Tag Archives: Criminal Databases

Government Accountability Office Report Finds Sex Offenders Employed at K-12 Schools

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

The United States Government Accountability Office (GAO) recently released a report to the Chairman, Committee on Education and Labor, House of Representatives that revealed high rates of employees in all sorts of positions at both public and private schools – including teachers, volunteers, aides, support staff, and contractors – who had records of inappropriate sexual conduct and convictions for sex-related crimes.

The GAO report dated December 2010 – ‘K-12 EDUCATION – Selected Cases of Public and Private Schools That Hired or Retained Individuals with Histories of Sexual Misconduct’ – examined 15 cases that showed that individuals with histories of sexual misconduct were hired or retained by public and private schools as teachers, support staff, volunteers, and contractors. At least 11 of these 15 cases involved sex offenders who previously targeted children, and at least 6 cases involved offenders who used their new positions as school employees or volunteers to abuse more children.

The GAO report revealed that the following factors contributed to hiring or retention of sex offenders:

  • School officials allowed teachers who had engaged in sexual misconduct toward students to resign rather than face disciplinary action, often providing subsequent employers with positive references;
  • Schools did not perform pre-employment criminal history checks;
  • Even if schools did perform pre-employment criminal history checks, they may have been inadequate in that they were not national, fingerprint-based, or recurring; and
  • Schools failed to inquire into troubling information regarding criminal histories on employment applications.

Some examples of cases from around the United States that the GAO examined for the report include:

  • Ohio: A teacher forced to resign because of inappropriate conduct with female students received a letter of recommendation from the school superintendent calling him an “outstanding teacher.” After being subsequently hired at a neighboring district, he was convicted for sexual battery against a sixth grade girl.
  • Louisiana: A teacher and registered sex offender whose Texas teaching certificate had been revoked was hired by several Louisiana schools without receiving a criminal history check. A warrant is currently out for his arrest on charges of engaging in sexual conversations with a student at one of these schools.
  • Arizona: A school rushing to fill a position did not conduct a criminal history check before hiring a teacher who had been convicted for sexually abusing a minor, even though he disclosed on his application that he had committed a dangerous crime against a child. He was later convicted for having sexual contact with a young female student.
  • California: A sex offender was convicted for molesting a minor in 2000 and the school where he worked was aware of his conviction but did not fire him. After the GAO referred the case to the California Attorney General, officials placed the sex offender, who has since resigned, on administrative leave.

The GAO report also found no federal laws regulating the employment of sex offenders in public or private schools and varying laws at the state level. While some states required a national, fingerprint-based criminal history checks for school employment, others states did not. State laws also varied as to whether past convictions would result in termination from school employment, revocation of a teaching license, or refusal to hire.

GAO performed the study after a 2004 Department of Education report estimated that millions of students are subjected to sexual misconduct by a school employee at some time between kindergarten and the twelfth grade (K-12). GAO was asked to:

  • Examine the circumstances surrounding cases where K-12 schools hired or retained individuals with histories of sexual misconduct and determine the factors contributing to such employment actions and
  • Provide an overview of selected federal and state laws related to the employment of convicted sex offenders in K-12 schools.

To identify case studies, the GAO compared recent data in employment databases from 19 states and the District of Columbia to the National Sex Offender Registry and also searched public records to identify cases where sexual misconduct by school employees resulted in a criminal conviction. GAO ultimately selected 15 cases from 11 states for further investigation.

Employment Screening Resources (ESR) – a leading background check provider accredited by The National Association of Professional Background Screeners (NAPBS) performs sexual offender searches as well as criminal record searches around the United States supplemented by a national multi-jurisdictional search. Although no one search is perfect, ESR recommends a series of overlapping tools that must also include checking professional licenses and verifying past employment, especially looking for unexplained gaps in employment where an offender may try to hide past negative information.

For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:
http://www.gao.gov/new.items/d11200.pdf

Controversial and Discriminatory Use of Job Applicant Credit Reports by Employers Tops Background Screening Trends List for 2011

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

For the past four years, Employment Screening Resources (ESR) – a leading background check provider to employers accredited by the National Association of Professional Background Screeners (NAPBS®) – has compiled a “Top Ten Trends in Background Screening” list of emerging and influential trends in employment background screening predicted by ESR founder and President Lester Rosen, an Attorney at Law and author of ‘The Safe Hiring Manual,’ the first comprehensive guide for background screening.

For the Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011, Rosen chose the controversial, and potentially discriminatory, practice of employers checking credit reports of job applicants as the number one background screening trend for the year ahead. Articles detailing the top background screening trends for 2011 were published on ESR News starting in December 2010. Below is a list of the background screening trends with a brief summary and links to the full article:

A great deal of misinformation about the basics of credit reports, background checks, and job hunting exists in the current economic climate. The topic has been in the news and states have passed laws or are considering laws to restrict the use of credit reports and employment. Furthermore, the U.S. Equal Employment Opportunity Commission (EEOC) is looking closely at this area and has filed lawsuits alleging discriminatory use.

