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

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

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

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

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

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

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

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

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

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

Mr. Rosen, who is also an attorney, is a nationally recognized writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. 

In addition, Mr. Rosen is the author of the first comprehensive book on employment screening, “The Safe Hiring Manual – Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.”  He also wrote, “The Safe Hiring Audit.”

Mr. Rosen’s speaking appearances have included numerous national and statewide conferences.   He has testified in the California, Florida, and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and he served as the first co-chairman in 2004.

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

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

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

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

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

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

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

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

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

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

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

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

The study, based upon limited data just from the state of New York, found that with time, a person with a criminal record was no greater threat than persons without a criminal record. It suggested that depending upon the offenses included in the study and the age at which the offenses were committed, that after approximately 4½ to 8 years without further arrests, an offender had a minimal risk of re-offending. Of course, the more violent the offense, the longer the time would be required before a person could be considered “redeemed.” Serious crimes such as murder, rape, or child molestation were not part of this particular study, but presumably more serious crimes would have a different result. 

Although there is a temptation for the press to take “sound bites” from the findings, it is abundantly clear from the authors of the study themselves that this is only a beginning. The authors were clear that much more study was needed and that there are substantial issues still to be addressed. The authors’ characterization that the study represents a “significant step forward in area where so little is known empirically” is well-taken. 

The study does not have nearly enough data to reach conclusions from which policy recommendations can be effectively made, has not been reviewed critically by other professionals, and most importantly has a number of drawbacks that can affect its reliability. Many of these limitations were acknowledged by the authors.  There are also unstated assumptions in eh study that would certainly skew any results.         

For a more in-depth analysis of why this study  cannot be the basis to make policy changes, see a more complete  analysis by ESR  at:  http://www.esrcheck.com/Blumstein-and-Nakamura-study-on-redemption-in-Criminology.php 

Our 50 State Criminal History Search Is Generated Using Federal, State And County Databases Containing Over 1.2 Billion Criminal Records Which Are 100% Accurate, Reliable And Updated Daily For A Complete Comprehensive Report Containing All Arrests And Convictions Including Felony, Misdemeanor And Sexual Offenders/Predators 

It is unclear whether this site is just ignorant of the facts or is an intentional rip-off but the results are the same-it is a fraud and a scam.  The suggestion that there is a” complete comprehensive report” of all arrests and convictions is a pure nonsense. 

For the real story, see an article on the ESR website called, http://www.esrcheck.com/articles/Criminal_Databases.php 

There are commercially assembled criminal databases that can be helpful to employers when used by a screening firm since it may lead to further courts to search.  However, any suggestion that these databases all by themselves are real background checks is just a ploy to rip-off the unwary. These databases are far from complete, and accurate.  They can falsely label someone a criminal who is not, and can falsely clear someone who in fact has a serious criminal record.   They may contain records that are not legally useable or have been set aside by a court.  Not all jurisdictions are included, and even included jurisdictions do not always update records. 

For more on why these database claims should be ignored, see:  http://www.concernedcras.com/Responsible_Criminal_Databases.htm

Security Management Magazine, the official publication of ASIS international, featured an article on background screening by ESR as a cover story in its May, 2009 edition.  ASIS International is considered the preeminent international organization for security professionals.  The article can be found at http://www.securitymanagement.com/article/how-avoid-hiring-mishaps-005529

The article, authored by ESR President Lester Rosen, was titled, “How to Avoid Hiring Mishaps,” and covered a range of current issues affecting background screening and due diligence.  Some of the main points are:

1. Criminal databases, although valuable due to the millions of records, should not be used as a primary tool for screening, due to issues of accuracy, timeliness and complexities.
2. Criminal databases are also subject to a number of legal issues, especially surrounding the application of the federal Fair Credit Reporting Act.
3. Even if an employer locates a criminal history, its use for employment is limited by discrimination laws.  The State of New York for example, just passed a series of new laws to ensure that individuals with criminal records are not locked out permanently from society.
4. Employers need to be especially carful in the use of automatic “adjudication rules” for criminal records without taking into account the particulars of the crime, the person and the job.
5. Education fraud is on the increase, and now even includes fake accreditation agencies to accredit fake degrees.
6. Although employers have discovered a treasure trove of information by using the internet and social network sites such as Facebook and MySpace, the jury is still out on whether it is a good idea to utilize those sites.  There can be issues concerning discrimination, violation of privacy rights, the improper use of legal off duty conduct and problems with authenticity and reliability.
7. Given the mobility of workers across international borders, employers need to factor international screening into their programs.

For more information, see www.ESRcheck.com

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

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

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

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

ESR provides Utah employers with a sample policy in the ESR proprietary 50 state guide available after logging onto the ESRnet system. 
 The Utah law is part of a growing trend to restrict access to PII in order to prevent identity theft.  Some courts have attempted to restrict access to identifying information in public records, which makes it harder for employers to receive accurate reports on a timely basis.  State legislatures are also getting involved in privacy issues.    Future blog posts will cover other states.