Tag Archives: discrimination

Employment Screening Resources President Presents Webinar on Background Screening Best Practices with IOMA Institute of Finance and Management

By Thomas Ahearn, ESR News Blog

Author, speaker, and safe hiring expert Lester Rosen, President of Employment Screening Resources (ESR), the company that literally wrote the book on background checks, will present a webinar titled ‘Background Screening Best Practices: How to Use the Web to Conduct Searches & Avoid Legal Landmines’ with the Institute of Management and Administration’s (IOMA) Institute of Financial Management (IOFM) on Friday, October 8, 2010 at 2:00 PM ET. For more information on this interactive webinar that will help participants discover key sources for gathering critical information while minimizing their liability, visit: http://www.iofm.com/products/view/background-screening-webinar.

“More companies are planning to use Internet searches for background screening in the next year. And many more have staff performing casual searches of Facebook, LinkedIn, and similar sources outside of the formal screening process,” explains Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ the first comprehensive guide for employment screening. “The information can be invaluable, including helping to identify potentially dangerous employees and job candidates—but it’s not risk free. Using these sites to conduct investigations can present legal risks, raising both privacy and discrimination issues. Failure to follow best practices in collecting information from social media sites exposes organizations to unnecessary and costly litigation.”

Through case studies and viewing Internet sites, participants in the webinar ‘Background Screening Best Practices: How to Use the Web to Conduct Searches & Avoid Legal Landmines’ will join Rosen for a first-hand guided tour of the ins-and-outs of social networking sites, the treasure trove of information they contain, and the privacy and discrimination issues they raise. By joining Rosen for this tour of social networks as they apply to background screening of job candidates and employees, participants will:

  • Learn why major employers, human resources, and security professionals use search engines and social network sites to screen candidates and gather information.
  • Understand the full scope of risks in using these social network sites.
  • Learn the myths and realities of investigations utilizing these sources: Isn’t everything on the web fair game since privacy is waived once someone places something on the Internet?
  • Learn how discrimination laws and rules concerning off-duty conduct apply.
  • Uncover best practices for conducting Internet investigations.
  • Hear how to evaluate the pros and cons of using Internet sites in background screening.
  • Get answers to specific questions in the Q&A session following the presentation.

The webinar presenter, Lester Rosen, is an attorney at law and a frequent speaker nationwide on pre-employment screening who has testified as an expert witness on issues surrounding safe hiring and due diligence. He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and also served as the first co-chairman.

IOMA’s Institute of Finance Management (IOFM) is the leading source of information, tools, and resources for corporate managers and professionals in budgeting and cost control management.

About Employment Screening Solutions (ESR):
Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) literally wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. The company is a leading provider of information, education, and training on “all things background checks” and is dedicated to promoting a safe workplace for both employers and employees. In 2003, ESR was rated the top U.S. employment screening firm in the first independent study of the industry. To learn more about Employment Screening Resources (ESR), please visit www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or jcallahan@ESRcheck.com.

Source: http://www.iofm.com/products/view/background-screening-webinar

Social Network Background Checks of Job Applicants Present Challenges for Employers and Recruiters

By Lester Rosen, ESR President

It appears that a new industry is popping up, whereby employers can go to third party firms that will scour the internet and locate and assemble a dossier on an applicant’s cyber identity.  These “social network background checks” will search social networking sites like Facebok and Twitter, blogs, and anywhere else on the Internet for information about job applicants, including things they may have put online yeas ago and completely forgotten about.

Companies providing social network background checks present a number of challenging questions that HR professionals and recruiters will need to deal with:

  • First, such a site may well be categorized as a Consumer Reporting Agency (CRA).  Under the FCRA section 603(f) a CRA can be a third party firm that engages is the “assembling or evaluation” of consumers for employment.   That means that these types of sites are essentially background checking firms, with all of the same legal duties and obligations of any other background firm.  Therefore, such sites need to have full FCRA compliance, including client certifications under FCRA section 604 as well as adverse action notices and numerous other obligations, such as re-investigation upon request. Background checking is subject to heavy legal regulation.  
  • Another issue is authenticity. Under FCRA section 607(b), a Consumer Reporting Agency needs to exercise “reasonable procedures to assure maximum possible accuracy.”  The issue of course is how to know what is real or authentic before reporting it to an employer.  If a social site contains something negative, how is the firm that supplies the information to go about verifying that it is accurate, authentic, and belongs to the applicant. If the search should happen to turn up a criminal record, then the obligations are even heavier.  A CRA must either give notice to the applicant at the same time it notifies the employer that a criminal record is being reported or it must confirm the information is complete and up to date, which typically means going to the courthouse.  In California, state law does  not even allow he notice option.  
  • There is also the possibility that some of the information obtained from a social networking may meet the definition of a special kind of background report called an “Investigative Consumer Report (ICR).” If so, there are additional special rules if matters that are likely to adversely impact employment, such as revivifying the information from another source or ensuring the information came from the best possible source.
  • Another big challenge for these types of web sites is discrimination allegations.  Employers or recruiters 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. All of those are things that may be revealed by an online search.  There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information or TMI.

The problem is that once an employer recruiter is 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 he or she ever saw it.  Employers may be exposed to “failure to hire” law suits based upon discrimination or Equal Employment Opportunity Commission (EEOC) claims. 

Another problem yet to be fully explored by the courts is privacy.  Contrary to popular opinion, everything online is not necessarily fair game.  Certainly if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person 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 MySpace or Facebook 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 door was unlocked so they felt they could just walk in. 

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  

These concerns are just the tip of the iceberg.  Employers need to be very careful when it comes to harvesting such information from the internet.  How and when an employer obtains such information is critical. For example, employers may have increased protection if such searches are done after there has been a conditional offer, and consent has been given.   Legality may also depend on whether the employer has well written job description with the essential functions of the job defined, so that information used from such searches can be justified.  Another issue is whether employers engage in any sort of objective analysis using metrics. 

The bottom line: Before using the internet to screen candidates, or using third party services, see your labor attorney.  

To read a related article on social network background checks, ‘The Rush to Source Candidates from Internet and Social Networking Sites,’ visit: http://www.esrcheck.com/wordpress/2009/08/01/the-rush-to-source-candidates-from-internet-and-social-networking-sites-2/.

For more articles on social network background checks, visit: http://www.esrcheck.com/wordpress/tag/social-networking-sites/page/2

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

Source: http://www.esrcheck.com/wordpress/tag/social-networking-sites/page/2/

From the ESR Mailbox: Employment Applications and Questions about Past Criminal Convictions

By Lester Rosen, ESR President

From the ESR mailbox: Our HR department is changing our application form so that an applicant only has to answer questions about any criminal matter going back seven years. They say that this is required under the laws of many states, including California. Are they right?

Answer: The issue of whether employers can use a job application in order to ask about a job applicant’s criminal record is getting complicated. For example, starting November 4, 2010, such questions are not permitted in one state, Massachusetts. For that reason, employers should have their legal department or employment lawyer double check the application form.

Although Employment Screening Resources (ESR) cannot provide legal advice, based upon commonly accepted industry practices, there is not really a good justification for a seven year limitation on applications.

First, the seven year rule is limited to just eleven states (California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Texas, and Washington). Nevada also has a form of a seven year rule, but it appears to apply to reports issued for credit purposes and not employment.

Of those states, there is broad agreement that the seven year rule for Texas and Colorado has been pre-empted by the federal Fair Credit Reporting Act (FCRA) because the rules were enacted too late to qualify for an exemption. A strong argument can also be made that it is pre-empted in California as well, although most firms still follow it.

Even for states with a seven year rule in effect, there is often an income exception, so that over a certain income level, a crime older then seven years can be reported. For example, Kansas, Maryland, Montana, Massachusetts, New Hampshire, and Washington waive the time limit if the applicant is reasonably expected to earn over $20,000 a year. So, as a practical matter, the limitation itself is very limited. California has no income exception, however.

Also, how the seven years is calculated can also get complicated. Seven years by no means actually means seven years. For example, a crime may have been committed more then 7 years ago, but if the person was still in custody within the seven years, it is likely reportable. Or a person committed a crime 9 years ago and violated parole or probation and spent a day in jail within the past seven years. That means the seven years clock starts over and it is reportable. The idea is that person must have been custody free for seven years. Generally speaking, being on parole or probation does not “toll” (or in other words stop) the seven year clock. It normally requires that an applicant be free of physical confinement.

Another critical point is that seven years is a reporting restriction is placed on a screening firm. Even for those states with a seven year rule, there is NO restriction upon an employer asking. Even if California, there is no requirement the employer limit the question to seven years.