Most employers are not using credit reports to find ways to eliminate people from jobs. A background check that includes a credit report is usually run only after an employer has gone through the time, cost, and effort to find the right candidate. Employers initiate background checks because they are interested in hiring the applicant and are conducting due diligence to make sure there is no reason not to hire. Under the rules of the federal Fair Credit Reporting Act (FCRA), a credit report is only obtained after the applicant has given consent and after a legally required disclosure has been given. If the employer utilizes the credit report in any way not to hire, applicants are entitled to a copy of their credit report, a pre-adverse action notice, as well as a statement of their rights. Before any employment decision becomes final, applicants also have the right to challenge the credit report before any denial of employment is made final.

However, employers should approach credit reports with caution when using them for employment background checks, and must articulate a clear rationale as to why a credit report is related to a particular job. Employers should also be aware of the potential for errors in credit reports. A debt may be reported incorrectly for various reasons or the applicant could be the victim of identify theft which can also lead to incorrect data. In addition, negative entries may well not be a valid predictor of job performance especially since many job applicants have faced a long period of unemployment that may lead to larger debts.  An overly broad use of credit reports by employers could lead to claims of discrimination from a disparate impact on protected groups such as Blacks and Latinos. The idea that credit reports can be used in a discriminatory manner in the eyes of the EEOC means employers will continue to face controversy with discrimination over using credit reports for employment screening.

To read the full article on Trend #1, please visit: http://www.esrcheck.com/wordpress/2011/01/11/controversy-over-whether-employers-using-credit-reports-for-employment-screening-is-discriminatory-increases/.

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and could have been avoided by a simple criminal record check. Checking criminal records demonstrates due diligence and is also an important preventative measure to protect against workplace violence. One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants 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 while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions. In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

To read the full article on Trend #2, please visit: http://www.esrcheck.com/wordpress/2011/01/06/questions-about-criminal-records-of-job-applicants-become-more-difficult-for-employers-to-ask/.

According to an age old platitude, “If something looks too good to be true, it probably is,” so employers should be wary of fast and cheap online criminal background checks that promise accurate and legal information on job applicants at the click of a mouse or the touch of a screen. The need for accurate and reliable information should be obvious to anyone dealing with background checks. Even so, numerous internet sites have sprung up recently promising cheap, almost instant background checks that deliver criminal information to anyone, anywhere, and in seconds. These sites utilize a so-called “national criminal database” and vendors of such databases typically claim to have compiled millions of records from every state so users can know instantly if someone is a criminal at a very low price.

Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, employers who think they are getting a real criminal background check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, while people without records can be incorrectly identified as criminals. Both results carry negative financial and legal implications for employers. Employers using these databases for employment purposes need to understand the limitations and legal exposure associated with using them or risk finding themselves embroiled in litigation. Employers are quickly discovering that fast and cheap online background checks using criminal databases not always accurate or legal.

To read the full article on Trend #3, please visit: http://www.esrcheck.com/wordpress/2011/01/03/employers-discover-fast-and-cheap-online-background-checks-using-criminal-databases-not-always-accurate-or-legal/.

Many employers do not realize they potentially face the same exposure from vendors, independent contractors, and temporary employees from staffing firms as they do from their own full-time employees when it comes to negligent hiring lawsuits. Risk management controls of employers often do not take into account the “need to know” through background checks of workers who are not on their payroll but are on their premises, with access to computer systems, clients, co-workers, assets, and the general public. The law is absolutely clear that if a vendor, independent contractor, or temporary worker harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s full-time payroll. All of the rules of due diligence – which include background checks – apply with equal force to vendors, temporary workers, or independent contractors. A business can be liable if, in the exercise of reasonable care, the business should have known that a vendor, temporary worker, or independent contractor was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work. Employers can also be held liable under the legal doctrine of “co-employment,” which means that even though the worker is on someone else’s payroll, the business that uses and supervisees the worker can still be held liable for any misconduct.

However, many employers have found out the hard way that workers from a vendor or staffing firm or hired as an independent contractor without proper background checks can also cause damage. When an employer is the victim of theft, embezzlement, or resume fraud, the harm is just as bad regardless of whether the worker is on their payroll or someone else’s payroll. No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that everyday when engaging the services of vendors and temporary workers with proper background checks. So-called “temporary” workers can cause permanent problems for employers without the background checks that are performed on full-time employees. As hiring of temporary workers increases – and since the hiring of temporary workers is usually an indication of hiring full-time workers in the future – employers will become increasingly more concerned with background checks of temporary workers in the coming year.

To read the full article on Trend #4, please visit: http://www.esrcheck.com/wordpress/2010/12/28/background-checks-of-temporary-workers-cause-for-concern-for-employers-as-hiring-increases/

In 2011, due to the mobility of workers across international borders in a global economy making it no longer adequate to conduct background screening checks just in the United States, a major trend will be the necessity of international background screening since an increasing number of workers will have spent part of their professional careers abroad. Employers in the U.S. have long recognized that conducting due diligence on new hires with background screening is a mission critical task that can help them avoid being the subject of negligent hiring lawsuits if they hire someone that they should have known – through the exercise of due diligence – was dangerous, unfit or unqualified.

However, with the increased mobility of workers across international borders it is no longer adequate to conduct these background screening checks just in the United States. Background screening also must be done internationally since an increasing number of workers have spent part of their professional careers abroad. The number of foreign countries from which U.S. employers may seek information about applicants with international background screening is expansive, and includes Australia, Brazil, Canada, Chile, China, France, Germany, India, Ireland, Israel, Japan, Malaysia, Mexico, Nigeria, Pakistan, Philippines, Russia, Singapore, South Africa, and the United Kingdom (U.K.).

To read the full article on Trend #5, please visit: http://www.esrcheck.com/wordpress/2010/12/23/international-background-screening-more-necessary-due-to-mobility-of-workers-in-global-economy/.  

A background screening trend that recently emerged where employers used social network sites such as Facebook – the most popular social networking site with over 500 million active users worldwide – to run ‘Social Network Background Checks’ on job candidates should become even more prevalent in 2011, and increase the legal risks for employers. No discussion about background screening these days is complete without an analysis of how the Internet is used for hiring. From social network sites such as Facebook and Twitter to blogs, videos on YouTube, and business connection sites like LinkedIn, employers focus with laser-like intensity on how to use the Internet for background screening job candidates. What is sometimes overlooked in the rush to use the Internet for background screening is the one question employers need to ask: What are the legal risks in using the Internet for hiring? The answer involves issues of discrimination, authenticity, and privacy. If employers insist on using social network sites for background screening, then they must realize that much of the ‘new media’ available to them for background screening is still covered by current employment regulations.

To read the full article on Trend #6, please visit: http://www.esrcheck.com/wordpress/2010/12/21/esr-background-screening-trend-6-for-2011-using-social-network-sites-such-as-facebook-to-screen-job-candidates-increases-legal-risk-for-employers/.   

A background screening trend that gained much attention in 2010 that will continue to do so in 2011 will be increased workplace violence prevention education to help protect both employers and employees. While the term “workplace violence” is appropriate for a quick definition or diagnosis of a problem, fully defining all aspects of “workplace violence” can be nebulous at best. Many employers loosely define workplace violence as: Assaults, other violent acts, or threats which occur in or are related to the workplace and entail a substantial risk of physical or emotional harm to individuals, or damage to company resources or capabilities. The Occupational Health and Safety Administration (OHSA) defines “workplace violence” as “violence or the threat of violence against workers” that involves any physical assault, threatening behavior, or verbal abuse occurring in, or related to, the workplace, and includes behaviors ranging in aggressiveness from verbal harassment to murder. According to the U.S. Bureau of Labor Statistics (BLS), there were 521 workplace killings in the United States in 2009, 420 of them committed by gunfire.

To read the full article on Trend #7, please visit: http://www.esrcheck.com/wordpress/2010/12/16/esr-background-screening-trend-7-for-2011-more-workplace-violence-prevention-education-helps-protect-employers-and-employees/.

A new background screening trend emerging in 2011 will be the increased concern over the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers. A recently signed California law appears to be the first in the United States to regulate the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers collected for background checks, a controversial practice where private data of U.S. citizens – such as names, dates of birth, addresses, and Social Security numbers (SSNs) – is sent overseas, outside the United States and its territories, and beyond the reach of U.S. privacy laws. In September 2010, Governor Arnold Schwarzenegger signed into law California Senate Bill 909 (SB 909), which addresses the issue of personal information being sent offshore. SB 909 – which takes effect January 1, 2012 to allow time for background check firms to provide new releases to employers or modify online language – amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address for “information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

To read the full article on Trend #8, please visit: http://www.esrcheck.com/wordpress/2010/12/14/esr-background-screening-trend-8-for-2011-increased-privacy-concerns-over-offshoring-of-personally-identifiable-information-pii/.

An October 2010 press release from the Department of Homeland Security (DHS) announced record-breaking immigration enforcement statistics achieved under the Obama administration, which included issuing more financial sanctions on employers who hired unauthorized workers than during the entire previous Bush administration. Since January 2009, when President Barack Obama took office, U.S. Immigration and Customs Enforcement (ICE) – the principal investigative arm of DHS – has audited more than 3,200 employers suspected of hiring workers not legally eligible to work in the U.S., debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions, according to the DHS. A summary of fines and penalties from ICE reveals that this surge in enforcement of a legal U.S. workforce included a 500 percent increase in penalties from worksite enforcement actions (over $5 million), a nearly two-fold increase in I-9 audits (2,200), a record-breaking 180 criminal prosecutions of employers, and the debarring of more than 97 businesses, compared to 30 last fiscal year, with average fines exceeding $110,000. Due in large part to increased scrutiny on employers from ICE through I-9 audits – where employee information on Employment Eligibility Verification Forms (“I-9 forms”) is checked for accuracy by Government agents – penalties from worksite enforcement inspections have increased recently.

To read the full article on Trend #9, please visit: http://www.esrcheck.com/wordpress/2010/12/09/esr-background-screening-trend-9-for-2011-e-verify-and-i-9-audits-help-government-find-employers-with-illegal-workers/.

Before this year, employers were largely on their own when selecting a background screening firm. With hundreds upon hundreds of background screening firms to choose from, employers faced a bewildering landscape of competing claims that touted any number of bells and whistles that made it hard to distinguish one background screening provider form another. Some background screening firms had ISO (International Organization for Standardization) certification, but as noted in the article “Backgrounds to the Foreground” in the December 2010 issue of HR Magazine, the ISO designation is not specific to background screening and does not guarantee quality of products or services. Employers were also faced with “commercial” rankings published by private “for-profit” publications, which only added to the confusion. The problem for employers is that background screening is a critical function subject to intense legal regulation, and so the stakes are high. In 2010, the National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) took significant steps towards solving this perplexing problem with the creation of the Background Screening Agency Accreditation Program (BSAAP) that covers all areas related to the background screening process and, most important, is professional and objective and not based upon any commercial considerations. The BSAAP advances professionalism in the background screening industry through the promotion of best practices, awareness of legal compliance, and development of standards that protect consumers.

To read the full article on Trend #10, please visit: http://www.esrcheck.com/wordpress/2010/12/06/employment-screening-resources-top-ten-trends-in-background-screening-for-2011-no-10-new-accreditation-standards-help-employers-select-background-screening-firms/.

The Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011 is available at: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

For more information on background screening or to purchase background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Questions about Criminal Records of Job Applicants Become More Difficult for Employers to Ask

by Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and could have been avoided by a simple criminal record check. Checking criminal records demonstrates due diligence and is also an important preventative measure to protect against workplace violence.

One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants 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 while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions.

In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

This is Trend #2 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Recently filed class action lawsuits alleging that questions about criminal records for employment purposes may discriminate against African-Americans and Latinos since they have higher rates of incarceration underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process. To read the policy, visit: http://www.eeoc.gov/policy/docs/convict1.html.

The EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, states that “with respect to the manner in which a business necessity is established for denying an individual employment because of a conviction record” the EEOC’s underlying position is “that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” As a result, the EEOC holds “that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”

However, the EEOC’s revised requirements for establishing business necessity state that an employer “must show that it considered these three factors to determine whether its decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.”

In addition, the EEOC “continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

According to a July 2010 report from the National League of Cities (NLC) and National Employment Law Project (NELP) – “Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records” – an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. The report features 23 cities and counties that have chosen to “ban the box” on their job applications that asks about an applicant’s criminal record, and defer the criminal background check to the final stages of the hiring process. These cities include: Baltimore, MD, Boston, MA, Chicago, IL, Jacksonville, FL, Memphis, TN, Minneapolis/St. Paul, MN, Oakland, CA, San Francisco, CA, and Seattle, WA.

Some states are enacting “ban the box” laws for questions about criminal records of job applicants on employment applications. For example, an overhaul of the Massachusetts Criminal Offender Record Information (CORI) that took effect November 4, 2010 means employers in Massachusetts can no longer be able to ask about convictions on “initial” job applications because of new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

With more cities, counties, and even states considering the adoption of the “ban the box” policy that removes questions regarding criminal records of job applicants from initial job applications, employers should revisit their policies on using criminal records during employment background checks to remain compliant with federal, state, and local laws.

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. Employment Screening Resources (ESR) – a leading provider of background checks accredited by National Association of Professional Background Screeners (NAPBS) – recommends employers should ensure that their job applications are legally compliant.

  • An employer may NOT ask about arrests or detentions that did not result in a conviction.
  • An employer may only consider convictions or pending cases;
  • There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
  • An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature and gravity of the offense, whether it is job related, and when it occurred.

It is also recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.

In addition, all employment applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application will result in disqualification or termination of employment. When an applicant fails to honestly disclose the existence of a criminal conviction, the employer may be concerned about the lack of honesty involved since negative information honestly disclosed in a job interview may have no effect if the applicant otherwise has an excellent work history.

For more information on what language to use in applications, read ‘Special Report: Criminal Records, Employment and Employment Applications’ by ESR founder and President Les Rosen at http://www.esrcheck.com/articles/crime_and_employment_application.php.

So can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes using a system to identify applicants with a criminal record?

The one thing that employers can be advised with some certainty is that any sort of automatic exclusion policy based upon a job applicant’s status as an ex-offender is likely to expose them to a federal or state EEOC issue. That is why nearly every employment application not only asks about past criminal records but also has a disclaimer that a criminal record will not be used automatically. The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the nature and gravity of the past offense, the relevance to the job and how much time has passed. This is why ESR advises clients to approach automated software processes dealing with past criminal convictions of applicants with extreme caution.

The idea behind these rules is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to pre-judge. Of course, that does not mean a sex offender should be supervising a playground or an embezzler handling money, but only that while there may be a job opportunity for everyone, not everyone is entitled to every job. On the other hand, they need to be employed in an appropriate job, to avoid harm to the employer’s company, workers, or the public, and also to avoid lawsuits for negligent hiring.

There were numerous ESR News blogs in 2010 on the subject of criminal records of job applicants that may assist employers in navigating the issue of discrimination:

A series of recent surveys from the Society for Human Resource Management (SHRM) released revealed that approximately three out of four U.S. businesses – 73 percent – performed criminal background checks for their pre-employment screening programs, and more than 3 out of 4 candidates – 78 percent – underwent criminal background checks for positions with fiduciary and financial responsibility (handling cash, banking, and accounting).

For jobseekers with criminal pasts, a job search can be a frustrating because most employment applications will ask if they have a criminal record. Since job applicants with criminal records face greater challenges in finding employment – and since there are certain jobs where employers will justifiably not hire ex-offenders – ESR President Lester Rosen wrote the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ to help applicants with criminal pasts get and keep work to develop a successful job history. To read the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. For a Spanish version of the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce-SPANISH.php.

