Tag Archives: Best Practices

What does an employer do if the applicant lies or fakes their education, but it was not a job requirement

By Les Rosen, Employment Screening Resources

From the Employment Screening Resources mailbox:  We had an applicant for a job that did not require a degree.  However, the applicant listed a degree but it turns out he in fact never graduated and never earned the degree.   Can we consider that even though the job did not require a diploma?

Answer:   Generally speaking, if an applicant in dishonest in the hiring process, there is evidence to suggest that person may well be dishonest once in the job.  The dishonesty can be either making a  material omission or a material misstatement of  fact.  Dishonesty is typically a valid reason not to hire. The applicant put down a fake qualification on the application for the employer to consider, and the employer may well take that as act of dishonestly.  The applicant can hardly complain that they are the subject of discrimination,  since dishonest people are not a protected class.

In addition, even though a degree was not required, the  applicant obviously listed the degree to gain an advantage in the hiring process.

However, in this situation, the applicant was dishonest about something that was not a requirement of the job.  Although an employer may well still be on solid ground in not hiring someone  that was dishonest, going forward, a employer may consider two changes to their application to ensure there is no gray area when it comes to being honest in the employment application.

First, an employer should consider including the following language on the employment application where questions about education is asked:

Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision.

This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job.

Secondly, an employer may consider adding the following type of language to their application if not already there:

The information provided by the applicant is true and correct, and that any misstatements or omission of material facts in the application or the hiring process may result in discontinuing of the hiring process or termination of employment, no matter when discovered.

This language in general protects an employer if an applicant is dishonest, even if the information comes to light after the person is hired.

Often times, the key to a successful hire is a well written employment application.  For more information on this and other topics, see: The Safe Hiring Manaul.

Employment Screening Resources (ESR) Releases New Services for Background Checks for Small and Medium Businesses

Employment Screening Resources (ESR), a leading national employment screening firm announced today the release of a web site focused on providing quick and easy access to legally comliant essential background checks to small and medium businesses.  The service is available at: http://www.esrcheck.com/smallbizdivision.php.

The new service, called ESRDirect, provides small and medium business with a simplified online ordering system that is as easy as ordering a book online.  Employers have full control over their budgets since the exact final cost is available before the employer approves the request.  Users of ESRDirect also receive unlimited consultation with background screening specialist so that employers are not on their own in fulfilling this essential function. 

The new site is aimed at removing roadblocks faced by small and medium business that do not hire in large numbers but need to avoid hiring applicants that are dangerous, unfit, unqualified or dishonest.  A small or medium business may not always get the attention they need and may need to use a complicated ordering system that is difficult to remember if not used frequently. The cost can be a big surprise, if extra fees are added on for court costs or other third party fees. 

“With ESRDirect, small and medium employers enjoy the convenience of a simplified, cost-effective and intuitive system that does not drain their time, energy and budgets,” commented Jared Callahan, Director of Client Services, and a national speaker on topics related to safe hiring. “Small and medium businesses now have available the resources and tools enjoyed by Fortune 500 firms to keep their firms safe and profitable and the security of knowing they are conducting legally compliant background checks.” 

ESR further protects small and medium business by not sending data offshore beyond U.S. privacy laws, which endangers applicant privacy and can lead to identity theft. Furthermore, ESR does not expose employers to claims of discrimination by engaging in automated decision making. ESR supplies information to employers so they can determine if there is a business justification to utilize a criminal record in hiring, taking into account the nature of the crime, the nature of the job and the age of the criminal record.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally.  The firm specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround.

About Employment Screening Resources: Employment Screening Resources (www.ESRcheck.com) is a safe hiring partner and provides REAL background checks, not cheap database shortcuts or off-shoring or the use of home operators that endangers privacy. Contact:  Jared Callahan for additional information at 415-898-0044 or by email jcallahan@ESRcheck.com

Family of Alabama University Shooting Victim Hope Tragedy Leads to More Thorough Background Checks

By Thomas Ahearn, ESR Staff Writer

The fatal shootings of three University of Alabama-Huntsville professors during a faculty meeting by another professor reportedly upset about being denied tenure at the school has shined a bright light on the troublesome issue of workplace violence. The tragedy has also raised concerns about how thoroughly background checks should research the past histories of employees. 

In an interview on ABC’s Good Morning America, two step-daughters of one victim questioned how the woman arrested and charged in the shooting deaths — Biology professor Amy Bishop, 42 — could get a job working at the school after reports surfaced about violent incidents in Bishop’s past.