The one other consideration, of course, is that going back too far can potentially create an Equal Employment Opportunity Commission (EEOC) issue because an old crime may be less relevant to a job (depending upon the nature and gravity of the of the crime and the nature of the job).

In some states, there are limits on asking about arrests that did not result in a conviction, as well as additional state specific limitations.

The bottom line is that such a limitation in the application does not appear to be mandated by sate or federal law. However, your firm’s attorney is in the best position to give advice on this issue. For more information on what language to use in applications, visit http://www.esrcheck.com/articles/crime_and_employment_application.php .

For more information on employee background checks and pre-employment screening, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://hr.toolbox.com/blogs/background-checks/employment-applications-and-questions-about-past-criminal-convictions-41276

Bus Company Sued for Discrimination against African-Americans and Latinos

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

A class action lawsuit backed by nation’s largest union of mass transit workers – the Amalgamated Transit Union (ATU) – asserts that a major provider of bus services violated federal race discrimination laws in its operations because workers with criminal records were barred from employment no matter how old the conviction.

According to a story on ATU News, a class action lawsuit was filed against First Transit, Inc., one of the nation’s largest bus companies, for illegal discrimination against African-American and Latino employees and job applicants. The lead plaintiff is an African-American woman who was fired in 2009 by First Transit in Oakland, CA, after just two days on the job due to a seven-year-old felony welfare fraud conviction, which had been expunged from her record by the state of California, according to ATU News.

At issue is a company-wide “No Hire Policy” implemented by First Transit that refuses employment to any job applicant who has a past felony conviction or who has been sentenced to any term of incarceration, no matter how brief. The “no-hire” policy is in force regardless of:

  • The nature and gravity of the offense,
  • The amount of time passed since the conviction, or
  • Whether the offense has any relationship to the job in question.

According to the plaintiff’s complaint, the policy has a “disparate impact” on African-American and Latino job seekers, because they are arrested and convicted at far greater rates than their white counterparts, ATU News reports.

In addition, ATU News reports that policy guidelines of the U.S. Equal Employment Opportunity Commission (EEOC) cited in the class action complaint support the claim of discriminatory practices at First Transit. According to the EEOC:

[A]n employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African Americans and Latinos]… such a policy or practice is unlawful under Title VII [of the U.S. Civil Rights Act of 1964] in the absence of a justifying business necessity.”

Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule – like a company-wide “No Hire Policy” – can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense. 

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com.

Source: http://www.atu.org/content/atu_news/7257/

Arizona Nightclub Uses Background Checks to Tighten Security

By Thomas Ahearn, ESR News Blog

Patrons of nightclubs are usually prepared to have their driver’s licenses checked to prove they are old enough to drink, pay a cover charge, and adhere to a dress code, but undergo a background check?

According to an article posted on the Arizona Daily Star website, the Pearl Nightclub in Tucson, AZ is requiring some patrons to submit to a background check before they enter as part of beefed up security after the shooting death of a 21-year-old man in its parking lot in August.

Patrons that don’t meet the club’s dress code – which prohibits baggy clothing, athletic wear, flip-flops, work boots, or plain-colored T-shirts – are asked by security guards to submit to a background check search done online through the Arizona Judicial Branch’s website, the Daily Star reports.  People without recent felony convictions are issued a VIP card allowing them free admission that night and quicker entry on subsequent visits.

If a background check turns up a recent felony conviction they are not allowed in the club. Only men have been asked to submit to background checks so far, which take one minute or less, and around 10 people have been asked to leave the club after a background check turned up a recent felony conviction, according to the article.

However, the executive director of the American Civil Liberties Union of Arizona was quoted in the article warning that the club needs to avoid the perception that it is targeting certain groups and that “there should be clearly defined standards for who gets searched to guard against discrimination.”

In addition, the Daily Star also reported that background checks conducted on the county’s Justice Court’s website are not foolproof for the following reasons:

  • The background check won’t turn up crimes a person has committed in another state or another country.
  • If a person commits a crime soon after being issued a VIP card by the club, the club’s security guards would not know unless they ran another background check.

Background checks are an effective method to promote a safe workplace, especially with the help of a professional background screening firm. To find such a firm, employers are advised to choose a background screening firm that is a member of the National Association of Professional Background Screeners (NAPBS).