The increased focus on whether credit reports and criminal records are discriminatory was Trend #1 in the Employment Screening Resources (ESR) “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.

Just how much information an employer should be able to learn about the criminal past of a job applicant has become an increasingly controversial subject in the current economic downturn, when finding work is tough enough even for a job seeker with a spotless criminal record. Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense.

In other words, employers cannot simply follow a “No one with a criminal record need apply” strategy that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a job-related reason why that person is unfit for that job. As a general rule, ESR believes it is a best practice for employers to have written policies on important issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com or http://www.esrcheck.com/wordpress/tag/criminal-records/.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Second of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.eeoc.gov/policy/docs/convict1.html

Employers Discover Fast and Cheap Online Background Checks Using Criminal Databases Not Always Accurate or Legal

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

According to an age old platitude, “If something looks too good to be true, it probably is,” so employers should be wary of fast and cheap online criminal background checks that promise accurate and legal information on job applicants at the click of a mouse or the touch of a screen.

The need for accurate and reliable information should be obvious to anyone dealing with background checks. Even so, numerous internet sites have sprung up recently promising cheap, almost instant background checks that deliver criminal information to anyone, anywhere, and in seconds. These sites utilize a so-called “national criminal database” and vendors of such databases typically claim to have compiled millions of records from every state so users can know instantly if someone is a criminal at a very low price.

Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, employers who think they are getting a real criminal background check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, while people without records can be incorrectly identified as criminals. Both results carry negative financial and legal implications for employers.

Employers using these databases for employment purposes need to understand the limitations and legal exposure associated with using them or risk finding themselves embroiled in litigation. Employers are quickly discovering that fast and cheap online background checks using criminal databases not always accurate or legal.

This is Trend #3 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Here are just some of the issues with these databases:

  • Multi-jurisdictional databases are NOT official FBI database searches. FBI records are only available to certain employers or industries where Congress or a state has granted access. Searches offered by “fast and cheap” web sites are drawn from government data that is commercially available or has been made public.
  • So-called national criminal searches are a research tool only and are not a substitute for a hands-on criminal record search at the county level by researchers. The best use for these databases is to indicate additional places for a background check firm to search.
  • Many states have very limited database information available for employers. Examples of states where databases may have limited value are California, New York, and Texas.
  • Databases in each state are compiled from sources that may not be accurate or complete and can contain results that are “false positives” or “false negatives.” A person’s name in a database is not an indication that person is criminal any more than the absence of that person’s name shows the person is not a criminal.
  • Database searches can be inaccurate due to searches often being based upon matching last name, the date of birth, and the first three letters of the first name to eliminate computer matches that are not applicable. However, in some states, there is limited or no date of birth information or a person may have been arrested under a different first name.
  • There are also significant legal complications for employers since any search from an internet site for employment is subject to the federal Fair Credit Reporting Act (FCRA) which highly regulates employment background checks. There are some “instant criminal check sites” that do not bother to make that clear or mention it only in the “fine print.”

Accurate background checks are important because inaccurate or “stale” (not current) information on background checks can disrupt the lives and careers of employees and job seekers alike and as the following examples from ESR News indicate:

In addition, in some cases “fast and cheap” can be a code word a background check scam. With so many people looking for work in the current economy and willing to do just about anything to land a decent job, background check scams were unfortunately a commonplace occurrence in 2010. Instances of falsified or outright fake background check investigations for employment purposes are on the rise, as indicated by these reports on ESR News:

With the unemployment rate just under 10 percent and approximately 15 million Americans unemployed, the Better Business Bureau (BBB) issued a warning to jobseekers about scammers taking advantage of the current weak economy by targeting unemployed people desperate to work, scams including false background checks and unnecessary credit report checks. The BBB has identified the following job scam “red flags” to help jobseekers to protect themselves while they search for a job:

  • The employer asks for money upfront for a background check or training: The BBB has heard about jobseekers that paid phony employers upfront fees for supposedly required background checks or training for jobs that didn’t exist.
  • The employer requires check of a credit report: The BBB warns that employers that ask job applicants to check their credit reports before they get work may be attempting to get the jobseekers to divulge sensitive financial information.
  • The employer offers the opportunity to become rich without leaving home: The BBB advises jobseekers to be use extreme caution when considering a work-at-home offer and always research the company with BBB at http://www.bbb.org.
  • The employer offers salary and benefits that seem too-good-to-be-true: The BBB uses an old adage – “If the deal sounds too good to be true, it probably is.” – to demonstrate how phony employers lure unsuspecting job hunters into their scam.
  • The employer’s e-mails have many errors in grammar and spelling: The BBB warns that online fraud is often done by scammers outside the U.S. and English is not their first language, as evidenced by poor grammar and misspelling of common words.
  • The employer asks for personal information too quickly: The BBB warns that job applicants should never give out their Social Security Numbers or bank account information over the phone or by email until they confirm the job is legitimate.
  • The employer requires money wire transactions or dealing of goods: The BBB also warns jobseekers about cashing checks sent by companies and wiring a portion of the money to another entity or receiving and mailing suspicious goods.

The recent surge in scams involving background checks underscores the need for employers to make sure that they are dealing with legitimate screening firms when outsourcing background checks. At a bare minimum, the background check firm should belong to the National Association of Professional Background Screeners (NAPBS). In addition, NAPBS has announced a Background Screening Agency Accreditation Program (BSAAP) that will also help employers locate professional and legitimate suppliers of background checks.

These stories are proof positive why employers cannot rely only on cheap and quick searches using Internet databases or search engines like Google check in place of “real” background checks from companies like Employment Screening Resources (ESR), which is accredited by the NAPBS Background Screening Credentialing Council (BSCC). ESR uses trained background check specialists that research criminal and civil court records, driving records, credit checks, social security number traces, employment references, educational verifications, and more.

Hiring (and firing) decisions made by employers must be based on timely and accurate background check information. Erroneous and out of date background check information exposes employers not only to bad hiring decisions but also to potential litigation from those people harmed by such data. In fact, the subject of database information accuracy gained national attention when the Federal Bureau of Investigation (FBI) came under fire for “flawed” information used in government background checks. As reported in ESR News:

For more information on databases searches, read ‘Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly’ by ESR founder and President Lester Rosen, which investigates all aspects of criminal database searches:

  • The Good: Criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
  • The Bad: Despite their value, criminal records databases have serious flaws, including incomplete records, name variations, and untimely information. Also keep in mind that database checks by private screening firms are NOT FBI records. 
  • The Ugly: Inaccuracy is only one pitfall of national criminal database searches. They also make employers vulnerable to a number of legal landmines, especially when it comes to confirming if the record is current and accurate and even belongs to the applicant. 

For more information about “real” background checks, background check scams, FBI criminal databases, and how employers can find the most accurate and current data about job candidates, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Third of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

ESR NEWS ALERT: Massachusetts CORI Reform Law Prohibits Employers from Asking About Criminal Convictions on Initial Job Applications Effective November 4, 2010

By Thomas Ahearn, ESR News Blog

Starting November 4, 2010, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications because of new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

As previously reported on the ESR News Blog, the new law overhauls the Commonwealth’s Criminal Offender Record Information (CORI) law and contains several provisions that will affect the way employers use the criminal histories of prospective and current employees and impact Massachusetts employers performing criminal background checks on job applicants and employees.

While the new law does not prevent employers from obtaining criminal histories of job applicants or employees contained in the CORI database, under the CORI reform law those records will no longer contain:

  • Felony convictions closed for more than ten years, whether convictions occurred more than ten years ago or individuals were released more than ten years ago.
  • Misdemeanor convictions closed for more than five years.

In addition, the new law also includes the following provisions:

  • Employers that decide not to hire applicants or take adverse actions based on criminal histories in CORI reports must first give applicants copies of the reports.
  • Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.
  • Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.

After the initial application of the CORI reform law provision which restricts questions by employers about criminal history on initial written job applications takes effect on November 4, 2010, employers that continue to ask questions on initial written applications about felony or misdemeanor convictions after that date may be subject to liability under the new law, experts warn.

For more information, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Sources:
http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256
http://www.esrcheck.com/wordpress/2010/10/05/new-massachusetts-cori-reform-law-prohibits-employers-from-asking-about-criminal-convictions-on-initial-job-applications-starting-november-4/

New Massachusetts CORI Reform Law Prohibits Employers from Asking About Criminal Convictions on Initial Job Applications Starting November 4

By Thomas Ahearn, ESR News Blog

Starting November 4, 2010, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications.

In August 2010, Massachusetts Governor Deval Patrick signed into law new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

The new law overhauls the Commonwealth’s Criminal Offender Record Information (CORI) law and contains several provisions that will affect the way employers use the criminal histories of prospective and current employees and impact Massachusetts employers performing criminal background checks on job applicants and employees.

According to a ‘Management Alert’ from law firm Sayfarth & Shaw, while the new law does not prevent employers from obtaining criminal histories of job applicants or employees contained in the CORI database, under the CORI reform law those records will no longer contain:

  • Felony convictions closed for more than ten years, whether convictions occurred more than ten years ago or individuals were released more than ten years ago.
  • Misdemeanor convictions closed for more than five years.

In addition, the alert indicates the new law also includes the following provisions:

  • Employers that decide not to hire applicants or take adverse actions based on criminal histories in CORI reports must first give applicants copies of the reports.
  • Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.
  • Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.

As previously reported on the ESR News Blog, the initial application of the CORI reform law provision which restricts questions by employers about criminal history on initial written job applications will take effect on November 4, 2010. Employers who continue to ask questions on initial written applications about felony or misdemeanor convictions after that date may be subject to liability under the new law, experts warn. The other provisions described regarding the new law do not take effect until February 6, 2012.

For more information about employment background checks and the latest legal updates for employers, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256
http://www.seyfarth.com/dir_docs/news_item/8795eabd-0b60-47f6-9164-a58c9faf0d7a_documentupload.pdf
http://www.esrcheck.com/wordpress/2010/08/12/new-massachusetts-law-prohibits-employers-from-inquiring-about-criminal-convictions-on-initial-job-applications/

Error in Criminal Database Search during Background Check Falsely Labels Candidate a Crook

By  Thomas Ahearn, ESR News Blog

A story from south Florida demonstrates how criminal results found in database searches during background checks may be incorrect and the problems and embarrassment that can result from such mistakes.

According to a report on NBCMiami.com, a candidate running for Cooper City, FL commission named David Nall was falsely labeled a criminal after a required background check database search erroneously stated that he had been arrested for credit card fraud in 1987.

Due to a recently passed ordinance, a background check on all nine candidates was conducted by City Hall, NBCMiami.com reports, and although City Hall never published the results of the background checks, they were released to five parties – including the Mayor’s Office – who requested them.

By the time Nall – who had no criminal record in a subsequent Florida Department of Law Enforcement (FDLE) check – was made aware of the mistake on his background check, supporters of his opponent’s campaign had already gone door-to-door with the false report and spread news of his supposedly crooked past through the small town, according to NBCMiami.com. Nall even told the South Florida Sun-Sentinel that that his ten-year-old daughter even asked him if he was a criminal.

NBCMiami.com also reports Cooper City blamed the incident on a defect in the database of the background check vendor,   and posted a note on the City Hall website saying Nall had a clean record and apologized for releasing false information about him:

PUBLIC NOTICE CITY OF COOPER CITY CORRECTION AND RETRACTION OF INACCURATE REPORT ON CANDIDATE BACKGROUND

Please be advised that pursuant City Commission Resolution 10-8-4, as adopted on August 17, 2010, the City attempted to access a criminal history record check for all City Commission candidates for the November 2, 2010 City election. However, because of a defect in a portion of the criminal history record search data base, inaccurate information was received by the City (and made available for public inspection) mistakenly suggesting that District 2 Commission candidate David A. Nall had a criminal record from a 1987 matter. As a result of a prompt objection from Candidate Nall, the City immediately examined the matter further and has determined that the criminal history report received by the City was inaccurate and that there is no verification that any criminal violation ever occurred. Accordingly, please be advised that based upon reliable FDLE data, Candidate Nall has a clean (no criminal record) criminal history background check under the terms of Resolution 10-8-4. The City respectfully apologizes for this incident.

Based upon this news story, it appears the false accusation stemmed from a database search as part of a background check. As noted in numerous articles from Employment Screening Resources (ESR), such database searches can easily result in a “false positive,” meaning a person is incorrectly labeled a criminal when they are not. ESR has a policy of always checking the results of any database “hit” at the country courthouse level.

For more information on databases searches, read “Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly,” which investigates all aspects of criminal database searches.

  • The Good: Criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
  • The Bad: Despite their value, criminal records databases have serious flaws, including incomplete records, name variations, and untimely information. Also keep in mind that database checks by private screening firms are NOT FBI records. 
  • The Ugly: Inaccuracy is only one pitfall of national criminal database searches. They also make employers vulnerable to a number of legal landmines, especially when it comes to confirming if the record is current and accurate and even belongs to the applicant. 

The article can be found at http://www.esrcheck.com/articles/Criminal_Databases.php. For more information on background checks and database searches, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:
http://www.nbcmiami.com/news/local-beat/City-Says-Sorry-For-Erroneous-Report-Calling-Candidate-a-Crook-103786279.html 
http://www.coopercityfl.org/vertical/Sites/%7B6B555694-E6ED-4811-95F9-68AA3BD0A2FF%7D/uploads/%7B4E7AD956-8E5F-48B9-AEC6-21A35A52DE23%7D.PDF
http://www.esrcheck.com/articles/Criminal_Databases.php

Employers Should Be Wary of Cheap or Instant Online Criminal Background Checks

By Lester Rosen, ESR President 

Numerous internet sites have sprung up in recent years promising cheap or instant background checks that deliver criminal information on anyone. These sites utilize a so-called “National Criminal database” and vendors of such databases typically claim to have compiled millions of records from every state so users can know if someone is a criminal at the click of a button. These databases appear to offer employers an instant criminal check at a very low price.

Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, anyone who thinks they are getting a real criminal check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, and people without reportable records can be incorrectly identified as criminals, both results carrying negative financial and legal implications for employers.

Anyone using these databases, especially for employment purposes, needs to understand the limitations and legal exposure associated with using them. If they don’t, employers may find themselves embroiled in litigation. Here are just some of the issues:

  • Multi-jurisdictional database are NOT official FBI database searches. FBI records are only available to certain employers or industries where Congress or a state has granted access. Searches offered by web sites are drawn from government data that is commercially available or has been made public.
  • So-called national criminal searches are a research tool only and are not a substitute for a hands-on search at the county level under any circumstances (or the functional equivalent of a county level search). The best use for these databases is to indicate additional places for a background firm to search in case a record is found in a jurisdiction that was not searched at the county court level.
  • In addition, many states have very limited database information that is available to employers. Examples of states where such databases may have very limited value are California and New York. Texas is another state where database information can be wildly inaccurate.
  • Databases in each state are compiled from a number of sources. There are a number of reasons that database information may not be accurate or complete. Because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is criminal any more than the absence of a name shows he/she is not a criminal. In other words, these databases can contain results that are a “false positive,” or a “false negative.” Any lack of a match is not the same as a person being “cleared.”
  • Another reason a database search can be inaccurate is the technical nature of how searches are performed. Searches are often based upon matching last name, the date of birth and the first three letters of the first name in order to eliminate computer matches that are not applicable. In some states, there is no or limited date of birth information which means a search of that state will have little or no value. Or, a person may have been arrested under a different first name.
  • There are also significant legal complications for employers. Any search from an internet site for employment is subject to the federal Fair Credit Reporting Act (FCRA) an often times state laws, which highly regulates employment background checks. There are some instant “criminal sites” that do not bother to make that clear or mention it only in the “fine print.”

