable when used as a secondary or supplemental research tool to perform a broader search of public records to locate courts to check in more detail. Use of these databases have revealed serious issues that employers would have missed because the databases cover a much wider geographical area. However, because of issues concerning completeness, accuracy and timeliness, employers need to realize that these databases are subject to false negatives, which means an offender can be marked as “clear” even though they have criminal records. There can even be false positives-individuals who are incorrectly identified as offenders who are not.

The issue was highlighted by a story in the Dallas Morning News on October 10, 2004 by writers Diane Jennings and Darlean Spangenberger. The story noted that the Texas state criminal convictions database is accessed more than 3 million times each year by residents and state agencies to conduct background checks on individuals who apply for jobs, licenses, and housing, as well as criminal investigations. However, according to the story, police administrators say the database has so many gaps that pubic security is in jeopardy. The state possesses only 69 percent of the overall criminal records for 2002, according to a report by the Texas Department of Public Safety. The District Attorney for Williamson County was quoted as saying that anyone who depends on the state database for a full and accurate check is foolish.

Bottom-line: Any employer who conducts background checks should ask their background firm if the data is coming from a database or from the courthouse. If a database is utilized, has the background firm specifically advised the employer as to the advantages and limitations of criminal databases and the legal requirements for proper use of database information under federal and state laws?


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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: 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, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.

Current 2006 Spring/Summer Schedule

March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

Contact ESR for further details.


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 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.

(Reading time: Less than 5 minutes)

January 2006 Vol. 6, No. 1

Employment Screening Resources (ESR) Newsletter and Legal Update


1. $500,000 Verdict Illustrates Lessons for Employers

2. California Passes New Law Authorizing Increased Court Fees

3. Danger! Preventing Fraud in Past Employment Verifications

4. ESR Announcements and Seminars


1. $500,000 Verdict Illustrates Lessons for Employers

In a widely publicized case, a jury verdict in favor of a terminated employee against Pacific Bell (now part of SBC) for $500,000 was upheld by a San Francisco federal appeals court that ruled the phone company should have re-instated the employee as a telephone installer, even though the employee did not reveal previous criminal matters on his application, including a charge of attempted murder resulting in nearly three years in a state mental hospital.

According to the case handed down December 27, 2005, plaintiff Joshua Josephs applied for a position with PacBell in late 1997. After working at PacBell for three months, PacBell received the results of a fingerprint check and discovered that the plaintiff had been charged with attempted murder in 1982. Further research showed he was found Not Guilty by Reason of Insanity and spent nearly three years in a state mental hospital. In addition, the plaintiff also failed to report a 1985 misdemeanor conviction for battery on a police officer. Both events occurred while using a different name, which the plaintiff also did not reveal.

The plaintiff filed a grievance asking for re-instatement. PacBell took the position that it was dangerous to hire a person with Josephs’ history because he may “go off” on a customer and it was inappropriate to have the plaintiff in a job where he went into peoples’ homes. PacBell was also unwilling to assign the Plaintiff to a job that did not involve contact with customer homes and did not want the plaintiff back in any capacity. In addition PacBell maintained that because he failed to reveal his true name and the battery charge, he also could not be re-instated.

The plaintiff brought the legal action on the basis that PacBell was discriminating against him in violation of the Americans with Disability Act (ADA) and similar California laws by not re-instating him due to a mental disability. He argued that PacBell regarded him as suffering a mental illness that could result in future acts of violence, even though he had recovered and could perform the job.

The jury heard evidence that:

  1. The victim of the attempted murder was a high school friend who was a quadriplegic (and according to press accounts, the plaintiff was delusional and pulled the respirator plug on his friend).
  2. The plaintiff had recovered from the mental illness.
  3. The plaintiff had successfully worked as a telephone technician for 10 years for another communications firm.
  4. According to his supervisor at PacBell, the plaintiff was performing well and would probably be an asset to the company.
  5. The plaintiff went back to court during his grievance procedure with PacBell and had his misdemeanor criminal record expunged.
  6. Other employees had been re-instated after they cleared up criminal matters they failed to disclose, including a felony domestic violence battery, so that the real reason for not re-instating Josephs was the mental disability.
  7. PacBell did not want to accommodate the plaintiff by putting him in a job that did not require him to go into people’s homes—they did not want to employ him in any capacity due to the history of mental illness.

The jury found that PacBell did not discriminate against the Plaintiff for the initial termination. However, the jury found that the reason for not re-instating was based upon his mental condition and that he was a victim of discrimination.

The court noted that PacBell did not introduce any evidence that it had a written company policy prohibiting employment of persons who have committed violent acts, and in fact, had rehired one employee who had failed to disclose a felony domestic violence battery conviction.

This is intended only as a brief summary of a complicated case with unusual facts and a dissenting opinion. Although the case did not appear to announce any new legal principles and it may be appealed, there are some valuable lessons for employers, including:

  1. Every employer needs to have a written policy in place concerning hiring of individuals with criminal records, particularly if the records are regarding violence, dishonesty or moral turpitude.
  2. In the event a person with a criminal record is hired or re-instated, the precise circumstances of that individual’s situation and the reasons for the decision should be carefully documented, so in the future other applicants with criminal records cannot complain they were the victims of discrimination if they are not hired.
  3. An employer must clearly differentiate between adverse employment decisions based upon a criminal record and a decision based upon a mental disability. If the criminal record is the basis of the decision, then the employer must analyze the nature and gravity of the act, the nature of the job and the age of the offense. If the mental disability is the employer’s concern, then it must consider the ADA implications in its decision, including whether the plaintiff could have performed the essential job functions and if there was a reasonable accommodation available.

For a copy of the case, please contact Jared Callahan at jcallahan@ESRcheck.com or by phone at 415-898-0044. This summary is for information purposes only and is not intended as legal advice. For more information on this case, an employer should contact their legal counsel.


2. California Passes New Law Authorizing Increased Court Fees

The California legislature passed a new law regulating court fees effective January 1, 2006. The law enacted the “Uniform Civil Fees and Standard Fee Schedule Act of 2005,” with the goal of establishing a uniform schedule of filing fees and other civil fees for the California Superior Courts.

The bill will affect a number of court related fees. It may also impact fees charged by court clerks to perform past criminal record checks. Pre-employment screening firms conduct criminal checks by researching names at the county courthouses in order to assist employers in exercising due diligence in the hiring process. One part of the new law requires that the fee for a search of records or files conducted by a court employee that requires more than 10 minutes is fifteen dollars ($15) for each search. If courts charge additional fees for court related services, that could end up increasing the cost of background checks in California.

At present, it is unclear how and when the court clerks in the 58 counties in California will deal with the new law. ESR will be motoring the situation and will keep employers advised of the potential impact of this new law.

The text of the law is available at: http://www.leginfo.ca.gov/pub/bill/asm/ab_0101-0150/ab_145_bill_20050719_chaptered.html


3. Danger! Preventing Fraud in Past Employment Verifications

Verifying past employment is one of the single most important tools for an employer. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even verification of dates of employment and job title is critical because an employer must be concerned about unexplained gaps in the employment history. In addition, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense. Finally, documenting an attempt to obtain references can demonstrate due diligence.

However, it is also critical to prevent fraud in past employment verification. One effective fraud prevention tool is to have a policy that every past employer phone number is independently verified using a third party source. That serves to both verify that the past employer is authentic and the phone number is genuine, and not just the number for a friend of the applicant.

Third party phone number verification can be conducted by using directory assistance or online sources. If the employer cannot be located, then public records can be searched.

ESR has a strict policy that every phone number for every past employment verification is independently verified in order to verify both the employer and the phone number.

Bottom-line: Any employer who outsources past employment verifications should ask their background firm what steps are taken to prevent applicant fraud and to verify the existence of past employers and their phone numbers. Unfortunately, some firms cut corners and leave employers unprotected by simply calling whatever number the job applicant has provided.


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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: 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 will be participating in the following seminars across the United States.

February 9, 2006 National Web conference “Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA)  

February 20, 2006 Anaheim, CA CAHHS Health Care Volunteer Convention “How to Screen, Interview and Place Volunteers…Legally” Click Here 

March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

Contact ESR for further details.


Employment Screening Resources (ESR)

http://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 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.

(Reading time: Less than 5 minutes)

December 2005 Vol. 5, No. 12

Employment Screening Resources (ESR) Newsletter and Legal Update


1. Background Checks on Santa Claus

2. Spotting Diploma Mills and Worthless Degrees

3. Danger! Using At –Home or Foreign-Based Operators for Employment Verifications and Background Checks

4. ESR Announcements and Seminars


1. Background Checks on Santa Claus

It is the time of year when retailers across the US are hiring Santa’s to sit in malls and retail stores to hear what children want for Christmas. However, some retailers and shopping malls are reporting that it has become more difficult to hire a seasonal Santa Claus because many candidates do not pass the background check.