For more information on background checks and how to keep any workplace safer and secure, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:
http://azstarnet.com/news/local/crime/article_5cd72708-ce87-57f5-87b0-0b7427e87ef5.html

Author and Safe Hiring Expert Lester Rosen to Present Two Sessions at PIHRA Pacific West HR Conference in Pasadena CA on September 22

President of Employment Screening Resources (ESR) Lester Rosen to review hot button issues HR Professionals face during hiring including international background checks, discrimination, privacy, and use of social networking sites for background checks.

By Thomas Ahearn, ESR News Blog

Safe Hiring Expert Lester Rosen, President of Employment Screening Resources (ESR), the San Francisco area firm that literally “wrote the book on background checks,” will present two sessions at the 53rd Annual Professionals In Human Resources Association (PIHRA) Pacific West HR Conference & Exhibition in Pasadena, CA on Wednesday, September 22, 2010. The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” is 11:10 AM to12:10 PM while the second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” is 2:00 PM to 3:00 PM. For more information, visit http://www.pacificwesthrconference.org/conference_sessions.cfm.

“To avoid the financial and legal nightmare of bad hiring decisions, employers have increasingly turned to pre-employment background screening,” explains Rosen, 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, screening is subject to intense legal regulation.”

  • The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” (Wednesday, 9/22/10, 11:10 AM to12:10 PM) will review the hot button screening issues for 2010, including discrimination lawsuits, privacy, the use of social networking sites, legal compliance, best practices for employers and recruiters, and international background checks.
  • The second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” (Wednesday, 9/22/10, 2:00 PM to 3:00 PM) will reveal potential legal landmines and practical risks involved with using social networking sites for screening as well as strategies to stay out of court.

“Employers and recruiters have discovered a treasure trove of information on job applicants by searching the internet and social networking sites,” says Rosen. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

Both sessions have been pre-approved by the HR Certification Institute (HRCI) for one (1) general recertification credit hour toward PHR, SPHR, and GPHR recertification.  Speaker Rosen is an attorney at law and a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues. He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as the first co-chairman.

The Pacific West HR Conference is from September 21 to 23, 2010 and held by PIHRA, the largest chapter of the Society for Human Resource Management (SHRM) in the country with more than 5,200 members representing more than 3,000 firms.

About Employment Screening Resources (ESR):

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) is dedicated to promoting a safe workplace for both employers and employees and literally wrote the book on background checks with “The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” by ESR founder and President Lester Rosen. In 2003, ESR was rated the top U.S. employment screening firm in the first independent study of the industry. More recently, ESR produced an intensive 30-hour online Safe Hiring Certification Training course and has expanded to provide extensive international screening and applicant generated reports. To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or jcallahan@esrcheck.com.

ESR Webinar with NCHRA Reveals Legal Risks of Using Social Network Sites for Employee Screening

ESR President, Speaker, and Author Lester Rosen Shows How Use of Social Networking Sites such as Facebook, LinkedIn, and Twitter for Employment Screening can Present Legal Risks Including Privacy and Discrimination Issues

By Thomas Ahearn, ESR News Blog Writer

Employment Screening Resources (ESR), a premier provider of background checks and drug testing based in the San Francisco area, will present an online webinar – “Legal Risks of Social Network Sites and Employee Screening” – with the Northern California HR Association (NCHRA) featuring ESR president and screening expert, Lester Rosen. The online webinar will be held on Friday, September 10, 2010 from 11:00am to 12:30pm Pacific Time and is free for NCHRA members and $49 for non-members, with rates covering an unlimited number of staff at office locations.

To register for the online webinar – which is worth 1.5 Continuing Professional Education (CPE) credits – visit http://www.nchra.org/scriptcontent/custom/e-index.cfm?PAGE=WB100111.htm&ion=events.

“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 Rosen, the 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.”

The NCHRA, the second largest HR Association in the country, serves an HR community of more than 20,000 and has been advancing organizations through human resources since 1960. Through case studies and viewing Internet sites, webinar participants will see how social networking sites work and recognize the potential legal landmines and practical risks involved.

At the conclusion of the webinar “Legal Risks of Social Network Sites and Employee Screening” – which is open to all levels of experience – participants will leave being able to:

  • Explain why and how employers, HR and recruiters use the Internet to screen candidates;
  • Identify the risks involved if everything on the Web is not fair game;
  • Apply discrimination laws and rules to off-duty conduct; and
  • Uncover best practices for employers, recruiters, job applicants, and college placement offices.

