Tag Archives: Employment Applications

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

New Massachusetts Law Prohibits Employers from Inquiring About Criminal Convictions on Initial Job Applications

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 after Governor Deval Patrick signed into law new legislation prohibiting employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

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.

According to a news alert from Sayfarth & Shaw, 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 news alert indicates 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.

As for effective dates for the CORI reform law, the initial application provision which restricts questions by employers about criminal history on initial written job applications will take effect on November 4, 2010. Employers who 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, according to the news alert. The other provisions described regarding the new law do not take effect until February 6, 2012.

For more information about employment background checks, and the latest legal updates, please visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:

http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter256

http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01416.pdf

http://www.seyfarth.com/dir_docs/news_item/8795eabd-0b60-47f6-9164-a58c9faf0d7a_documentupload.pdf

What does an employer do if the applicant lies or fakes their education, but it was not a job requirement

By Les Rosen, Employment Screening Resources

From the Employment Screening Resources mailbox:  We had an applicant for a job that did not require a degree.  However, the applicant listed a degree but it turns out he in fact never graduated and never earned the degree.   Can we consider that even though the job did not require a diploma?

Answer:   Generally speaking, if an applicant in dishonest in the hiring process, there is evidence to suggest that person may well be dishonest once in the job.  The dishonesty can be either making a  material omission or a material misstatement of  fact.  Dishonesty is typically a valid reason not to hire. The applicant put down a fake qualification on the application for the employer to consider, and the employer may well take that as act of dishonestly.  The applicant can hardly complain that they are the subject of discrimination,  since dishonest people are not a protected class.

In addition, even though a degree was not required, the  applicant obviously listed the degree to gain an advantage in the hiring process.

However, in this situation, the applicant was dishonest about something that was not a requirement of the job.  Although an employer may well still be on solid ground in not hiring someone  that was dishonest, going forward, a employer may consider two changes to their application to ensure there is no gray area when it comes to being honest in the employment application.

First, an employer should consider including the following language on the employment application where questions about education is asked:

Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision.

This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job.

Secondly, an employer may consider adding the following type of language to their application if not already there:

The information provided by the applicant is true and correct, and that any misstatements or omission of material facts in the application or the hiring process may result in discontinuing of the hiring process or termination of employment, no matter when discovered.

This language in general protects an employer if an applicant is dishonest, even if the information comes to light after the person is hired.

Often times, the key to a successful hire is a well written employment application.  For more information on this and other topics, see: The Safe Hiring Manaul.

Increased need for employer due diligence

By Les Rosen, Employment Screening Resources

2010 Trends in Screening Trend Nine: Increased need for employer due diligence

Another impact of the recession is the likelihood of applicant fraud.  Fraudulent educational claims, or worthless diplomas from degree mills, are already familiar problem for employers, recruiters and HR professionals.  However, resume fraud took on an added urgency in 2009 with the advent of services that would actually create fake employment references from fake companies.  The service apparently even included a phone number that an employer could call in order to reach a service that in fact would verify the fake employment.  Although statistic are not yet available, anecdotally it appears that some job applicants have been willing to resort to these extreme and dishonest measures to gain an advantage in the job market. 

In the long run, worthless diplomas bought over the internet or scams to create manufactured past employment will probably be unsuccessful for the most part, provided that employers exercise some due diligence.  For fake education, a competent background firm will typically verify first if a school is legitimate.  If the school does not appear on accepted lists of accredited institution, then a screening firm can review lists of known diploma mills and scams.  Screening firms will also verify if the accreditation agency is for real, since fake schools have resorted to creating fake accreditation agencies.

In addition, pulling of a fake job reference is getting much more difficult.  A good background firm will not simply call the name and number provided by the applicant.  Professional screeners will typically independently establish if the past employer even existed, and locate a phone number independently of whatever number an applicant puts on their resume.  Employment Screening Resources, for example, goes through an extensive procedure to verify that each past employer is legitimate and does not accept the applicant provided phone number.

The bottom-line for employers in 2010 is taking extra caution to ensure you are hiring bona fide employees.

(Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry  for 2010. This is the Ninth of the ten trends ESR will be tracking in 2010.)

fake references and employment screening background checks

From the mailbox:  What are the risks for an applicant in providing a fake reference.  I even hear there are web sites that will give you a fake reference that look real and they even create a web site for the fake company.  In a tough job market, why not? 

Response from  ESR:  The old saying that honesty is the best policy is more then just good advice for a job seeker, it can mean the difference between getting a great job or having your career  get permanently smirched. 

First, the chance of even pulling of a fake reference is getting much more difficult.  Statistics show that most employers routinely contact past employers either themselves or through a background firm.  A good background firm will typically independently establish if the past employer even existed, and locate a phone number independently of whatever number an applicant puts on their resume.  A screening firm may not simply call the name and number provided by the applicant. Employment Screening Resources, for example, goes through an extensive procedure to verify that each past employer is legitimate and does not accept the applicant provided phone number.

Even if the fake reference somehow survives the vetting process, it is hard to keep and live a lie, especially when you never know when the truth may come out.  For example, a supervisor or co-worker may meet someone in your industry that somehow spills the beans. Furthermore, if a person gets a position they cannot actually perform due to a fake reference, it is just a matter of time before they get a negative performance appraisal. 

In addition, co-workers that suspect a fraud have also been known to do their own digging. Furthermore, most employers have employment applications that clearly state that if a person has lied during the application process, it is grounds for termination no matter when discovered.  There is now statistical evidence suggesting that if a person is dishonest in the way they get the job, they the will likely be dishonest once in the job. Once a fabrication is discovered, the resulting termination and the inability to use the most recent employment on your resume can leave a big unexplained employment gap and impact future job searches.

Certainly, applicants have the right to put their best foot forwards, and to cast themselves in the best possible light. But when the resumes goes beyond mere puffing into lies, fiction and fabrication, the long lasting damage to your career,  the emotional energy required to live a lie and the damage to your personal integrity  is just not worth it.

Calling unlisted former employers for employment reference

From the ESR mailbox: I have heard that it is against the law to check any reference other than those provided by the applicant. For example, if an applicant had a job that was not listed on the resume or application, can a background firm or employer still contact that person?

Answer: We are not aware of any legal prohibition against contacting “unlisted” individuals to perform reference checks as part of the employment process. The consent that is given to employers or screening firms to verify past employment or qualifications is not limited to just those individuals an applicant chooses to list or reveal

However, the unlisted” person should only be contacted if the person has knowledge relevant to employment and should only be asked job related questions. Questions for example, about legal off-duty conduct would not be proper. Furthermore, any questions should certainly be non-discriminatory and not an invasion of personal privacy. Typically, a background firm is asked to contact listed employers. There are circumstances however where the person in charge of hiring decides to go a deeper because they are hiring for an important position. The hiring manager hiring may contact the listed references, and then ask who else has they can call that has knowledge about the applicant. This is known as a developed reference. The purpose is to develop the names of other individuals who know the applicant and to get a candid assessment from someone who perhaps has not been “prepared” to give a reference. The topic of unlisted employment may also come up if there are unexplained gaps in employment, and the employer wants to dig deeper. Unlisted jobs may also appear on automated employment verification databases.

One important caveat-”a background firm will typically not contact a current employer without specific permission in order to avoid causing any problems on the current job if the new job doe not work out.

Employers with questions about background checks are free to send them to Jared Callahan at jcallahan@ESRcheck.com . For more information generally, see www.ESRcheck.com

ESR is closed for the holidays on November 26 and 27. Happy Thanksgiving.

Background Checks and Employment Applications

Cup of Coffee with that Criminal Conviction? Starbucks Case Underscores Importance of Well-Crafted Employment Application

A recent California appellate court case, Starbucks Corporation v. Lord, addressed the issue of how applicants are asked about criminal records on an application form.  A class action was filed against Starbucks Corporation on behalf of 135,000 unsuccessful job applicants on the basis that the Starbuck “application contains an ‘illegal question’ about prior marijuana convictions that are more than two years old.”  The lawsuit was claiming $200 per applicant, which meant Starbucks was facing a potential exposure of $26 million dollars.

On the application form Starbucks asked, “Have you ever been convicted of a crime in the last seven (7) years?”  It then states, “If Yes, list convictions that are a matter of public record (arrests are not convictions). A conviction will not necessarily disqualify you for employment.”

On the reverse side of the application, just before the signature line, Starbucks clarified the criminal question with a disclaimer that reflects protections afforded job applicants under California Labor Code sections 432.7 and 432.8:

“CALIFORNIA APPLCIANTS ONLY: Applicants may omit any conviction for the possession of marijuana (except for convictions for the possession of marijuana on school grounds or possession of concentrated cannabis) that are more than two (2) years old, and any information concerning a referral to, and participation in, any pre-trial or post trial diversion program.” 

The disclaimer however, was the very last sentence in a 346 word paragraph that went into other areas, including employment being at will, release of information, misrepresentations in the application and even disclaimers about Maryland and Massachusetts.  

The plaintiffs were concerned that since the disclaimer was physically separated from the question about past crimes and was essentially buried in the fine print, those applicants either would “overlook the disclaimer, or would not want to go back and cross out their previous responses, or ask for a clear copy.”

The Court agreed that the there was an issue whether the “one-size-fits-all style” of applications used was ambiguous or not.

However, the court also found that two of the plaintiffs in the case, in fact, were not harmed by any ambiguity since they both testified that they understood the question and had no drug history anyway.  Because there was no one suing that had actually been harmed, the Court ended the case in Starbucks favor. 

The Court discussed how allowing these kinds of suits by plaintiffs that were not actually harmed would potentially “create a whole new category of employment-professional job seekers, whose quest is to voluntarily find (and fill out) job applications which they know to be defective solely for the purpose of pursing litigation.  This is not the law in California.”

As a result of this case, a California employer should review their application form with their attorney or Human Resources for legal compliance. 

For information on the use of application forms as a powerful tool in hiring the best and safest employees, see:  http://www.esrcheck.com/articles/ and review the section on Employmetn Applications.

Cost Effective Employment Screening and Safe Hiring Techniques for Large Employers

American industries that hire large numbers of hourly, temporary or seasonal employees are caught in a Catch-22. 

On one hand, they know that if they don’t take measures to conduct pre-employment screening and exercise due diligence in hiring, it is a statistical certainly they are sitting ducks for expensive litigation, workplace violence, false claims, theft, embezzlement and economic loss.

Just one bad hire can cost a firm literally millions. Studies show that screening reveals criminal records for up to 10% of job applicants, and at least one-third of all resumes contain materials falsehoods. For food establishments, manufactures, hotels and other business that have a national brand, one negative employee caused event can result in damaging national publicity and significant harm to the brand. 

The catch, however, is that large hourly employers face enormous financial and logistical challenges in implementing safe hiring programs. Screening large numbers can be expensive and time consuming. Some industries hire at multiple locations, and can experience large turnover.

The problem is compounded when firms hire seasonal, temporary or contract workers as well.  Such industries can include hospitality, manufacturing, service, retail, food and restaurants, and tourism. The challenge is how industries with a large numbers of hourly, seasonal, temporary or contract workers or significant turnover, can protect themselves in a cost-effective and efficient manner.

The answer is probably less complicated then it first appears-due diligence and safe hiring does not require a large budget when employers implement a safe hiring system, as opposed to buying background checks. 

Many firms make the mistake of believing that in order to show due diligence, they need to spend a great deal of money to perform background checks and criminal record research. These firms view pre-employment screening as a process that starts after a hiring manager has selected an applicant, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. 

An effective background-screening program, however, does not need to cost a great deal of money because it is much more then just checking background and criminal records after a candidate has been selected. In fact, in an effective safe hiring system, the primary tools are the application, interview and reference checking process, also known as the AIR process. These processes are performed in-house as part of the routine hiring program, and do not cost employers a dime, as long as it is followed. A brief review of the AIR process is contained in the attached Safe Hiring Checklist. 

AIR PROCESS

1. Use an application form, not just resumes.

Use of an employment application form is considered a best practice. Resumes are not always complete or clear. Applications ensure both uniformity and that all needed information is obtained, prevents employers from having impermissible information, and provides employers with a place for applicants to sign certain necessary statements. 

2. Make sure the application form contains all necessary language.

a. Use the broadest possible language for felony and misdemeanor convictions and pending cases. One of the biggest mistakes employers make is to only ask about felonies on an application form since misdemeanors can be very serious. Employers should inquire about misdemeanors to the extent allowed in their state.

b. Statement that criminal records do not automatically disqualify an applicant. This is important for EEOC compliance. It is critical for employers to understand that the background screening is conducted to determine whether a person is fit for a particular job. Society has a vested interest in giving ex-offenders a chance. However, an employer is under a due diligence obligation to make efforts to determine if a person is reasonable fit for a particular position. For example, a person just out of custody for a violent crime would not be a good candidate for a job that require them to go into people’s home, but may perform very well on a supervised work crew. If a criminal record is found, an employer must determine if there is a business reason not to hire the person, based upon the nature and gravity of the offense, the nature of the job and when the crime occurred. There are also limitations to the use of arrests not resulting in a conviction, and a number of states also have rules about criminal records.

c. Statements that lack of truthfulness or material omissions are grounds to terminate the hiring process or employment no matter when they are discovered. This is particularly important if a criminal record is found. Although a criminal record may not be used automatically to disqualify an applicant, the fact an applicant has lied about a criminal matter can be the basis for an adverse decision. 

3. Require a release for a background check in the application process. Have each job applicant sign a consent form for a background check, including a check for criminal records, past employment and education. Announcing that your firm checks backgrounds may discourage applicants with something to hide, and encourage applicants to be truthful and honest about mistakes they have made in the past. If a firm outsources to a third party vendor, then under the federal Fair Credit Reporting Act (FCRA), there must be a disclosure on a separate standalone document. 

