Pre-Employment Screening Background Check Blog for Employers, Human Resources and Security by ESR

Even if Diogenes had found an honest person, there is a body of modern evidence that suggests it is difficult for anyone, from ancient philosophers to modern day employers, to use an interview to determine who is really who. Employers have a distinct challenge when it comes to spotting liars; industry statistics suggest that as many as 30% of all job applicants falsify information about their credentials, but trying to spot liars at interviews is, well, difficult, if not impossible.

There are lists of so-called “tell-tale signs” that a person is lying XE “lying:tell-tale signs” . For example, employers might observe if a person is avoiding eye contact, fidgeting, or hesitating before answering. Unfortunately, it can be a costly mista ke for an interviewer to think lying can always be detected by such visual clues by relying upon one’s own instinct or intuition, since some of the so-called “visual clues” can simply be a sign of nervousness about the interview, or stress, and not an intent to lie. In fact, accomplished liars are more dangerous because they can disguise themselves as truthful and sincere. An experienced liar will often show no visible signs.

The problem is further complicated because many people feel they can detect who is lying and who is not. Studies have demonstrated that most people are poor judges of when they are being told the truth and when they are being deceived. Paul Ekman XE “Ekman, Paul” , a psychology professor in the Department of Psychiatry at the University of California Medical School in San Francisco XE “Department of Psychiatry at the University of California Medical School in San Francisco” , is the author of thirteen books, including Telling Lies. XE “Telling Lies”   Ekman has tested about 6,000 people who are professionals trained to spot liars, including police officers, lawyers, judges, psychiatrists, and agents of the FBI, the CIA and the Drug Enforcement Administration, to determine if they can tell if someone is lying. According to his research, most people are not very accurate in judging if a person is lying. The average accuracy in studies is rarely above 60%, while chance is 50%. Even among professional lie catchers, the ability to detect liars is not much better than 50%. In one study, customs agents who interviewed people at customs stations did not do any better than college students.

Some interviewees tell lies they have ingrained in their life story. They have created identities and legends of their own and, when they tell their stories, they are not fabricating on the spot. They put “it” on their resumes and talk about it and tell their friends about it. It becomes part of their personalities and personal histories because they have told it so often. It becomes second nature as they retell it again and again.

Conversely, even if a hiring manager does have an inkling a person is lying at an interview, a hiring manager may squash that instinct as just a feeling and not act on it.

That does not mean that some liars cannot be detected at interview.20Some firms offer a one-day course specifically designed around interviewing of applicants. However, for most people, it’s a flip of the coin.

Employers, HR and Security professionals should remember that as valuable as instinct may be, it does not substitute for factual verification of an applicant’s credentials through background checks and other safe hiring techniques.

For more information, see: The Safe Hiring Manual, by ESR President, Lester S. Rosen at: http://www.backgroundchecktraining.com/Safe-Hiring-Manual.asp

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

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

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

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

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

Megan’s law contains a provision which prohibits the information to be used when it comes to insurance, loans, credit, employment, education, housing or accommodation or benefits or privileges provided by any business.  California Penal Code Section 290.4(d) (2).  

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

The problem for employers that want to use this information:  There is no legal definition for the term “person at risk.”  Neither the California Penal code, the legislative history of the section or the Megan’s law website defines a “person at risk.”

Until a court provides a definition, employers are well advised to apply a common-sense approach by looking at risk factors associated with the nature of the job. For example, there is a widespread industry agreement that vulnerable individuals are at risk, such as the young, the aged, the infirmed, or the physically or mentally disabled. In addition, people inside their own home are likely to be at greater risk, since it is harder to obtain help, so home workers may be considered a population that works with people at risk.  Another category is workers that operate under some sort of badge or color of authority or who wears a uniform.  In that situation, a person may let their guard down.  Until a court makes a clear decision, employers should make an effort to determine if there is a good faith belief that it is reasonably foreseeable that a member of a group at risk could be negatively impacted if a sexual offender was hired.  

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

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

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

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

The bottom line: Where an employer is hiring an applicant for a position where it is foreseeable that there would be contact with members of groups at risk, then the sexual offender database search can be valuable.  However, employers should keep in mind that there are limitations that have yet to be fully defined by courts or the legislature.

A recent California appellate court case, Starbucks Corporation v. Lord, addressed the issue of how applicants are asked about criminal records on an application form.  A class action was filed against Sta rbucks Corporation on behalf of 135,000 unsuccessful job applicants on the basis that the Starbuck “application contains an ‘illegal question’ about prior marijuana convictions that are more than two years old.”  The lawsuit was claiming $200 per applicant, which meant Starbucks was facing a potential exposure of $26 million dollars.

On the application form Starbucks asked, “Have you ever been convicted of a crime in the last seven (7) years?”  It then states, “If Yes, list convictions that are a matter of public record (arrests are not convictions). A conviction will not necessarily disqualify you for employment.”

On the reverse side of the application, just before the signature line, Starbucks clarified the criminal question with a disclaimer that reflects protections afforded job applicants under California Labor Code sections 432.7 and 432.8:

“CALIFORNIA APPLCIANTS ONLY: Applicants may omit any conviction for the possession of marijuana (except for convictions for the possession of marijuana on school grounds or possession of concentrated cannabis) that are more than two (2) years old, and any information concerning a referral to, and participation in, any pre-trial or post trial diversion program.” 

The disclaimer however, was the very last sentence in a 346 word paragraph that went into other areas, including employment being at will, release of information, misrepresentations in the application and even disclaimers about Maryland and Massachusetts.  

The plaintiffs were concerned that since the disclaimer was physically separated from the question about past crimes and was essentially buried in the fine print, those applicants either would “overlook the disclaimer, or would not want to go back and cross out their previous responses, or ask for a clear copy.”

The Court agreed that the there was an issue whether the “one-size-fits-all style” of applications used was ambiguous or not.

However, the court also found that two of the plaintiffs in the case, in fact, were not harmed by any ambiguity since they both testified that they understood the question and had no drug history anyway.  Because there was no one suing that had actually been harmed, the Court ended the case in Starbucks favor. 

The Court discussed how allowing these kinds of suits by plaintiffs that were not actually harmed would potentially “ create a whole new category of employment-professional job seekers, whose quest is to voluntarily find (and fill out) job applications which they know to be defective solely for the purpose of pursing litigation.  This is not the law in California.”

As a result of this case, a California employer should review their application form with their attorney or Human Resources for legal compliance.