Tag Archives: discrimination

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

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

By Thomas Ahearn, ESR News Blog

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

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

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

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

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

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

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

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

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

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

SHRM Tells EEOC Credit Checks Are Legitimate Background Screening Tool at Recent Public Meeting

By Thomas Ahearn, ESR News Blog

According to a news story on the Society for Human Resource Management (SHRM) website – “SHRM: Credit Checks Are Legitimate Screening Tool” – a representative for SHRM told the U.S. Equal Employment Opportunity Commission (EEOC) during a public hearing on October 20, 2010 that the federal government should not eliminate an employer’s use of credit histories to help make decisions about job candidates.

The representative, in prepared comments, said that “SHRM believes there is a compelling public interest in enabling our nation’s employers – whether that employer is in the government or the private sector – to assess the skills, abilities, and work habits of potential hires.” In addition, the representative said credit history is one of many factors – including education, experience and certifications – that employers use “to narrow that applicant pool to those who are most qualified.”

The SHRM representative pointed out Human Resources (HR) typically conducts a background check on the job finalist or group of finalists before making a job offer, and that background check might include checking personal references, criminal history, and credit history depending on the employer and the position to be filled.
 
Citing the Fair Credit Reporting Act (FCRA) of 1970 and the Civil Rights Act of 1964, the representative said SHRM believes “employees already have significant federal protection for the misuse of background checks.”
 
Recent SHRM Research Department data on the use of employer background screening practices was also referenced at the meeting. Among the findings:

  • Just 13 percent of employers surveyed conducted credit checks on all job candidates while another 47 percent consider credit history for candidates of select jobs.
  • Employers generally conducted credit checks only for certain positions, including jobs of financial or fiduciary responsibilities (91 percent), senior executive positions (46 percent) and positions with access to confidential employee information (34 percent).
  • Among employers that used credit checks, 57 percent initiated them only after making a contingent job offer and 30 percent initiated them after the job interview.
  • Four out of 10 employers surveyed did not conduct credit checks.

The EEOC heard public comment from SHRM and others to determine the extent of the practice of using credit checks during the background screening of job candidates, the effectiveness of its intended purpose, and its potential impact on different populations.

More information about the EEOC public meeting can be found at: http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

Employment Screening Resources (ESR) literally 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.

Source:
http://www.shrm.org/about/news/Pages/LegitimateScreeningTool.aspx?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+shrm%2Fnews%2Fhr+(SHRM+Online%3A+HR+News)

EEOC Public Meeting Explores Use of Credit Histories of Job Applicants for Employment Background Screening

By Thomas Ahearn, ESR News Blog

According to a press release from the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC held a public Commission meeting on Wednesday, October 20 to hear testimony from representatives of various groups, social scientists, and the Federal Trade Commission (FTC) on the growing use of credit histories of job applicants as selection criteria during employment background screening.

The EEOC Chair commented that the discussion provided important input into EEOC’s work to ensure that “the workplace is made free of all barriers to equal opportunity.” She also said that as a result of high unemployment forcing more people into the job market, an increasing number of job applicants are exposed to employment background screening tools such as credit checks that could unfairly exclude them from job opportunities. 

The Commission heard from a diverse set of experts, including one from the National Consumer Law Center (NCLC) who expressed concerns that the use of credit histories creates a “Catch-22” situation for job applicants during the current period of high unemployment and high foreclosures, both of which have negative impacts on credit. Others explained using credit histories for employment purposes can have a disparate impact on protected groups, including people of color, women, and the disabled. 

Representatives from the business community – including the U.S. Chamber of Commerce (USCC) and the Society for Human Resources Management (SHRM) – told the Commission that the use of credit histories is permissible by law, limited in scope, and predictive in certain situations of reliability. A recent survey from SHRM revealed that 13 percent of organizations conduct credit checks on all job candidates and another 47 percent consider credit history for selected jobs. Also, it is the experience of SHRM member companies that few organizations utilize credit histories for every job opening. 

However, an industrial psychologist said that there is little research exploring the implications of using credit checks in the employment context and – given the potential for discriminatory exclusion – he concluded that it would be wise to use an applicant’s credit history only within the context of a thorough background check.

The statements of all the panelists at the meeting, along with their biographies, can be found on the EEOC website at http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm. A complete transcript of the testimony will be posted later.

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

Sources:
http://www.eeoc.gov/eeoc/newsroom/release/10-20-10b.cfm
http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm