To provide guidance to employers on the legal pitfalls of pre-employment background checks, Attorney Lester Rosen, a safe hiring expert and CEO of accredited background check firm Employment Screening Resources (ESR), will participate in a live 90-minute webinar titled ‘Pre-Employment Background Screening: Legal Pitfalls’ on Tuesday, August 23, 2011 from 1:00 PM to 2:30 PM EDT (10:00 AM to 11:30 AM PDT). For more information about the webinar, which qualifies for Continuing Legal Education (CLE) credit, visit: http://www.straffordpub.com/products/pre-employment-background-screening-legal-pitfalls-2011-08-23. Continue reading
By Thomas Ahearn, ESR News Editor
An Indiana provider has been hit with $376,000 in penalties – which Indiana officials call one of the biggest fines of its kind – for employing several individuals at nursing homes who either had been convicted of criminal offenses or stripped of their licenses.
According to a news report, the fines were larger than usual because the provider – an operator of nursing homes – did not self-report the violations concerning seven employees who were ineligible to work where Medicaid payments were involved. The U.S. Office of the Inspector General (OIG) became aware of the problem in 2009.
A deputy in the office of the counsel to the Inspector General quoted in the news report said the provider “knew or should have known” the employees were excluded from taking part in federal healthcare programs. The deputy also stated that:
- The majority of ineligible employees had lost their licenses or had their licenses revoked.
- Violations are self-reported by provider companies in most similar cases.
- Providers should regularly check lists of contractors and workers who are excluded from participation in government reimbursement programs.
This case reveals the growing need for more extensive nursing home employee background checks, or of any caregivers working with vulnerable populations such as children, the elderly, or those people with special needs. Nursing homes are particularly vulnerable to a higher duty of care to patients. Employers at nursing homes can be sued not only for negligent hiring, but also negligent retention if they knew – or should have known – there was a problem, not to mention negligent supervision.
Employment Screening Resources (ESR) – a leading provider of background checks accredited by The National Association of Professional Background Screeners (NAPBS) – offers a search vital for most healthcare industries: the OIG/GSA Name Search.
Together, the OIG (Office of the Inspector General) Excluded List and GSA (General Services Administration) Sanctions Report search the U.S. Department of Health and Human Services and OIG databases for individuals and businesses excluded or sanctioned from participating in Medicare, Medicaid, and other Federally funded programs.
ESR also offers expanded health cover searches that cover disciplinary actions taken by federal agencies as well as those taken by licensing and certification agencies in all 50 states. This is the most comprehensive search method available.
Employment Screening Resources ESR Home Health Care Check provides background screening services specializing in home health care workers in private homes or elder care facitlites. For more information, visit http://www.esrcheck.com/services/homehealthcare.php.
For more information, visit Employment Screening Resources at http://www.ESRcheck.com.
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 session titled ‘Background Checks: Trends, Best Practices, and Legal Developments’ at the 69th Annual HR Southwest Conference in Ft. Worth, Texas on Wednesday, October 13, 2010 at 8:30 AM local time. To register for the HR Southwest conference, visit http://www.hrsouthwest.com/GeneralInformation.aspx. For more information about educational sessions, visit http://www.hrsouthwestsessions.com/.
“As hiring increases, employers need to select safe, qualified, and honest candidates,” explains Rosen, an attorney at law and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ a comprehensive guide for employment screening. “This session covers best practices and current issues in background checks, including EEOC considerations for criminal records and credit reports, and the dangers of using social networking sites.”
The presenter of ‘Background Checks: Trends, Best Practices, and Legal Developments,’ Lester Rosen, is 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.
The 69th Annual HR Southwest Conference lasts from October 10 to October 13, 2010 and is the largest regional human resources conference in the United States.
About Employment Screening Resources (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, visit http://www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or jcallahan@ESRcheck.com.
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.
In August 2010, Massachusetts Governor Deval Patrick signed into law 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.
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 ‘Management Alert’ from law firm 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 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 previously reported on the ESR News Blog, the initial application of the CORI reform law 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, experts warn. The other provisions described regarding the new law do not take effect until February 6, 2012.
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.
According to a post on The Hollywood Reporter, Esq. blog, the family of deceased singer Michael Jackson has filed a lawsuit against event production company AEG Live and others claiming they are responsible for the pop idol’s death because his contract with AEG for the planned “This Is It” tour created a legal duty to keep him healthy.
As part of the lawsuit, the Jackson family accuses AEG of the “negligent hiring” and retention of Dr. Conrad Murray to care for Jackson in advance of the concerts instead of his usual doctor, the blog notes. Murray later allegedly administered the drug Propofol to Jackson without necessary resuscitation equipment or nursing support, and the singer died with the drug in his system.
With regard to the ‘Negligent Hiring’ cause of action, the complaint filed in Los Angeles Superior Court on behalf of the family includes verbiage claiming that:
- In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray’s background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.
- During the course of Murray’s treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care. AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.
Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. The matter is still pending in court.
According to ‘The Safe Hiring Manual – How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace’ by Lester Rosen, founder of San Francisco area background check firm Employment Screening Resources (ESR), every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring. The legal description of the duty of care – “due diligence” means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.
If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.
While most employers obviously will not hire applicants they know are dangerous or unfit for a job, it is the “should have known” part that gets employers into difficulties.
For more information about due diligence and negligent hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.
A class action lawsuit backed by nation’s largest union of mass transit workers – the Amalgamated Transit Union (ATU) – asserts that a major provider of bus services violated federal race discrimination laws in its operations because workers with criminal records were barred from employment no matter how old the conviction.
According to a story on ATU News, a class action lawsuit was filed against First Transit, Inc., one of the nation’s largest bus companies, for illegal discrimination against African-American and Latino employees and job applicants. The lead plaintiff is an African-American woman who was fired in 2009 by First Transit in Oakland, CA, after just two days on the job due to a seven-year-old felony welfare fraud conviction, which had been expunged from her record by the state of California, according to ATU News.
At issue is a company-wide “No Hire Policy” implemented by First Transit that refuses employment to any job applicant who has a past felony conviction or who has been sentenced to any term of incarceration, no matter how brief. The “no-hire” policy is in force regardless of:
- The nature and gravity of the offense,
- The amount of time passed since the conviction, or
- Whether the offense has any relationship to the job in question.
According to the plaintiff’s complaint, the policy has a “disparate impact” on African-American and Latino job seekers, because they are arrested and convicted at far greater rates than their white counterparts, ATU News reports.
In addition, ATU News reports that policy guidelines of the U.S. Equal Employment Opportunity Commission (EEOC) cited in the class action complaint support the claim of discriminatory practices at First Transit. According to the EEOC:
[A]n employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African Americans and Latinos]… such a policy or practice is unlawful under Title VII [of the U.S. Civil Rights Act of 1964] in the absence of a justifying business necessity.”
Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule – like a company-wide “No Hire Policy” – can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense.
For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com.
President of Employment Screening Resources (ESR) Lester Rosen to review hot button issues HR Professionals face during hiring including international background checks, discrimination, privacy, and use of social networking sites for background checks.
By Thomas Ahearn, ESR News Blog
Safe Hiring Expert Lester Rosen, President of Employment Screening Resources (ESR), the San Francisco area firm that literally “wrote the book on background checks,” will present two sessions at the 53rd Annual Professionals In Human Resources Association (PIHRA) Pacific West HR Conference & Exhibition in Pasadena, CA on Wednesday, September 22, 2010. The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” is 11:10 AM to12:10 PM while the second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” is 2:00 PM to 3:00 PM. For more information, visit http://www.pacificwesthrconference.org/conference_sessions.cfm.
“To avoid the financial and legal nightmare of bad hiring decisions, employers have increasingly turned to pre-employment background screening,” explains Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,’ the first comprehensive book on employment screening. “However, screening is subject to intense legal regulation.”
- The first session, “Everything HR and Recruiting Professionals Need to Know about Background Checks,” (Wednesday, 9/22/10, 11:10 AM to12:10 PM) will review the hot button screening issues for 2010, including discrimination lawsuits, privacy, the use of social networking sites, legal compliance, best practices for employers and recruiters, and international background checks.
- The second session, “Pitfalls and Landmines in Using the Internet and Social Network Sites to Screen or Recruit,” (Wednesday, 9/22/10, 2:00 PM to 3:00 PM) will reveal potential legal landmines and practical risks involved with using social networking sites for screening as well as strategies to stay out of court.
“Employers and recruiters have discovered a treasure trove of information on job applicants by searching the internet and social networking sites,” says Rosen. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”
Both sessions have been pre-approved by the HR Certification Institute (HRCI) for one (1) general recertification credit hour toward PHR, SPHR, and GPHR recertification. Speaker Rosen is an attorney at law and a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues. He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as the first co-chairman.
The Pacific West HR Conference is from September 21 to 23, 2010 and held by PIHRA, the largest chapter of the Society for Human Resource Management (SHRM) in the country with more than 5,200 members representing more than 3,000 firms.
About Employment Screening Resources (ESR):
Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) is dedicated to promoting a safe workplace for both employers and employees and literally wrote the book on background checks with “The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” by ESR founder and President Lester Rosen. In 2003, ESR was rated the top U.S. employment screening firm in the first independent study of the industry. More recently, ESR produced an intensive 30-hour online Safe Hiring Certification Training course and has expanded to provide extensive international screening and applicant generated reports. To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan at 415.898.0044 or firstname.lastname@example.org.