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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.

Bad Credit Found During Background Check Leads to Revoked Job Offer and Lawsuit against University

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

A woman is suing the University of Miami (UM) in federal court on after her job offer at the college’s medical school was revoked due to bad credit found on a background check, a case some hope will help ban employers from using credit histories in hiring decisions.

According to a report by the Miami Herald, the woman’s application to become a senior medical collector in the patient financial services department had already been accepted by the UM when she was notified that a car repossession and defaulted student loan found on her credit report during a background check disqualified her from the job, even after she had been through several interviews and apparently had the right experience for that job.

In addition, the woman filing the suit is African-American and some believe the use credit reports by employers discriminates against minority job applicants since more Latinos and blacks are unemployed than whites and unemployment is often the reason people cannot pay their bills, according to the report in the Miami Herald.  The lawsuit is pending in court.

With unemployment still high and the economy still low, many job seekers with bad credit histories are in a “Catch-22” situation where they cannot fix their credit without finding a job but cannot find a job because they are rejected due to their bad credit. Meanwhile, employers argue that credit checks can help a company protect its assets, its clients, and prevent liability from negligent hiring claims.

While many and job seekers would like credit checks eliminated altogether by employers, a recent survey by the Society for Human Resources Management (SHRM) found that 60 percent of employers performed credit checks on at least some job applicants during the background check process and more than 1 in 10 employers ran credit checks on every job applicant.

As reported earlier on ESR News, credit background checks for employment purposes are a controversial part of the background screening industry, and the Equal Employment Opportunity Commission (EEOC) held a recent public meeting to discuss whether the use of credit checks during background checks violates the civil rights of job applicants.

To read more ESR News reports about the use of credit reports during employment background checks, visit: http://www.esrcheck.com/wordpress/tag/credit-reports/.

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.

Source:
http://www.miamiherald.com/2010/12/06/1960665/woman-with-bad-credit-sues-um.html

Employment Screening Resources (ESR) Provides Six Critical Steps for Job Applicants with Criminal Pasts Re-Entering Job Market

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Editor

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.

For jobseekers with criminal pasts, a job search can be a frustrating case of “Catch-22” because most employment applications will ask in some fashion if they have a criminal record. If these applicants lie, then they are at risk of being terminated if their criminal record being discovered. If these people are honest and admit their past misconduct, there is a risk of not getting the job.

In addition, most job applicants will likely undergo a pre-employment criminal background check, since many employers believe job applicants with criminal pasts may have a propensity to re-offend in the future. According to recent surveys from the Society for Human Resource Management (SHRM), nearly three out of four U.S. businesses – 73 percent – conduct criminal background checks on all job candidates as part of their pre-employment screening programs.

As a result, an increasing number of U.S. cities and states have joined the “ban the box” movement and removed or limited questions asking about criminal records on job applications. Most recently, due to Criminal Offender Record Information (CORI) reform legislation that took effect November 4, 2010, employers in Massachusetts are now prohibited from asking questions on initial written job applications about criminal charges, arrests, and incarceration.

While employers have a legal duty to exercise “due diligence” in the hiring process, and that duty can be violated if employers hire workers that they either knew – or should have known in the exercise of reasonable care – were dangerous or unfit for a job, society has a vested interest in giving people with past criminal records a fair opportunity to rejoin the workforce and obtain and maintain employment to help these ex-offenders become law abiding, tax-paying citizens.

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 – Employment Screening Resources (ESR) founder and President Lester Rosen, an expert on safe hiring and background checks, 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 that outweighs past problems:

  • Step One: People with past criminal records looking for employment must understand their rights. There are instances where job applicants can legally and ethically answer “No” on a question about a past criminal offense.
  • Step Two: Ex-offenders should see an attorney to explore if they are eligible to get their conviction sealed, expunged, or legally minimized.
  • Step Three: Ex-offenders should seek professional assistance. There are also organizations that assist past offenders with job search and training programs, some with relationships with employers willing to give ex-offenders a chance.
  • Step Four: Honesty is the best policy for ex-offenders. In applying for a job, honestly is always the best policy. A criminal matter honestly explained during an interview may have much less negative impact than hiding it and having an employer discover it later.
  • Step Five: Ex-offenders should rebuild their résumé one step at a time, even with “not-so-perfect” jobs since employers know that the best indicator of future job performance is past job performance.
  • Step Six: Ex-offenders should take the long-term view. An ex-offender anxious to get back into the workforce to start making a living may also be anxious to have their old life back. Yet, ex-offenders need to take the long view and have the faith and patience that the criminal matter will eventually be put behind them.

As an employment screening firm, Employment Screening Resources (ESR) recognizes that most adults need a job – but not everyone is entitled to every job – and we help employers make good decisions while considering the Equal Employment Opportunity Commission (EEOC) rules regarding job applicants with criminal histories.

To read the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ from Employment Screening Resources, 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.

For more general information for job applicants, visit the Employment Screening Resources Applicant Resources page at http://www.esrcheck.com/Applicant-Resources.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 recognized by The National Association of Professional Background Screeners (NAPBS®) as Background Screening Credentialing Council (BSCC) Accredited for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations and Business Development, at 415.898.0044 or jcallahan@ESRcheck.com.

Challenges of Drug Testing Employees for Prescription Drugs Revealed in NY Times Article

By Thomas Ahearn, ESR News Editor

The story of a woman who lost her job after working more than two decades at an automotive plant because of a failed drug test in which she tested positive for a legally prescribed drug is revealed in a recent  New York Times article, ‘Drug Testing Poses Quandary for Employers.’

The woman’s employer for 22 years had changed its drug testing policy to test for selected prescription drugs in addition to illegal drugs, according to the Times, and the prescription medication she took for back pain — a narcotic prescribed by her doctor called hydrocodone, a drug her employer considered unsafe — showed up on her drug test.

The Times reports that the woman has sued her former employer for discrimination and invasion of privacy, while the automotive company contends employees on certain medications pose a safety hazard and its employment drug testing policy considered a prescription drug unsafe if its label included a warning against driving or operating machinery. The case is currently in court.

Increasingly, employers are struggling to find ways to address “the growing reliance of Americans on powerful prescription drugs for pain, anxiety, and other maladies” that may indicate that many of these employees report to work “with potent drugs in their systems,” reports the Times.

But issues of ‘security’ and ‘privacy’ seem to be pitted against each other, as employers try to maintain safe work environments through employment drug testing but employees cite privacy concerns and contend that they should not be fired for taking legal medications, especially if for injuries sustained on the job.

Citing data from the results of more than 500,000 drug tests, the Times reports:

  • The rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent in 2009 alone.
  • Workers tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

Because of the wide use of prescription drugs in today’s society, employers now face the challenge of setting proper employment drug testing rules about prescription drug use in the workplace to find the right balance between ‘worker security’ and ‘worker privacy’ in order to avoid violating the Americans with Disabilities Act (ADA). According to lawyers with the Equal Employment Opportunity Commission (EEOC), the ADA prohibits employers from asking employees about prescription drug use unless those employees compromise safety or cannot perform their job for medical reasons, the Times reports.

“Like background screening, effective drug testing should occur at the intersection of security and privacy,” says Attorney Lester Rosen, founder and President of Employment Screening Resources (ESR), a San Francisco area company that provides background checks and drug testing, and author of ‘The Safe Hiring Manual – The Complete Guide To Keeping Criminals, Terrorists, and Imposters Out of Your Workplace.’ “Employers need to balance a safe and secure working environment that protects workers and the general public with the legitimate concerns employees have about privacy issues.”

For more information about effective employment drug testing, visit the from Employment Screening Resources (ESR) Services page at
http://www.esrcheck.com/services/.

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 by the National Association of Professional Background Screeners (NAPBS®) as Background Screening Credentialing Council (BSCC) Accredited for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about ESR, visit http://www.ESRcheck.com.