4. Review the application carefully. In most instances, when there is an employee problem or lawsuit, a careful review of the application would have alerted the employer in advance that they were hiring a lawsuit waiting to happen, Look for the following red flags:

Applicant does not sign application.

Applicant does not sign consent or background screening.

Applicant leaves criminal questions blank (the honest criminal syndrome-dopes not want to lie about a criminal past).

Applicant self-reports a criminal violation (Applicants can self report matters incorrectly.)

Applicant fails to explain why he or she left past jobs,

Applicant fails to explain gaps in employment history.

Applicant gives an explanation for an employment gap or the reason leaving previous job that does not make sense.

Excessive cross-outs and changes (as though making it up as they go along) 

Applicant fails to give complete information (i.e. insufficient information to identify a past employer, leaves out salary, etc).

Applicant failed to indicate or cannot recall the name of a former supervisor. 

5. In reviewing applications, look for unexplained employment gaps.

It is critical to verify past employment to determine where a person has been for the last 5-10 years, even if you only get dates and job titles. Look for unexplained gaps in employment. Generally, if you can verify that a person was gainfully employed for the last five to ten years, or their whereabouts can be verified it is less likely the person spent time in custody for a serious offense, although this does not eliminate the possibility of lesser offenses.

6. In reviewing applications, examine reasons for leaving each job.

7. Always ask these five questions (during housekeeping stage of interview). Since they have signed consent and believe you are doing checks, applicants have a powerful incentive to be truthful. These questions are the equivalent of a New Age Lie detector test.  Good applicants will shrug it off and applicants with something to hide may reveal vital information. 

a. We do background checks on everyone we make an offer to. Do you any concerns about that you would like to discuss? (Good applicants will shrug off)

b. We also check for criminal convictions for all finalists. Any concerns about that? (Make sure the wording of the question reflects what an employer may legally ask in that state)

c. We contact all past employers. What do think they will say?

d. Will past employer tell us that e.g. your were tardy, did not perform well etc.

e. ALSO, use interview to ask questions about any unexplained employment gap

8. Check references and look for Unexplained Employment Gaps:

Verifying past employment is one of the single most important tools for an employer. It can be as important as doing criminal checks. Past job performance can also be an important predictor of future success. Some employers make a costly mistake by not checking past employment because they believe past employers may not give detailed information. However, even verification of dates of employment and job titles are critical because an employer must be concerned about unexplained gaps in the employment history. 

In addition, documenting the fact that an effort was made will demonstrate due diligence. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag. 

It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense

After the AIR process, a firm is well advised to perform a criminal check. The good news is that with an effective AIR process, the possibility of locating a serious criminal record is greatly reduced. A firm can dramatically lower their cost by concentrating on the most recent counties where an applicant resides or spent a long period of time. Some experts contend that statistically, a person is more likely to commit a criminal offense in their county of residence. As a result, a check of the county of current residence gives an employer the most return for the expenditure.

An employer may wish to do a more in-depth search depending upon the type of position. An employer may want to review those positions with a greater risk for increased scrutiny, such as:

a. Supervisors

b. Workers handling cash or Personal Identifyable information (PII).

c. Remote or unsupervised workers

d. Workers that go into people’s homes

e. Workers with Access to assets

f. Vendors

g. Temporary workers

h. Contractors

Employers who hire vendors, temporary employees or contractors can insist that the provider of these services do screening. Many firms may have janitorial crews in the faculties at night, or vendors supplying vital parts or services. Employers are within their rights to insist that third party provider certify that they have performed checks as well. 

Implementing a Program throughout the company

The biggest challenge for an organization is to promote safe hiring and due diligence across an organization. The goal is to ensure that hiring managers across different divisions and sometimes across different physical locations follow procedures and pay attention to safe hiring.

The answer is to set up a S.A.F.E. Hiring System. It stands for:

S-Set-up a program, policies and procedures to be used throughout the organization, including the AIR process

A-Acclimate/train all persons with safe hiring responsibilities, especially hiring managers.

F– Facilitate/Implement the program.

E-Evaluate and audit the program by making sure that everyone responsible understands that their compensation and advancement is judged in part by the attention they pay to the hiring process. Organizations typically accomplish those things that are measured, audited and rewarded. The attached chart will help supervisors implement the program and for management to audit hiring practices.

By following the AIR process as part of an overall S.A.F.E. Hiring System, employers can demonstrate due diligence in the hiring process and protect themselves from bad hires in a cost-effective manner.

This article was prepared by background checking expert Lester Rosen.