Retailers potentially have an even greater duty of due diligence when it comes to hiring a Santa due to the particular risks involved. Santa’s have close contact with children. Even though a parent may be nearby, children are uniquely at risk with an unsuitable Santa. Not only are children a vulnerable group in general, but a child may instinctively trust the big, round jolly man in a red suit and white beard. Unfortunately, anyone can buy a red suit and beard for less than $50.

According to press accounts, background checks on Santa’s have revealed job candidates with child molestation convictions and other unsuitable elements in their background. Yes, background checks on prospective Santa’s can help to reveal which potential Santa has been naughty or nice.

So, without wanting to be the Grinch that cast a pall on the Holiday season, it is good practice for any retailer, property manager or staffing agency to ensure that the season is not spoiled by a bad Santa.

In the spirit of the holiday season, ESR performs background checks at no cost for its clients on candidates for Santa’s job.


2. Spotting Diploma Mills and Worthless Degrees

An important measure to take in the fight against false claims in the employment process is verifying educational claims. As detailed in the “Safe Hiring Manual,”

Educational credentials can be an important part of an employer’s decision-making process in hiring. Educational achievement tells an employer a great deal about an applicant’s ability, qualifications and motivation. Many employers feel that educational qualifications are a critical factor in predicting success on the job. For many positions, education is a prerequisite in terms of subject matter knowledge or for obtaining the appropriate license for the position.

Studies that examined resumes and applicants’ forms have shown that as many as 30% of all job applicants falsify information about their educational backgrounds. These falsifications can include outright fabrication such as making up degrees from legitimate schools the applicant never attended or valueless degrees from diploma mills.” (Page 221 of the “Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” by ESR President Lester Rosen.)

Degree or Diploma mills are “fraudulent” colleges that offer potential students a degree with little or no actual work. They should not be confused with schools that offer legitimate and valuable distance learning. A degree mill identification process should include the following steps:

  • All institutions of higher education should be compared to databases of schools accredited by recognized accreditation agencies.
  • If a school is not accredited by a recognized accreditation agency, the school should be compared to a comprehensive list of diploma mills.
  • If a school is not accredited and has not been identified as a diploma mill, then the school should be researched and the research thoroughly documented. For example, the school’s web site should be examined to determine if the school claims an accreditation. Keep in mind that some fake schools have actually created fake accreditation agencies as well. The school web site also is reviewed to determine if there is a physical campus, course requirements for graduation, qualified faculty members, a library and other attributes of a school that can provide a real education that translates into qualifications for a job.

ESR follows these procedures for all educational verifications. For more information on how ESR tracks diploma mills on behalf of clients, contact Jared Callahan at jcallahan@ESRcheck.com or call 415-898-0044 ext. 240.


3. Danger! Using At -Home or Foreign-Based Operators for Employment Verifications and Background Checks

Some employers make the mistake of believing that all background screening is done the same way, so that selection ends up depending upon price. Unfortunately, employers who make the decision based upon price can find out the hard way that they did not get what they thought they were paying for. That is because there are ways for background firms to cut costs that leave employers vulnerable.

Here are two potential areas of concern for employers:

  • Using a screening firm that sends out confidential data to the homes of unsupervised home operators for employment verifications. Rather than using more expensive professionals in a controlled environment where there are higher levels of privacy protection, quality control, supervision and training, some firms cut corners by sending work to cheaper at-home workers. At-home workers typically work only as needed on a piecemeal basis, so a screening firm saves money. The at-home workers are unsupervised, and there are few real controls over who can see the confidential data, who is doing the work or if the work is being done properly according to standard procedures.
  • Equally troublesome is sending private and confidential data overseas, such as using foreign data centers or call centers to process data or to make domestic reference calls. Once data leaves the US shores, privacy protections become very problematic and quality control is also an issue.

Bottom line: An employer should seriously consider the implications of using a background-screening firm that utilizes “at-home” operators or foreign operators. An employer can ask its background firm to certify that all domestic work is done in the USA, and no domestic employment verification or data processing is done by people working at-home or outside of the USA.

In future issues, ESR will highlight areas that differentiate quality background screening from firms offering cheaper “knock-off” services.


4. ESR Announcements and Seminars

  • ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource 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: 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 will be participating in the following seminars across the United States.

January 20, 2006 Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)

February 9, 2006 National Web conference “Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA) 

March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars 

March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition

Contact ESR for further details.


Employment Screening Resources (ESR)

www.ESRcheck.com

1620 Grant Avenue, Suite 7

Novato, CA 94945

415-898-0044

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