 Source:
http://www.nytimes.com/2010/10/25/us/25drugs.html?_r=1

Equal Employment Opportunity Commission Issues Final Regulations for Genetic Information Nondiscrimination Act (GINA) Prohibiting Use of Genetic Information in Employment Decisions

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

The U.S. Equal Employment Opportunity Commission (EEOC) has issued final regulations implementing the Title II employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) that prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of such genetic information, according to a press release from EEOC.

Title II of GINA – which took effect on November 21, 2009 – prohibits genetic information discrimination in employment and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act (ADA) of 1990. Congress enacted GINA due to concerns patients would decline to take genetic tests out of fear they could lose their jobs or health insurance if tests revealed adverse information.

Title II of GINA:

  • Prohibits the use of genetic information in employment.
  • Restricts employers from requesting, requiring, or purchasing genetic information.
  • Strictly limits the disclosure of genetic information.

The Act also imposes confidentiality obligations on employers and other covered entities – such as employment agencies, labor unions, and training programs – that possess genetic information. The definition of “Genetic Information” includes information about:

  • An individual’s genetic tests and the genetic tests of an individual’s family members.
  • Information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history) that is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
  • An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual.
  • The genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

The GINA regulations include clarifications and refinements made in response to comments received during the notice and comment period. The final regulations implementing GINA are an effort to ensure that workers, job applicants and employers will have clear guidance concerning the implementation of this new law.

The final regulations also provide:

  • Examples of genetic tests;
  • More fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information;
  • Provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and
  • Describe how GINA applies to genetic information obtained via electronic media, including websites and social network sites.

The Equal Employment Opportunity Commission has also issued question-and-answer documents on the final GINA regulations and ‘Genetic Information Discrimination’ that are available on EEOC’s website at http://www.eeoc.gov/laws/types/genetic.cfm.

The EEOC has also issued a question-and-answer pamphlet for small businesses about Title II of GINA and implemented regulations, ‘Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008,’ which is available at http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm.
 
The EEOC pamphlet for Small Business Owners (SBOs) includes the following questions SBOs may ask:

  • Who must comply with Title II of GINA?
  • Are small businesses covered by Title II of GINA required to comply with the law now?
  • What is “genetic information”?
  • What are examples of tests that would, and would not, be considered genetic tests?
  • Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis, such as certain forms of breast cancer?
  • Are there any situations in which an employer may use genetic information to make employment decisions?
  • Does Title II of GINA prohibit harassment and retaliation?
  • May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?
  • May an employer ask for family medical history as part of a medical examination of a job applicant or employee?
  • Are there any situations in which a small business may obtain genetic information without violating GINA?
  • When is the acquisition of genetic information considered inadvertent?
  • What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?
  • Why do GINA and the final rule include an exception that allows an employer to acquire family medical history as part of the Family and Medical Leave Act (FMLA) certification process, under certain state or local laws that allow employees to take leave to care for a family member, or under certain employer leave policies?
  • When would the exception permitting acquisition of genetic information from sources that are publicly and commercially available apply?
  • May an employer conduct genetic monitoring to see if employees are being affected by harmful substances in the workplace?
  • What does GINA say about whether an employer may acquire genetic information for law enforcement purposes or for human remains identification?
  • What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?
  • Must the warning be provided every time an employer requests health-related information from an employee?
  • What if an employer does not provide a warning like the one the EEOC suggests when it requests health-related information and receives genetic information in response?
  • What are GINA’s rules on confidentiality?
  • What effect does Title II of GINA have on other laws addressing genetic discrimination in employment?
  • What happens when an employee files a charge under GINA?
  • What are the remedies for a violation of GINA Title II?

For more information on the Genetic Information Nondiscrimination Act (GINA) of 2008, visit: http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008.

Employment Screening Resources (ESR) – a background check company that does not use genetic information in background check reports – encourages all employers to read the EEOC pamphlets for a helpful overview of GINA and how it impacts businesses generally, and to also check the ESR News Blog for any updates for this subject and other legal matters. 