ABC News reported that investigators may re-examine the 1986 shooting death of Bishop’s brother at the hands of Bishop, which was ruled accidental at the time, and also revealed that Bishop was a suspect in a mail bombing attempt on a Harvard Medical School professor in 1993. Investigators told ABC that while investigating the bombing they found a novel on Bishop’s computer describing a scientist who had shot her brother.

After learning about Bishop’s alleged violent past, the step-daughters of one victim told Good Morning America that they hoped the shooting would lead to more thorough background checks for the school’s faculty and staff. They also believed Bishop obtained a list of professors who did not vote in favor of her tenure before the shootings, which left three people injured in addition to the three fatalities. 

“Workplace violence” is loosely defined as threats, assaults, and violent acts — including murder — which occur in, or are related to, the workplace. While there is no one cure-all treatment to eliminate the threat of workplace violence, employers should remain vigilant and closely watch all conditions and events in the workplace in order to ensure the safety and security of employees and customers. 

To help prevent workplace violence, employers may choose to initiate a Safe Hiring Program (SHP) that includes a wide range of tools, techniques, and services to help mitigate the risk of hiring or retaining a potentially dangerous employee. Background checks are considered the cornerstone of an effective SHP.

Protecting workers from workplace violence is an essential reason why employers should conduct pre-employment screening — including extensive and far-reaching background checks — on prospective employees. The goal of a Safe Hiring Program is to ensure that employers follow proper procedures during background checks and pay attention while hiring and retaining workers in order to minimize the potential for workplace violence. 

For more information about workplace violence, background checks, and Safe Hiring Programs, please visit  Employment Screening Resources at:  http://www.esrcheck.com. 

Source: http://abcnews.go.com/GMA/alabama-university-shooting-suspect-amy-bishop-violent-past/story?id=9839348

NAPBS works to increase professionalism in the screening industry

By Jim Crockett, Employment Screening Resources

A big positive development for employers, and human resources and security professionals is that the national nonprofit trade organization for the screening industry has firmly established itself as the voice of the screening industry, and is fostering higher levels of professionalism. The National Association of Professional Background Screeners (www.NAPBS.com), was established in 2003 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.

One of the big frustrations for employers is how to choose a Background Screening firm. After exhaustive efforts on the part of a great many dedicated screening professionals, NAPBS  is conisdering an accreditation program that would give employers much more confidence in selecting a background screening firm. An accreditation program provides a baseline of professional competency that employers can rely upon. Assuming accreditation comes into being, employers will still need to find a screening firm that fits their needs, but at least such a program will help an employer determine whether a firm meets a certain level of professionalism.

Employment Screening Resources was a founding member of NAPBS, and its president, Lester Rosen, was the chairperson of the steering committee that founded NAPBS and served as its first co-chair.

The seven most common employer concerns about background checks

By Les Rosen, Employment Screening Resources

Even with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks.  These are the seven most commons concerns that employers express:

Is it legal?
Employers have an absolute right to conduct lawful pre-employment screening in order to hire the best-qualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know whom they hire with an applicant’s right of disclosure and privacy. Under that law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated the same. In addition, criminal records should not be used to disqulaify an appliucant automatically.  A qualified screening company will assist an employer with legal compliance issues.

Does it invade privacy? 
No. Employers can find out about only those things that an applicant has done in his “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that is a valid and non-discriminatory predictor of future job performance. To maintain privacy, many background firms have Internet systems with secured Web sites. Employers should also take steps to maintain confidentially within their organization.

Is it cost-effective? 
A pre-employment screening will typically cost less than the cost of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, and not all applicants. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, and money is well spent to avoid problems in the first place.

Does it discourage good applicants?
Employers who engage in screening do not find that good applicants are deterred. Job applicants have a desire to work with qualified and safe co-workers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion. 

Does it delay hiring? 
No. Background screening is normally done in just 48 to 72 hours. Most of the information needed is not stored in databases but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays that are out of anyone’s control, such as previous employers who will not return calls, schools that are closed for vacation, or a court clerk who needs to retrieve a record from storage.

Is it difficult to implement? 
For an overburdened HR, security, or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. A qualified pre-employment screening firm can set up the entire program and provide all the necessary forms in a short period of time. Many firms have Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.

How do we select a service provider?
An employer should look for a professional partner, not just an information vendor selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if a employer were choosing a law firm for legal representation, it would not select the cheapest–it would clearly want to know it is selecting a firm that is competent, experienced, and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal Fair Credit Reporting Act. 

Both employers and applicants have learned that pre-employment screening is an absolute necessity in today’s business world. More importantly, they’ve learned due diligence in hiring is a way to keep firms safe and profitable in these difficult times.

Court finds that not hiring someone constitutes an adverse action for purposes of the Fair Credit Reporting Act (FCRA)

In a Court opinion filed December 30, 2009, the U.S. District Court for the Eastern District of Missouri ruled that not getting hired is an ‘adverse action’ as defined by the federal Fair Credit Reporting Act (FCRA), the law that governs background checks. 

In that case, the plaintiff that was representing himself filed legal papers alleging that his report contained inaccurate/erroneous information that the employer and information providers knew would likely have an adverse impact on Plaintiffs ability to secure employment. The Plaintiff further alleged that he was not notified he was not being hired based upon he contents of a consumer report.  Continue reading

Date of Birth Information, Age Discrimination and Background Checks

By Les Rosen, Employment Screening Resources

Most authorities agree that any information tending to reveal a job applicant’s age should not be requested on an employer application form or during an oral interview. Asking for date of birth during the selection process could violate the federal Age Discrimination in Employment Act of 1967 as well as various state civil rights laws. Asking for date of birth tends to deter older applicants from applying.

If the application material contains date of birth information, the inference is that a firm may be methodically denying consideration of older workers. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving information that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Fair Employment and Housing (DFEH) lists specific age questions that cannot be asked. (See: http://www.esrcheck.com/services/legal_illegal_questions.php)

However, special problems are faced when an applicant’s date of birth is not available for background screening. When researching court records, the date of birth is probably the most important factor needed to identify an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.

Under the Federal Age Discrimination Act, there is not an absolute prohibition against asking for date of birth or age. That is a common misconception among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. However, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.

According to a Fact Sheet prepared by the EEOC in 2008:
“Pre-Employment Inquiries:

The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.” See: http://www.eeoc.gov/facts/age.html

This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).

In order to avoid any liability for age discrimination, some employers send information to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a “date of birth workaround” where somehow the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It creates an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.

A better solution is to request date of birth information on the screening firm’s form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring authority in order to avoid any suggestion that age information was used in any way during any step of the hiring process.

It is recommend that employers keep the screening forms and reports separate from the employee’s personnel file or application papers. Employers can have someone in the office physically separate the screening firm’s form from the application so there is no question that a decision maker has not viewed the date of birth before the applications are reviewed.

In addition, to further protect the employer, the consent form used by the screening company should have a statement that the information is used for identification only and that without such information the screening process may be delayed.

As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.

To address any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the appropriate local or state authority or federal EEOC office.
For more information on background checks and employee screening, see: Employment Screening Resources.

Employment Screening Resources Releases Third Annual Trends for Pre-Employment Background Screening in 2010

By Les Rosen, Employment Screening Resources

Employment Screening Resources (ESR) a leading national employment screening firm based in the San Francisco area, has released its third annual Top Ten Tends in Screening and Hiring for 2010.

ESR has identified new trends that are starting to make a difference, as well as old trends that have evolved as the screening industry matures and as plaintiff’s attorneys, including class action lawyers, have started to focus on background checks.  In 2009 for example, ESR noted that the use of social networking sites as a hiring tool would merely be a “hot topic.” In 2010, the trend has been upgraded to concerns over the potential for litigation alleging the unfair use of social networking sites.

Additional forces that will shape the screening industry and hiring in 2010 are advancements in technology as well as the constant struggle to balance privacy and fairness with security and due diligence.  For instance, the ease with which criminal records can be aggregated conflicts with the laws against the discriminatory use of criminal records.

Another issue related to the industry maturing is the proliferation of fly-by-night background check sites that have jumped on the screening bandwagon to make a quick buck, often using fear tactics or the lure of getting “inside information.”  Of course, legitimate employers understand that employment checks are a professional service that is heavily legally regulated.  In fact, concerns over accuracy and compliance with the requirements of the federal Fair Credit Report Act (FCRA) are likely to cause an increase in lawsuits and class actions in 2010.
Other trends are related to privacy, government-mandated screenings, and the emergence of best practice for international background checks. An issue related to the recession is problems associated with fraudulent educational and employment claims.

One very positive development that will help employers in 2010 is that the National Association of Professional Background Screeners (NAPBS) has been firmly established as the voice of the screening industry, and is very pro-active in promoting best practices.

“Employers that do not exercise due diligence to weed out potential bad hires are certainly taking an unnecessary risk and exposing a business to serious legal and financial consequences,” said Lester S. Rosen, attorney at law and founder of ESR and author of two books on background screening.  “On the other hand, an employer also faces a risk if they are not using appropriate tools and do not appreciate that, as with all matters related to employment, this area is heavily legally regulated.” 

The trends are reviewed at: http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php

The top trends are:

1.  Increased focus on whether the use of credit reports and criminal records are discriminatory. 
2. More lawsuits including class action litigation over accuracy, privacy, and consumer rights.
3. Pressure on privacy and data protection including the physical location of data.
4. The battle over databases will continue with the  latest wrinkle being the proliferation of cheap “do-it-yourself” websites and even apps for smart phones. 
5. Lawsuits for unfair use of Social Networking Sites may arise.
6.   Increased technology will bring about the end of paper and faxing for employment screening.
7.  An increase in fraudulent employment and educational claims due to the pressure of the recession.  
8.   I-9 and other government requirements will grow.
9.  Screening will expand beyond new employees to vendors and others on premises and even consumer-generated checks.
10.   International screening will be under more scrutiny and best practices will start to emerge,
11.   Bonus Trend:   The emergence of the National Association of Professional Background Screeners (NAPBS) as the voice of the industry and the continuing efforts to establish best practices

More information on background checks and employee screening is at: www.ESRcheck.com.

Employment Screening Resources (ESR) Releases New Resource Center for “All Things Background Checks”

By Jared Callahan, Employment Screening Resources

Employment Screening Resources (ESR), a leading national employment screening firm announced today the release of a Resource Center on its web site, containing “All Things Background Checks.” 

The new feature is intended to provide one  centralized location for ESR clients to keep current on the critical task of hiring a workforce that is safe and effective.  The site also allows Employers, Human Resources and Security Professionals, Recruiters and Job Applicants to locate resources on screening and to keep current on evolving issues affecting hiring by going to just one site.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening services and drug testing internationally.  The firm specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround. 

The new Resource Center starts with twelve icons, each directing users to a different area, including sections on whitepapers by ESR, Legal Resources, books, courses and even a section for job applicants.  One of the features includes access to ESR’s proprietary summary of staff opinion letters issued by the Federal Trade Commission.  The ESR blog, which is updated frequently, ensures that users of the site are updated on the latest trends and legal developments when it comes to safe hiring.  

“We are very pleased to have the opportunity to provide this critically important information to employers and consumers,” commented Jared Callahan, Director of Marketing, and a national speaker on topics related to safe hiring.  “Background screening is a critical part of the process in identifying the best employees and with this new Resource Center, employers may simply go to just one site to find the information they need.”

See: http://www.esrcheck.com/Resources/

International screening will be more prevalent

By Les Rosen, Employment Screening Resources

2010 Trends in Screening – Trend Ten:  International screening will be more prevalent 

Given the mobility of workers backcross international borders, international background checks have presented challenges for employers. There are 192 countries in the world (using the United Nations membership list). That means that there is a great deal to keep track of. Every country of course has its own system and rules. Added to that are international data and privacy protection issues. In the past. Some employers have avoided international background checks due to the perceived difficulty. Due to the number of resources now readily available, an employer that fails to include an international dimension to their screening could well find that they are not exercising due diligence in hiring when it come to applicants that have spend time outside of the United States. 

However, international screening is more complicated then domestic U.S. screening. The complications are compounded by the fact that different screening organizations are giving information to employers that appears to be contradictory. Some firms say certain countries do not have criminal records available, while another firm may disagree. Some firms say that a special release is needed whereas other firms indicate that for a number of countries that no additional releases are needed beyond what the applicants normally signs. In this age of information, it is odd that there is still uncertainty as to exactly what criminal records are available from each country, and the nature and coverage of the records, such as whether the record is just for a particular court, city or state (or province), or nationwide. This coming year could well see the emergence of generally agreed upon best practices for international criminal checks.

For more informatin on international checks by ESR, see:  http://www.esrcheck.com/international.php

(Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010. This is the Tenth of the ten trends ESR will be tracking in 2010.)