Tag Archives: discrimination

ACLU Calls Background Checks Asking for Social Network Passwords of Job Applicants Illegal Invasion of Privacy

Should employers be allowed to ask job applicants for the logins and passwords to their social network site profiles such as Facebook as part of employment background checks? The answer to this question may involve the next frontier of online privacy, suggests the American Civil Liberties Union (ACLU), after the Maryland Department of Corrections (DOC) asked a job candidate for his Facebook login information as part of a background check. Continue reading

EEOC Examines Practice of Employers Excluding Unemployed Job Applicants from Job Vacancies

The U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting on Wednesday, February 16, 2011 to examine the practice by employers of considering only those currently employed for job vacancies and excluding currently unemployed persons from job applicant pools, including in job announcements, and also to hear from invited panelists on the potential impact on job seekers, according to an EEOC press release titled ‘Out of Work? Out of Luck.’ Continue reading

Ban the Box Movement Wants Question on Applications Asking Jobseekers about Criminal Pasts Removed

A Special Report on KTVU-TV Channel 2 News in San Francisco – ‘Ex-Felons Face Tough Road In Difficult Job Market’ – features a group pushing to “Ban the Box” that ex-offenders must check on job applications to disclose their criminal pasts to employers.

In the KTVU story, a truck driver – an ex-felon who served nine years in prison – believes the reason he cannot get an interview though he has applied for 80 jobs is because of the “Have you ever been convicted of a felony?” question on job applications and claims that disclosing his felony conviction gives employers an excuse to ignore him. Continue reading

Use of Credit Reports and Criminal Records for Employment Screening comes under Scrutiny

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

An article in the February 2011 issue of the Society for Human Resource Management’s (SHRM) HR Magazine‘Close Up On Screening’ – describes how employers are scrambling to adjust to changes in the myriad of state and federal laws that govern pre-employment background screening due to increased scrutiny by legislators and policy enforcers on the use of credit reports and criminal records in hiring decisions.

For examples, Illinois recently became the fourth state — after Hawaii, Oregon, and Washington — to restrict the use of credit histories in hiring decisions, while Massachusetts became the second state, in addition to Hawaii, to prohibit private employers from asking about criminal records of job applicants on initial written job applications.

However, contrary to public opinion, a 2010 survey from SHRM – ‘Conducting Credit Background Checks’ – showed credit histories were used sparingly and wisely in hiring decisions.

“The perception that employers are ordering massive amounts of credit reports is nothing like the truth,” said Lester Rosen, President of San Francisco-area background check provider Employment Screening Resources (ESR), who was quoted in the HR Magazine article.

According to the SHRM survey on credit background checks, when respondents were asked if their organization or an agency hired by their organization conducted credit background checks for any job candidates by reviewing their credit reports:

  • 47 percent responded they performed credit background checks on selected job candidates.
  • 40 percent responded they did not perform credit background checks on any job candidates.
  • 13 percent responded they performed credit background checks on all job candidates.

Regarding which categories of job candidates that organizations conducted credit background checks on, the SHRM survey revealed that 91 percent of “job candidates for positions with fiduciary and financial responsibility” underwent credit background checks.

As for restrictions on criminal records, the SHRM article indicates at least two dozen cities and counties and five states have narrowed questions on their job applications to cover only felony convictions or have stopped asking about criminal history entirely and have “banned the box,” a reference to removing the boxes on applications that job applicants must check if they have even been convicted of a crime. 

“With ‘ban the box’, applicants can be considered without pre-judging,” said Rosen, the author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ a comprehensive guide to background checks. “From a government point of view, it makes sense to get people back to work and to avoid the extra costs of social services. Private employers prefer to ask upfront.”

Furthermore, while employers conduct criminal background checks to guarantee safety in the workplace and to avoid negligent hiring lawsuits, they may attract attention from the U.S. Equal Employment Opportunity Commission (EEOC) if they are not careful in doing so. The article noted that while procedural consistency is important throughout an organization, criteria consistency is important within job groups.

