Tag Archives: discrimination

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

Hot Off the Press: EEOC To Hear Testimony on Employer Use of Credit Reports as Background Screening Tool at Open Meeting on October 20

By Thomas Ahearn, ESR News Blog

The Equal Employment Opportunity Commission (EEOC) has announced it will hold a meeting Wednesday, October 20, 2010 to hear testimony about employer use of credit reports as a background screening tool and to investigate the practice of using credit histories as employment screening devices.

According to various news releases and news reports, some of the testimony aims to clear up some common misperceptions about the use of employment credit reports by employers, including a common misperception that employment credit reports include a credit score.

The House Financial Services Committee conducted a hearing in September to discuss the Equal Employment for All Act (H.R. 3149), a bill aimed at severely limiting the use of credit checks on employees that would amend the Fair Credit Reporting Act (FCRA) to make it unlawful to discriminate against job applicants based on consumer credit reports. The Equal Employment for All Act would make it unlawful to base adverse-employment decisions against job applicants and current employees on consumer credit reports.

The EEOC last held a meeting on credit checks in 2007. No action was taken. The meeting on Wednesday, October 20, 2010 will be held at 9:30 A.M. Eastern Time in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C.

The Employment Screening Resources (ESR) News Blog has several previous posts dealing with the issue of employers using employment credit reports during background screening. As reported before on the ESR News Blog, several states have already passed laws restricting the use of credit checks in hiring: 

ESR has long taken the position that employers should proceed with caution with using applicant and employee credit histories in the background screening process and not use employment credit reports unless they can clearly articulate a business justification, which normally means that that the job applicants or current employees have or will hold “sensitive” positions in which they may handle money or have access to personal data.

ESR also co-authorized a white paper with LexisNexis, “The Use of Credit Reports
in Employment Background Screening – An Overview for Job Applicants,”
on the protections applicants have when it comes to credit reports and the fact that credit reports do not contain credit scores. To read the white paper, visit: http://www.napbs.com/files/public/Consumer_Education/Credit_Reports_for_Background_Screening.pdf

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

Sources:
http://www.eeoc.gov/eeoc/meetings/next.cfm
http://www.businesswire.com/news/home/20101019005748/en/EEOC-Discuss-Employer-Credit-History-Screening-Tool
http://www.washingtonexaminer.com/local/blogs/capital-land/eeoc-looking-at-practice-of-credit-checks-screening-105215569.html
http://www.govtrack.us/congress/bill.xpd?bill=h111-3149
http://www.napbs.com/files/public/Consumer_Education/Credit_Reports_for_Background_Screening.pdf

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/