In addition, before relying on a database search for employment, FCRA Section 613 must be followed. That section requires that if a criminal matter is found that can adversely affect employment, then a letter should be sent to the applicant by the agency providing the information, which many web sites certainly do not do for employers. This option is not even allowed under California law. The other option is to reconfirm all “hits” at the county court level to insure that the information is accurate, complete and up to date at the time it is reported.

Also, keep in mind that a criminal record should not be used to automatically disqualify an applicant, without taking into account the Equal Employment Opportunity Commission (EEOC) rules as to what is a job-related criminal offense. Otherwise, an employer may find themselves facing allegations of discrimination. In addition, the use of criminal records for employment is also intensely regulated by many states, and without professional guidance, employers may use information that is impermissible, again exposing an employer

The bottom-line: These do it yourself “criminal “searches are not always as advertised. Unless you are a professional, such a search can easily lead an employer astray or get them into legal hot water. Even for non-employers that want to check out someone, such as someone that wants to screen a potential “date,” it is critical to understand that these sites are NOT the real thing when it comes to criminal checks, since in many instances the search can have holes in them the seize of Texas.

For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com

Source:
http://hr.toolbox.com/blogs/background-checks/beware-of-online-criminal-searchesthe-money-you-save-may-put-your-firm-at-risk-40906

New Massachusetts Law Prohibits Employers from Inquiring About Criminal Convictions on Initial Job Applications

By Thomas Ahearn, ESR News Blog

Starting November 4, 2010, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications after Governor Deval Patrick signed into law new legislation prohibiting employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

The new law overhauls the Commonwealth’s Criminal Offender Record Information (CORI) law and contains several provisions that will affect the way employers use the criminal histories of prospective and current employees and impact Massachusetts employers performing criminal background checks on job applicants and employees.

According to a news alert from Sayfarth & Shaw, while the new law does not prevent employers from obtaining criminal histories of job applicants or employees contained in the CORI database, under the CORI reform law those records will no longer contain:

  • Felony convictions closed for more than ten years, whether convictions occurred more than ten years ago or individuals were released more than ten years ago.
  • Misdemeanor convictions closed for more than five years.

In addition, the news alert indicates the new law also includes the following provisions:

  • Employers that decide not to hire applicants or take adverse actions based on criminal histories in CORI reports must first give applicants copies of the reports.
  • Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.
  • Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.

As for effective dates for the CORI reform law, the initial application provision which restricts questions by employers about criminal history on initial written job applications will take effect on November 4, 2010. Employers who continue to ask questions on initial written applications about felony or misdemeanor convictions after that date may be subject to liability under the new law, according to the news alert. The other provisions described regarding the new law do not take effect until February 6, 2012.

For more information about employment background checks, and the latest legal updates, please visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:

http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256

http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01416.pdf

http://www.seyfarth.com/dir_docs/news_item/8795eabd-0b60-47f6-9164-a58c9faf0d7a_documentupload.pdf

Nebraska Man Accused of Running Background Check Scam

By Thomas Ahearn, ESR News Staff Writer

A recent news story from Nebraska suggests that the next time you want a background check company to run a background check for you, you may want to run a background check on the background check company first to see if they run real background checks.

According to a report by KMTV Action News 3 in Omaha, NE, federal investigators arrested a Bellevue, NE man and accused him of running a background check scam. FBI agents believe the man — who had previously been indicted on wire and mail fraud charges — formed a background check company that allowed him to dupe consumers into believing he could run FBI and Interpol background checks on people, KMTV reported.

Investigators said the man charged $600 for each phony background check and scammed customers out of a total of $170,000, according to KMTV, which also reported authorities said private citizens are not capable of performing FBI or Interpol background checks.

Background check scams and other unauthorized background checks have become more common with the rapidly spreading use of the Internet. In another story posted on ESR News, an ex-school official in Massachusetts was fined for using his school’s computers to run several hundred unauthorized background checks on athletes, celebrities, and politicians for his own private purposes and in a manner that was not related to his job.

The story from Nebraska also shows the danger of non-reputable background check firms promising FBI-quality background checks to consumers, since FBI background checks and FBI records are not generally available to the public but are only available for certain employers or certain industries where Congress or a state have granted access.

In addition, the actual quality of the information contained in FBI background checks has come into question. The New York Times recently printed a letter from the Federal Bureau of Investigation (FBI) that responded to an earlier Times editorial that discussed the accuracy of data the FBI relies on when performing criminal background checks.

A federal bill introduced in the House of Representatives — Fairness and Accuracy in Employment Background Checks Act of 2010 (H.R.5300) — would strengthen the accuracy of employment background checks using data from the FBI criminal database.

To help determine if a background check firm is reputable,  visit the National Association of Professional Background Screeners (NAPBS) website at http://www.napbs.com.  An employer should consider only dealing with members of NAPBS since that shows a  commitment to professionalism.  Even then, an employer needs to conduct due diligence. See for example, http://www.esrcheck.com/ESRadvantage.php

For more information about background check scams, unauthorized background checks, FBI criminal databases, and other related topics, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.kmtv.com/Global/story.asp?S=12700466