“Not all janitors are background screened the way you screen accountants, but janitors should be screened consistently with janitors,” Rosen explained in the article. “Employers get in trouble when they engage in automated decision-making. There always should be a human review to make sure you’re making the right decision.”

Rosen added that while many employers know the Fair Credit Reporting Act (FCRA) contains procedures for conducting credit background checks, some are unaware the FCRA also covers criminal background checks and offers specific “adverse action” procedures an employer must follow if a background check results in a denial of employment for a job applicant.

As a result, many employers are turning to an outsourced background screening and safe hiring partner to establish protocols and consistent practices while also helping to eliminate inappropriate use of screening results.

“A good background-screening partner makes sure the employer is in compliance with the act and other laws, abides by adverse action rules, conducts consistent checks within job groups, and follows EEOC guidelines for using criminal reports,” Rosen said.

To learn more about background checks, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com and read more about ‘credit reports’ and ‘criminal records’ on the ESR News Blog

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, 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.shrm.org/Publications/hrmagazine/EditorialContent/2011/0211/Pages/0211roberts.aspx
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundChecking.aspx

Employers Firing Employees over Information Found on Popular Social Media Sites Face Legal Risks

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

A recent article on the Wall Street Journal (WSJ) website ‘Employers Tread a Minefield’ – warns employers about “tripping over legal potholes in social media” if they choose to fire people over alleged social media infractions as more employees and job applicants access popular social networking sites such as Facebook and Twitter.

While job seekers and employees have been warned that what they post on popular social network sites such as Facebook and Twitter during their private time could come back to haunt their public careers, employers are now increasingly facing questions about their own policies regarding social media usage that outlines what is, and what is not, appropriate.

Due to the fact that these social network sites are a virtual treasure trove of personal information about employees and job applicants, the WSJ article cautions employers about the potential for litigation over social media use of employees, citing several legal cases as examples.

  • A National Labor Relations Board (NLRB) judge – in the federal agency’s first ‘social media complaint’ – will soon consider whether a medical transportation company illegally fired a worker in Connecticut after she criticized her boss on Facebook (UPDATE: Connecticut Facebook Firing Settlement Talks in Works).
  • Workers in New Jersey sued a restaurant company when they were dismissed after managers accessed a private Myspace page the employees set up to chat about work.
  • A Silicon Valley company was sued twice for comments an anonymous blogger (who was also an attorney for the company at the time) made about two lawyers and their patent-infringement suit against the company.
  • A former Georgia high school teacher has sued the local school district claiming that she was forced to resign her position over photos on Facebook that showed her drinking alcohol during a vacation in Europe.

While information about job applicants and employees found on social media may seem tempting to employers, viewing such information could lead to issues of discrimination, privacy, and authenticity and accuracy if a person is a victim of “cyber slamming.”

Yet, despite these dangers, employers seem intent on using social media for screening. A 2009 survey of more than 2,600 hiring managers conducted by leading job networking site CareerBuilder.com found nearly half of employers – 45 percent – used social networking sites to research candidates. The survey also revealed that 35 percent of employers rejected job applicants based on what was uncovered on social networking sites. Of these 35 percent:

  • 53 percent cited provocative/inappropriate photographs or information.
  • 44 percent cited content about drinking or using drugs.
  • 35 percent cited bad-mouthing of previous employers, co-workers or clients.
  • 29 percent cited poor communication skills.
  • 26 percent cited discriminatory comments.
  • 24 percent cited misrepresentation of qualifications.
  • 20 percent cited sharing confidential information from a previous employer.

Experts quoted in the WSJ article say the best defense against legal action for employers is to establish a social media policy and train employees about the policy, something that experts estimate that fewer than half of U.S. companies have done. In the meantime, the amount of legal action resulting from employer missteps in social media is likely to rise.

The issue of using social network sites such as Facebook to screen job candidates increasing the legal risk for employers was the Number 6 Background Screening Trend for 2011 for 2011. For a complete list of the Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011, visit http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

In addition, Lester Rosen, safe hiring expert and founder and President of Employment Screening Resources (ESR),  a background check company accredited by The National Association of Professional Background Screeners (NAPBS), recently participated in a podcast on BackInfoSecurity.com, ‘Background Checks: Beware Social Media,’ and talked about how employers use, and sometimes abuse, social media for background checks. For more information, visit http://www.bankinfosecurity.com/podcasts.php?podcastID=951.

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Source:
http://online.wsj.com/article/SB10001424052748703954004576089850685724570.html
http://thehiringsite.careerbuilder.com/2009/08/20/nearly-half-of-employers-use-social-networking-sites-to-screen-job-candidates/

Bill Limiting Credit Checks of Job Applicants for Employment Screening Reintroduced in Congress

A bill that would limit the use of credit checks of job applicants in employment screening has been reintroduced into Congress by U.S. Rep. Steve Cohen (D-TN).

As originally written, the ‘Equal Employment for All Act’ would amend the Fair Credit Reporting Act (FCRA) to prohibit the use of consumer credit checks against prospective employees and existing employees as a means of making adverse employment decisions, with an exception for employers seeking applicants in national security or positions with major financial responsibilities.

Congressman Cohen – who wrote the same bill in the last Congress but it was never voted on – noted in a news report that the recession has led some job applicants into debt and credit checks can keep them unemployed. He also noted the Equal Employment Opportunity Commission (EEOC) has suggested such use of credit checks may affect women and minorities disproportionately.

A 2010 survey from the Society for Human Resource Management (SHRM) on the use of credit reports for employment screening revealed that:

  • 13 percent of employers surveyed conducted credit checks on all job candidates.
  • 40 percent of employers did not conduct any credit checks on job candidates.
  • 47 percent of employers considered credit checks for candidates of selected jobs.
  • 60 percent of employers overall ran credit checks on at least some applicants.

Credit checks for employment purposes have become a very controversial subject. Job applicants looking for work in a tough economy are caught in a classic “Catch-22” situation where they have bad credit because they cannot get a job but cannot get a job because they have bad credit.

Employment Screening Resources (ESR), a leading provider of background checks accredited by the National Association of Professional Background Screeners (NAPBS), believes credit checks are just one of many factors – including education, experience, references, and past criminal history – that employers use to find qualified job applicants, employers should approach with caution when using them for employment screening, and articulate a clear rationale as to why a credit check is related to a particular job. Employers should also be aware of the potential for errors in credit reports.

The question of whether use of credit checks in employment screening is discriminatory is so controversial that the use of credit reports for employment screening is the number one background screening trend for 2011 as chosen by Employment Screening Resources founder and President Lester Rosen. For a list of all trends in ESR’s ‘Top Ten Trends in Employment Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

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

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, 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.govtrack.us/congress/bill.xpd?bill=h111-3149
http://www.commercialappeal.com/news/2011/jan/20/credit-check-bill-is-refiled/

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.

EEOC Reports Workplace Discrimination Charges Hit Record High of Nearly 100,000 in FY 2010

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

Private sector workplace discrimination charge filings with the federal U.S. Equal Employment Opportunity Commission (EEOC) agency nationwide hit an unprecedented level of 99,922 during fiscal year (FY) 2010, according to an EEOC press release.

The EEOC ended FY 2010 – October 1, 2009 to Sept. 30, 2010 – with 250 lawsuits filed, 285 lawsuits resolved, and 104,999 private sector charges resolved. Overall, through enforcement, mediation, and litigation programs to promote inclusive and discrimination-free workplaces, the EEOC secured more than $404 million in monetary benefits from employers, the highest level of relief ever obtained by the agency.

According to the FY 2010 data, all major categories of charge filings in the private sector – which include charges filed against state and local governments – increased. These include charges alleging discrimination under:

  • Title VII of the Civil Rights Act of 1964, as amended;
  • Equal Pay Act;
  • Age Discrimination in Employment Act;
  • Americans with Disabilities Act (ADA); and
  • Genetic Information Nondiscrimination Act (GINA).

In FY 2010, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge with the EEOC for the first time ever since race had been historically the most frequently filed charge since the EEOC became operational in 1965. In addition, allegations based on religion (3,790), disability (25,165), and age (23,264) increased. In its first year of enforcement, the EEOC received 201 charges under GINA. 

The FY 2010 enforcement and litigation statistics are available online at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm. To see EEOC Charge Statistics FY 1997 Through FY 2010, visit http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

Recently, part of the EEOC enforcement has targeted employers that may be using credit reports of job applicants for employment screening in a discriminatory manner in the eyes of the federal law. Credit checks for employment purposes have become a very controversial subject. Job applicants looking for work in a tough economy are caught in a “Catch-22” situation where they have bad credit because they cannot get a job but cannot get a job because they have bad credit. As a result, the EEOC held a public Commission meeting in October 2010 to hear testimony on the growing use of credit histories of job applicants as selection criteria during employment background screening to see if the practice is discriminatory.

However, while credit checks are one method employers may use to hire an honest and trustworthy employee that also provide some legal cover if that employee turns out to be dishonest, Employment Screening Resources (ESR) does not encourage routine credit checks on all candidates since credit checks often contain errors and can feel like an invasion of privacy to applicants. Employers should limit credit checks to relevant positions such as those that involve money. In fact, with many states recently passing laws limiting the use of credit checks for employment purposes, employers need to be careful when, to whom, and how they perform credit checks on prospective job applicants.

However, in response to seeing an increase in claims of discrimination based upon criminal records and credit reports, the EEOC began the E-RACE (Eradicating Racism And Colorism from Employment) Initiative. More recently, the EEOC filed a nationwide hiring discrimination lawsuit against a nationwide provider of postsecondary education charging the company engaged in a pattern of unlawful discrimination by refusing to hire a class of black job applicants nationwide by rejecting them based on their credit history, a practice with an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity. As a result of these practices, the company allegedly violated Title VII of the Civil Rights Act of 1964, according to the EEOC press release.

The controversy over whether employers using credit reports for employment screening is discriminatory is Trend #1 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

To read more articles about the EEOC on ESR News, see posts Tagged ‘EEOC’ at: http://www.esrcheck.com/wordpress/tag/eeoc/.

For more information about background screening, 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.

Sources:
http://www.eeoc.gov/eeoc/newsroom/release/1-11-11.cfm

Experts Reveal Best Practices for Running Credit Checks during Employment Screening

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

A recent article from Inc.com, ‘How to Run a Credit Check,’ reveals best practices from experts for every step of the credit check process during employment screening so that employers may check the financial stability of potential employees.

According to the Inc.com article, employers using credit checks must consider the strong protections for potential employees that are built into federal regulations. They also need to be prepared for what to do with the results of the credit check and whether a bad credit history should automatically disqualify a job applicant from working at their business.

Financial background check experts – including Jared Callahan, Director of Client Relations for Employment Screening Resources (ESR) – agree the following five basic steps should be followed to get the most out of credit checks:

  • Step #1 – Have a Permissible Use
  • Step #2 – Get Permission
  • Step #3 – Find a Service to Use
  • Step #4 – Interpreting the Results
  • Step #5 – Do a Test Run

Step #1 – Have a Permissible Use

The federal Fair Credit Reporting Act (FCRA) dictates what constitutes a permissible use for credit reports:

  • In connection with a credit transaction;
  • Employment purposes;
  • Underwriting of insurance;
  • Professional licensing; and
  • Account review or other legitimate business needs.

For employment purposes, Callahan says only potential employees seeking jobs related to financial responsibilities should be subjected to a credit check: “If you’ve got ditch diggers out in the middle of nowhere, a credit check might not be relevant.” Employers also need to make sure the credit report is for a relevant purpose and that they are not arbitrarily digging into someone’s financial history.

Step #2 – Get Permission

Federal law requires employers always disclose when they seek to run a credit check on job applicants and they need to get their permission in writing too, along with personal information since credit check agencies require a full name and Social Security number. “The candidate’s rights are absolutely bulletproof protected by the Fed and the state you are in,” Callahan says.

Step #3 – Find a Service to Use

After attaining the permission of applicants, employers running credit checks on potential employees may use services such as Employment Screening Resources (ESR) that provide special employment-only credit checks with other background check information. These services usually charge a fee to run a credit check.

Step #4 – Interpreting the Results

Experts advise that standards for weighing the results should be established before employers start running credit checks on job applicants and that it is important to have a plan in place for what items will signal “red flags” or warning signs.

However, Callahan warns employers against jumping to a conclusion no matter what the credit report says since up to 75 percent of all credit reports contain incorrect information, including wrong home addresses and inaccurate bankruptcy details. “You really have to take a credit report with a grain of salt,” says Callahan, who also suggests that employers give subjects of credit reports a chance to respond and produce authentication for any financial points appearing on the credit report.

Step #5 – Do a Test Run

Consumers can run their own credit reports since the FCRA allows consumers to receive one free credit report a year from each of the three main reporting agencies: Equifax, TransUnion, and Experian. Consumers running their own credit check can keep on top of financial issues such as identity theft while finding and correcting inaccurate information. Government regulations make it easy to go online and contest the details of credit reports.

Employment Screening Resources (ESR) – a leading background check provider accredited by The National Association of Professional Background Screeners (NAPBS®) – recommends that employers should approach the use of credit reports for employment purposes with caution and use them only if there is a business justification. The Equal Employment Opportunity Commission (EEOC) is very concerned about the use of credit reports for employment purposes and has filed legal actions against some firms that use credit reports alleging that it results in a disparate or discriminatory impact.

In addition, some states are considering, or have passed, legislation to restrict the use of credit reports for employment purposes.  For example, effective January 3, 2011, the State of Illinois restricts employers from using credit reports for employment purposes. Under Illinois House Bill 4658 ‘The Employee Credit Privacy Act,’ employers in Illinois may not use a person’s credit history to determine employment, recruiting, discharge, or compensation.

The Inc.com article ‘How to Run a Credit Check’ is available at http://www.inc.com/guides/2010/12/how-to-run-a-credit-check.html.

For more information about credit checks, visit the Employment Screening Resources (ESR) website 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.

Sources:

http://www.inc.com/guides/2010/12/how-to-run-a-credit-check.html

http://community.ere.net/blogs/doreenkoronios/2011/01/effective-132011-state-of-illinois-restricts-employers-from-using-credit-reports-for-employment-purposes/

ESR Background Screening Trend 6 for 2011: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

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

Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011

Trend No. 6: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

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.

“Employers and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as MySpace, Facebook, LinkedIn, Twitter, and other online sources,” says Lester Rosen, founder of Employment Screening Resources (ESR) and author of The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,’ the first comprehensive book on employment screening. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

Employers care about the content on social networking sites used by job candidates. A 2009 survey from leading job networking site CareerBuilder.com that found nearly half of employers use social networking sites to screen job candidates, more than double the amount from 2008. The survey of more than 2,600 hiring managers revealed that 45 percent of employers used social networking sites to research candidates and 35 percent of employers rejected applicants based on what was uncovered on social networking sites. Of these 35 percent:

  • 53 percent cited provocative/inappropriate photographs or information.
  • 44 percent cited content about drinking or using drugs.
  • 35 percent cited bad-mouthing of previous employers, co-workers or clients.
  • 29 percent cited poor communication skills.
  • 26 percent cited discriminatory comments.
  • 24 percent cited misrepresentation of qualifications.
  • 20 percent cited sharing confidential information from a previous employer. 

Allegations of discrimination are one critical area where employers can find themselves in hot water when utilizing social network sites for background screening. Employers may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. There may even be photos showing a physical condition protected by the Americans with Disabilities Act (ADA) or showing candidates wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information (TMI). Once employers are aware that an individual is a member of a protected group, it is difficult to claim that they can “un-ring the bell” and forget they saw such information.

Another issue facing employers using the Internet to source is authenticity. In other words, if negative information about a candidate is found on the Internet or a social networking site, how is the employer supposed to verify that the information is accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?

Another problem concerning Internet sourcing and screening yet to be fully explored by the courts is the issue of privacy. Contrary to popular opinion, everything online is not necessarily fair game. Certainly, people choosing not to adjust their privacy settings so that their social network sites are easily available on Internet searches may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that – a place to freely socialize. The argument would be that in their circles it is the community norm, and a generally accepted attitude, that their pages are off limits to unwelcome intruders, even if the door is left wide open. After all, burglars can hardly defend themselves on the basis that the front door to the house they stole from was unlocked so they felt they could just walk in.
 
Yet another issue is legal off-duty conduct.  A number of states protect workers engaged in legal off-duty conduct. If such a search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination 
 
All of these concerns are just the tip of the iceberg when it comes to social network background checks.  Employers need to be very careful when it comes to harvesting information about job candidates from the internet.  Employers need to know how to protect themselves against allegations of discrimination and issues with authenticity and privacy if no further action is taken after the discovery on the Internet that a person is a member of a protected class or when finding negative information.  How and when an employer obtains such information is critical.

For employers wanting to use social network sites to screen a candidate, the safest path when using the Internet is to obtain consent from the candidate first and only search once there has been a conditional job offer to that candidate. This procedure helps ensure that impermissible information is not considered before the employer evaluates a candidate using permissible tools such as interviews, job-related employment tests, references from supervisors, and a background check.

At that point, after using permissible screening tools, the reason for employers to search social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about the employer’s firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.

In addition, employers in the sourcing stage may want to consider having a clear internal policy and documented training that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are valid predictors of job performance will be considered, taking into account the job description, and the knowledge, skills, and abilities required for the position. It also helps to have objective and documented methods and metrics on how to source and screen on the Internet.

Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible background screening information is not given to the decisions maker. The in-house background screening should also have training in the non-discriminatory use of background screening information, knowledge of the job desiccation and use objective methods that are the same for all candidates for each type of position.  That way, only permissible information is transmitted to the person that is making the decision.  Again, this is best done post-offer but pre-hire and with consent. An employer may be looking for online information concerning upon job suitability.  For example, did the potential employee say derogatory things about past employers or co-workers, or demonstrate that they are not the best candidate for the job. 

Although employers may request that background screening firms perform this function, there are a number of drawbacks. First, a background screening firm does not have the same in-depth knowledge the employer has of the details of the position.  In addition, if a social network background check is done by a background screening firm, the search falls under the federal Fair Credit Reporting Act (FCRA) which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy.  Because a background screening firm has no way of knowing if the online information is accurate, it is difficult for background screening firms to perform this service consistent with the FCRA.  In other words, due to the FCRA, background screening firms may not be best suited to perform these types of ‘social network background check’ searches.

On the other hand, failure to utilize these social networking sites when a search could have revealed relevant information could expose an employer to claims of negligent hiring. 

The bottom line is that employers must approach using social network background screening with caution before assuming everything is fair game in the pursuit of job candidates or otherwise face potential legal landmines that could destroy their business.

To read more ESR News articles about using social network sites for screening, visit http://www.esrcheck.com/wordpress/tag/social-networking-sites/.  Learn more about Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) – a leading provider of background checks accredited by The National Association of Professional Background Screeners (NAPBS®) – is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Sixth 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, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.