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

Sources:
http://www.eeoc.gov/eeoc/newsroom/release/11-9-10.cfm / http://www.eeoc.gov/laws/types/genetic.cfm / http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008 / http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm

Saginaw County MI Ready to Ban the Box Questioning Job Applicants about Criminal Pasts on Job Applications

By Thomas Ahearn, ESR News Blog

Saginaw County, Michigan appears poised to join the growing “Ban the Box” movement by voting to remove questions – and the box to be checked when answering – regarding criminal pasts of job applicants on county government employment applications.

As reported in stories on mlive.com, the Saginaw County Board of Commissioners Labor Relations Subcommittee voted to remove questions concerning an applicant’s criminal background history from Saginaw County government job applications, though the panel also determined that the county would still be able to conduct criminal background checks on job applicants after an interview and before a final job offer is made.

The move to “ban the box” and strike questions about criminal charges from government job applications won’t take effect unless the Board of Commissioners votes to go along with the recommendation. If the Board of Commissioners follows the Labor Relation Subcommittee’s endorsement, the county would also eliminate a question asking if a job applicant faces pending felony charges.

As reported previously on the ESR News Blog, an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. More recently, employers in Massachusetts will no longer be able to ask about convictions on “initial” job applications because of new legislation that took effect November 4, 2010 prohibiting employers from asking questions on initial written job applications about criminal offender record information that includes criminal charges, arrests, and incarceration.

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.mlive.com/news/saginaw/index.ssf/2010/11/saginaw_county_panel_votes_to.html
http://www.mlive.com/news/saginaw/index.ssf/2010/11/ban_the_box_advocate_disappoin.html
http://www.esrcheck.com/wordpress/2010/11/03/esr-news-alert-massachusetts-cori-reform-law-prohibits-employers-from-asking-about-criminal-convictions-on-initial-job-applications-effective-november-4-2010/
http://www.esrcheck.com/wordpress/2010/08/17/more-cities-ban-the-box-asking-about-criminal-records-on-job-applications/

Bill Restricting New Jersey Employers from Requiring Employment Credit Checks on Job Applicants Moves Closer to Law

By Thomas Ahearn, ESR News Blog

A bill that would restrict employers in New Jersey from requiring credit checks as a condition of employment is advancing toward law, according to a news release from the Assembly Democrats web site.

Bill A-3238 – sponsored by Assemblyman Ruben J. Ramos Jr. and Assemblywoman Cleopatra Tucker – prohibits an employer in New Jersey from requiring a credit check on a current or prospective employee as a condition of employment, unless the employer is required to do so by law or reasonably believes an employee has engaged in a specific activity that is financial in nature and constitutes a violation of law.

Under the bill, credit checks would be allowed for:

  • A managerial position which involves setting the financial direction or control of the business;
  • A position which involves access to customers’, employees’, or employers’ personal belongings or financial information, other than information customarily provided in a retail transaction;
  • A position which involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts or involves leases of real property;
  • A position which provides an expense account for travel; or
  • A law enforcement officer for a law enforcement agency in this state.

The bill also prohibits an employer from requiring a prospective employee to waive or limit any protection granted under the bill as a condition of applying for or receiving an offer of employment.

In addition, the bill provides for the imposition of civil penalties in an amount not to exceed $5,000 for the first violation, and $10,000 for each subsequent violation, collectible by the Commissioner of Labor and Workforce Development.

As reported earlier on the ESR News Blog, credit checks for employment purposes have become a controversial subject as job seekers look 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 U.S. Equal Employment Opportunity Commission (EEOC), the EEOC held a public Commission meeting on October 20 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 in any way. More information on the EEOC meeting may be found at http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm.

For more information about employment credit checks, visit ESR News Blog section on ‘Credit Reports’ at http://www.esrcheck.com/wordpress/tag/credit-reports/.

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.assemblydems.com/Article.asp?ArticleID=3252
http://www.njleg.state.nj.us/2010/Bills/A3500/3238_I1.HTM
http://www.eeoc.gov/eeoc/newsroom/release/10-20-10b.cfm
http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm