Tag Archives: discrimination

Record Number of US Jobseekers with Criminal Histories Shows Need for Compliance in Employment Screening Background Checks

 The number of Americans job seekers with criminal histories is larger than ever before and includes nearly 65 million people – over one in four U.S. adults – due to increased enforcement for nonviolent crimes like drug offenses and the release of more than 700,000 people from prisons each year, according to criminal justice experts quoted in a recent New York Times article ‘Internet Lets a Criminal Past Catch Up Quicker.’ As a result, U.S. employers will need to ensure compliance with federal, state, and even city guidelines concerning the use of criminal records when performing employment screening background checks. Continue reading

Many US States Considering Bills Limiting Use of Credit Reports for Employment Screening Background Checks

While only four U.S. states – Hawaii, Oregon, Washington, and most recently Illinois – currently have laws limiting or prohibiting credit checks by employers on job applicants and employees, lawmakers in many U.S. states are currently proposing legislation restricting the use of credit reports for employment screening background checks.

In all, lawmakers in 18 U.S. states are considering bills that limit the use of credit report data for employment screening. These states include: California, Connecticut, Florida, Georgia, Indiana, Kentucky, Maryland, Michigan, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Texas, and Vermont. Continue reading

EEOC Sanctioned by Federal Court and Ordered to Pay More than $750,000 in Fees

In a decision ending over three years of litigation, a federal court in Michigan recently sanctioned the Equal Employment Opportunity Commission (EEOC) – the agency of the U.S. Government that enforces the federal employment discrimination laws – and ordered the EEOC to pay $751,942.48 for attorneys fees, expert fees, and court costs to a private employer, PeopleMark, Inc., a staffing company headquartered in Kentucky.  Continue reading

NELP Study Recommends Reforming Employment Background Checks since Over 1 in 4 Adult Americans have Criminal Records

According to a new study by the National Employment Law Project (NELP), since nearly 65 million people in the United States – more than one in four adults – are estimated to have criminal records, employers that use criminal background checks for employment to shut out job applicants with criminal records without considering how long ago the offense occurred, the nature of the offense, and whether the offense is job-related, have prevented millions of people from finding work and compromised the economy and public safety. Continue reading

Ban the Box Coalition in Detroit Wants Criminal Convictions Question Removed for City Vendors and Contractors

A story in The Detroit News reports that members of the growing ‘Ban the Box’ Coalition, who persuaded the Detroit City Council to bar the question asking applicants about their criminal histories – and check a box if they have any convictions – from employment applications last year, have asked to extend the ban on inquiring about felony convictions on applications to city vendors and contractors. Continue reading

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.


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.