Speaker Rosen is an attorney at law and a frequent presenter nationwide on pre-employment screening and safe hiring issues. He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as the first co-chairman.

About Employment Screening Solutions (ESR):
Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) is a leading provider of background checks and drug testing and is dedicated to promoting a safe workplace for both employers and employees. In 2003, ESR was rated the top U.S. employment screening firm in the first independent study of the industry. In 2007, ESR founder Lester Rosen literally wrote the book on employment screening with “The Safe Hiring Manual, The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace.” Rosen also wrote “The Safe Hiring Audit” and is a frequent speaker and presenter on employment screening issues. More recently, ESR produced a 30-hour online course for Safe Hiring Certification Training and has expanded to provide international screening and applicant generated reports (AGR). To learn more about Employment Screening Resources (ESR), please visit http://www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or jcallahan@ESRcheck.com.

More Cities Ban The Box Asking about Criminal Records on Job Applications

By Thomas Ahearn, ESR News Blog Writer 

According to a recent report from the National League of Cities (NLC) and National Employment Law Project (NELP), an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records.

The July 2010 report – “Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records” – features 23 cities and counties that have chosen to “ban the box” on their job applications that asks about an applicant’s criminal record, and defer the criminal background check to the final stages of the hiring process.

The report states that since San Francisco chose to “ban the box” from job applications in 2004, 22 other cities and counties have enacted similar ordinances or policies. The report notes that five cities – Bridgeport, CT; Hartford, CT; Kalamazoo, MI; Memphis, TN; and Worcester, MA – have joined the “ban the box” movement in the past year. As of the July 2010 report, the “ban the box” policy has now been adopted by 23 cities and counties across the country. These cities and counties include (in alphabetical order):

  • Alameda County, CA
  • Austin, TX
  • Baltimore, MD
  • Berkeley, CA
  • Boston, MA
  • Bridgeport, CT
  • Cambridge, MA
  • Chicago, IL
  • Hartford, CT
  • Jacksonville, FL
  • Kalamazoo, MI
  • Memphis, TN
  • Minneapolis, MN
  • Multnomah County, OR
  • New Haven, CT
  • Norwich, CT
  • Oakland, CA
  • Providence, RI
  • San Francisco, CA
  • Seattle, WA
  • St. Paul, MN
  • Travis County, TX
  • Worcester, MA

In addition, the report also notes the U.S. Equal Employment Opportunity Commission (EEOC) has concluded that “an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.” Any examination of applicant criminal records by employers must be job-related and consider the following:

  • Is the applicant’s offense substantially related to the job in question?
  • Has the employer has considered the nature and gravity of the applicant’s offense?
  • Is the time that has passed since the conviction or the completion of the applicant’s sentence sufficient?

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

For more information on the use of criminal records during employment background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:

http://nelp.3cdn.net/70437de6195bc023c8_89m6i6f3q.pdf

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

CNN and WSJ News Stories Show Background Checks Occur at Intersection of Security and Privacy

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

Recently, two news stories about background checks from very different angles appeared in two major media outlets – CNN and the Wall Street Journal (WSJ) – on the same day.

The CNN story – “Investigation: Could background check have prevented alleged rape?” – investigated why British Petroleum (BP) and a company used to hire cleanup workers for the recent oil spill in the Gulf of Mexico did not perform basic background checks.

According to the CNN story, this lack of background checks for oil cleanup workers led to a sex offender landing a job and then allegedly raping a co-worker. A CNN investigation into the incident revealed that basic background checks were not performed on those hired to remove oil from the beaches in Mississippi.

A County Sheriff in Mississippi told CNN he learned from the head of BP security that no background checks were conducted on the cleanup workers and that he warned the BP official that BP risked the criminal element looking for jobs and they would not know who they were dealing with if they did not do background checks. The Sherriff also said that, if asked, his department would have performed the background checks for free.

The 41-year-old suspect – who faces charges of sexual battery and failure to register as a sex offender – has a criminal history dating back to 1991. He was put on the national sex offender registry for a 1996 conviction for contributing to the delinquency of a minor and was also on probation after being convicted in 2003 for cruelty to children, CNN reports.

While the CNN story shows the need for background checks for security reasons, a WSJ law blog – “Background Checks in Hiring: Discrimination or Due Diligence?” – asks if employers can disqualify job applicants simply for having a criminal past and finds the answer may not be so clear cut, at least according to a story by the Associated Press (AP).

The AP reports the Equal Employment Opportunity Commission (EEOC) is arguing that the practice of employers disqualifying applicants with criminal records or bad credit history may be discrimination since those applicants are “disproportionately black or Latino.” The WSJ law blog also quotes the AP story to show that employers using a blanket refusal to hire applicants with criminal records could risk going against federal employment law:

If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.

The AP also reported that the EEOC filed a class-action discrimination lawsuit against a Dallas-based events planning firm in 2009, alleging that the firm “used credit history and criminal records to discriminate against blacks, Hispanics, and males.”

The two news stories read back to back – one in which the failure to do a background check possibly led to a preventable crime, the other questioning if background checks using credit histories and criminal records are discriminatory – could leave employers wondering how much background checking is too much and how much is too little.

These two stories – appearing on the same day from major news organizations but with vastly different angles – underscore the point that background checks occur at the intersection of security and privacy. On the one hand, background checks can promote safety, security, and honesty while lessening the chance for workplace violence or the hiring of unqualified workers with fake credentials. On the other hand, employers using background checks should be concerned with issues of fairness and privacy while combating discrimination.

The solution for employers is reaching the right balance in their background check program.

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

Sources:

http://www.cnn.com/2010/CRIME/08/12/gulf.cleanup.workercharged/
http://blogs.wsj.com/law/2010/08/12/background-checks-in-hiring-discrimination-or-due-diligence/
http://hosted.ap.org/dynamic/stories/U/US_JOB_SCREENING_ILLEGAL_TACTICS?SITE=ORMED&SECTION=HOME&TEMPLATE=DEFAULT
http://www.esrcheck.com/wordpress/2010/03/15/background-check-bashing-either-too-much-or-too-little-depending-upon-the-most-recent-headline/

Credit Checks More Common During Employment Background Checks But Are They Always Necessary?

MSNBC Article Quotes Employment Screening Resources President Lester Rosen

By Thomas Ahearn, ESR News Blog Writer

According to a recent article on MSNBC — Job Candidates Undergoing Credit Scrutiny — applicants applying for jobs these days can expect prospective employers to verify resume information, contact references, possibly do a criminal background check, and even be asked by companies to allow credit checks to scrutinize their credit histories.

The article cites a recent survey by the Society for Human Resource Management (SHRM) in which 60 percent of the responding companies claimed they perform credit checks of some or all job candidates. Breaking down the survey results further, only 13 percent of organizations performed credit checks on all job candidates while 47 percent performed them on selected job candidates, usually for positions with fiduciary and financial responsibility such as handling cash, banking, and accounting.

MSNBC also reported that credit checks are required about half the time for senior executive positions and that the SHRM survey also showed that potential candidates with outstanding judgments, accounts in collection, or a bankruptcy in their file may be passed over for a job.

Lester Rosen, President of Employment Screening Resources (ESR), was quoted in the MSNBC article as saying employers are “looking at the debt level compared to the potential income from the job”  and added that “if someone is under water financially as shown by the credit report, the thought is perhaps there could be a motive to embezzle or steal.”

However, while Rosen says credit checks are one method employers may use to hire honest and trustworthy employees that also provide some legal cover if that employee turns out to be dishonest, 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.

Rosen’s advice in the article for employers is to 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.

For jobseekers, ESR also provides information — at no charge — to job applicants on background checks and credit check reports can help job applicants navigate the background check process and maximize their chance at employment. The information is available on ESR’s ‘Applicant Resources’ page at: http://www.esrcheck.com/Applicant-Resources.php.

Whether the use of credit checks for employment purposes is discriminatory to certain job applicants — which ESR named Trend Number One in its Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010 — is a question that will be asked as long as employers run credit checks on applicants with money troubles.

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

Sources:

http://www.msnbc.msn.com/id/38561183/ns/business-consumer_news/

http://www.esrcheck.com/wordpress/2010/03/23/shrm-surveys-reveal-3-out-of-4-businesses-conduct-reference-background-checks-and-criminal-background-checks/

http://www.esrcheck.com/wordpress/2010/06/02/esr-provides-information-to-job-applicants-on-background-checks-and-credit-reports/

http://www.esrcheck.com/wordpress/2010/01/04/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory/