Tag Archives: Privacy

International Background Screening More Necessary Due to Mobility of Workers in Global Economy

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

In 2011, due to the mobility of workers across international borders in a global economy making it no longer adequate to conduct background screening checks just in the United States, a major trend will be the necessity of international background screening since an increasing number of workers will have spent part of their professional careers abroad.

Employers in the U.S. have long recognized that conducting due diligence on new hires with background screening is a mission critical task that can help them avoid being the subject of negligent hiring lawsuits if they hire someone that they should have known – through the exercise of due diligence – was dangerous, unfit or unqualified.

However, with the increased mobility of workers across international borders it is no longer adequate to conduct these background screening checks just in the United States. Background screening also must be done internationally since an increasing number of workers have spent part of their professional careers abroad. The number of foreign countries from which U.S. employers may seek information about applicants with international background screening is expansive, and includes Australia, Brazil, Canada, Chile, China, France, Germany, India, Ireland, Israel, Japan, Malaysia, Mexico, Nigeria, Pakistan, Philippines, Russia, Singapore, South Africa, and the United Kingdom (U.K.).

This is Trend #5 of the Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011.

A need for international background screening can occur in several situations:

  • Job applicant from abroad: International background screening is necessary when an American company is considering a job applicant who was born abroad and is either coming directly to the U.S. from another country or has not been in the United States long enough to rely solely upon checking American references and criminal records.
  • Job applicant spent time abroad: International background screening is necessary when an American company is considering a job applicant who spent considerable time abroad in another country and the employer wants to obtain data for that time period.
  • Job applicant from other country will work in that country: International background screening is necessary when an American company is hiring an individual in another country to work in that country, such as an outside sales representative.

Recent U.S. government statistics show why international background screening is so necessary. Employers should understand that, statistically speaking, people in the United States who were born – or have spent significant time – abroad make up a surprisingly large amount of the current U.S. population:

What these figures tell employers is that only performing background screening within the U.S. is probably not enough. More and more, employers find they need to obtain information from outside of the United States on such matters as criminal records, past employment, and educational accomplishments with international background screening.

However, due to the perceived difficulty in performing international background screening, some employers do not attempt to verify international employment or education credentials, or perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer from their due diligence obligation, or “duty of care,” associated with hiring.

An employer cannot simply take a position that it is harder to exercise due diligence because the research is international. Nor can employers simply assume that the U.S. government has conducted background checks if the worker was issued a visa since government checks are generally not aimed at verifying credentials or checking for criminal records for employment purposes.

To exercise due diligence in hiring workers with backgrounds outside the U.S., employers should – at a minimum – consider international background screening for:

  • Criminal records
  • Employment
  • Education
  • Publicly available terrorist lists and international databases
  • Driver’s license, media searches, and – in some countries – credit reports

Employers should also be aware of special challengers when it comes to international background screening. Each and every country is completely different when it comes to international background screening. Techniques, information, and availability of public records that are taken for granted here in the United States are often times not available abroad. Outside of the U.S., there is generally very limited access to public records and the types of information needed for background screening. Each country has its own laws, customs, and procedures for background screenings.

When performing international background screening, there are a number of the special challenges and practical difficulties employers may face, including:

  • Differences in courts and legal systems
  • Language barriers
  • Name variations including transliteration into English and Phonetic transcription or “transcribing”
  • Time differences
  • Means and cost of communications
  • Differing calendars and holidays
  • Inherent risk of fraud
  • Costs more expensive compared to background screening in U.S.
  • Payments must be made in another country’s currency

Although international background screening can be challenging, it is not impossible. Employers can find themselves in hot water if they assume that international background screening is too difficult or expensive and simply bypass the process.

Under the Fair Credit Reporting Act (FCRA), both employers and background screening firms still have certain obligations regarding international background screening. If the task of international background screening is outsourced to a U.S. background screening firm, that firm has an FCRA obligation to take reasonable procedures to insure accuracy. If there is a negative public record, such as a criminal record “hit,” then the U.S. background screening firm must make certain the information is correct and up-to-date, and supplied in a way that does not violate any data or privacy protection rules.

Employment Screening Resources (ESR) – a leading background check provider both nationally and internationally accredited by the National Association of Professional Background Screeners (NAPBS) and the third U.S. background screening company to be “Safe Harbor” certified – recommends employers implement an international Background Screening program that best fits their needs. ESR recommendations include:

  • Employers not assume that just because a person has spent time outside of the U.S., that international background screening is not possible.
  • Employers not assume the U.S. government has performed a background check that relieves employers of their due diligence obligation to conduct their own screening.
  • Employers perform international background screening in a legally compliance manner.
  • Employers perform the broadest criminal search allowed in each country, the international ESR criminality search.
  • Employers perform verification of, at the very least, the highest education that the applicant attained, the last employment where the applicant worked.
  • Employers pay particular attention to international education verifications since the world is awash with phony schools, fake degrees, and worthless diplomas.
  • Employers never identify applicants as “applicants born abroad” but rather simply as “international screening” since it may be discriminatory under Equal Employment Opportunity Commission (EEOC) regulations.
  • Employers use proper consent forms for European Union (EU) “Safe Harbor” data privacy standards.
  • Employers perform international credit reports and driving records when available in some countries.

In January of 2011, Employment Screening Resources (ESR) will release a white paper ‘Introduction to International Background Screening’ that will provide information about what risks employers conducting such international background screenings should be aware of and the many ways background screening overseas differs from background screening in the United States. Some of the topics covered in the white paper include:

  • Two Types of International Background Checks:  Screening vs. Investigation
  • Why Employers Cannot Assume Government Screens Workers from Abroad
  • Challenges When Performing International Background Screenings
  • Tips on International Education & Employment Verifications
  • Terrorist Watch Search Lists, International Databases & International Sanctions Search
  • Legal Implications for Employers Doing International Background Checks
  • EU “Safe Harbor” Privacy and Data Protection in International Background Screening
  • Recommendations for International Background Screening Programs

To read more ESR News articles about International background screening, visit http://www.esrcheck.com/wordpress/tag/international-background-checks/.  To read the article ‘Introduction to International Screening’ by Employment Screening Resources (ESR) founder and President Lester Rosen, visit: http://www.esrcheck.com/articles/internationalscreening.php.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Fifth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be Safe Harbor’Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.census.gov/prod/2010pubs/acsbr09-15.pdf
http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf 
http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf
https://www.export.gov/safeharbor/

ESR Background Screening Trend 6 for 2011: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011

Trend No. 6: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

A background screening trend that recently emerged where employers used social network sites such as Facebook – the most popular social networking site with over 500 million active users worldwide – to run ‘Social Network Background Checks’ on job candidates should become even more prevalent in 2011, and increase the legal risks for employers.

No discussion about background screening these days is complete without an analysis of how the Internet is used for hiring. From social network sites such as Facebook and Twitter to blogs, videos on YouTube, and business connection sites like LinkedIn, employers focus with laser-like intensity on how to use the Internet for background screening job candidates. What is sometimes overlooked in the rush to use the Internet for background screening is the one question employers need to ask: What are the legal risks in using the Internet for hiring?

The answer involves issues of discrimination, authenticity, and privacy. If employers insist on using social network sites for background screening, then they must realize that much of the ‘new media’ available to them for background screening is still covered by current employment regulations.

“Employers and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as MySpace, Facebook, LinkedIn, Twitter, and other online sources,” says Lester Rosen, founder of Employment Screening Resources (ESR) and author of The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,’ the first comprehensive book on employment screening. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

Employers care about the content on social networking sites used by job candidates. A 2009 survey from leading job networking site CareerBuilder.com that found nearly half of employers use social networking sites to screen job candidates, more than double the amount from 2008. The survey of more than 2,600 hiring managers revealed that 45 percent of employers used social networking sites to research candidates and 35 percent of employers rejected applicants based on what was uncovered on social networking sites. Of these 35 percent:

  • 53 percent cited provocative/inappropriate photographs or information.
  • 44 percent cited content about drinking or using drugs.
  • 35 percent cited bad-mouthing of previous employers, co-workers or clients.
  • 29 percent cited poor communication skills.
  • 26 percent cited discriminatory comments.
  • 24 percent cited misrepresentation of qualifications.
  • 20 percent cited sharing confidential information from a previous employer. 

Allegations of discrimination are one critical area where employers can find themselves in hot water when utilizing social network sites for background screening. Employers may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. There may even be photos showing a physical condition protected by the Americans with Disabilities Act (ADA) or showing candidates wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information (TMI). Once employers are aware that an individual is a member of a protected group, it is difficult to claim that they can “un-ring the bell” and forget they saw such information.

Another issue facing employers using the Internet to source is authenticity. In other words, if negative information about a candidate is found on the Internet or a social networking site, how is the employer supposed to verify that the information is accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?

Another problem concerning Internet sourcing and screening yet to be fully explored by the courts is the issue of privacy. Contrary to popular opinion, everything online is not necessarily fair game. Certainly, people choosing not to adjust their privacy settings so that their social network sites are easily available on Internet searches may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that – a place to freely socialize. The argument would be that in their circles it is the community norm, and a generally accepted attitude, that their pages are off limits to unwelcome intruders, even if the door is left wide open. After all, burglars can hardly defend themselves on the basis that the front door to the house they stole from was unlocked so they felt they could just walk in.
 
Yet another issue is legal off-duty conduct.  A number of states protect workers engaged in legal off-duty conduct. If such a search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination 
 
All of these concerns are just the tip of the iceberg when it comes to social network background checks.  Employers need to be very careful when it comes to harvesting information about job candidates from the internet.  Employers need to know how to protect themselves against allegations of discrimination and issues with authenticity and privacy if no further action is taken after the discovery on the Internet that a person is a member of a protected class or when finding negative information.  How and when an employer obtains such information is critical.

For employers wanting to use social network sites to screen a candidate, the safest path when using the Internet is to obtain consent from the candidate first and only search once there has been a conditional job offer to that candidate. This procedure helps ensure that impermissible information is not considered before the employer evaluates a candidate using permissible tools such as interviews, job-related employment tests, references from supervisors, and a background check.

At that point, after using permissible screening tools, the reason for employers to search social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about the employer’s firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.

In addition, employers in the sourcing stage may want to consider having a clear internal policy and documented training that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are valid predictors of job performance will be considered, taking into account the job description, and the knowledge, skills, and abilities required for the position. It also helps to have objective and documented methods and metrics on how to source and screen on the Internet.

Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible background screening information is not given to the decisions maker. The in-house background screening should also have training in the non-discriminatory use of background screening information, knowledge of the job desiccation and use objective methods that are the same for all candidates for each type of position.  That way, only permissible information is transmitted to the person that is making the decision.  Again, this is best done post-offer but pre-hire and with consent. An employer may be looking for online information concerning upon job suitability.  For example, did the potential employee say derogatory things about past employers or co-workers, or demonstrate that they are not the best candidate for the job. 

Although employers may request that background screening firms perform this function, there are a number of drawbacks. First, a background screening firm does not have the same in-depth knowledge the employer has of the details of the position.  In addition, if a social network background check is done by a background screening firm, the search falls under the federal Fair Credit Reporting Act (FCRA) which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy.  Because a background screening firm has no way of knowing if the online information is accurate, it is difficult for background screening firms to perform this service consistent with the FCRA.  In other words, due to the FCRA, background screening firms may not be best suited to perform these types of ‘social network background check’ searches.

On the other hand, failure to utilize these social networking sites when a search could have revealed relevant information could expose an employer to claims of negligent hiring. 

The bottom line is that employers must approach using social network background screening with caution before assuming everything is fair game in the pursuit of job candidates or otherwise face potential legal landmines that could destroy their business.

To read more ESR News articles about using social network sites for screening, visit http://www.esrcheck.com/wordpress/tag/social-networking-sites/.  Learn more about Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) – a leading provider of background checks accredited by The National Association of Professional Background Screeners (NAPBS®) – is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Sixth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be Safe Harbor’ Certified for data privacy protection. To learn more, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

ESR Background Screening Trend 8 for 2011: Increased Privacy Concerns Over Offshoring of Personally Identifiable Information (PII)

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011

Trend No. 8: Increased Privacy Concerns Over Offshoring of Personally Identifiable Information (PII)

A new background screening trend emerging in 2011 will be the increased concern over the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers.

A recently signed California law appears to be the first in the United States to regulate the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers collected for background checks, a controversial practice where private data of U.S. citizens – such as names, dates of birth, addresses, and Social Security numbers (SSNs) – is sent overseas, outside the United States and its territories, and beyond the reach of U.S. privacy laws.

In September 2010, Governor Arnold Schwarzenegger signed into law California Senate Bill 909 (SB 909), which addresses the issue of personal information being sent offshore. SB 909 – which takes effect January 1, 2012 to allow time for background check firms to provide new releases to employers or modify online language – amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address for “information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.” In addition:

  • If a background check company does not have a web site, then the background check company must provide the consumer with a phone number where the consumer can obtain the same information.
  • The background check company’s privacy policy must contain “information describing its privacy practices with respect to its preparation and processing of investigative consumer reports.”
  • Background check companies in California (and firms that do business in California) must have a statement in their privacy policy entitled “Personal Information Disclosure: United States or Overseas” that indicates whether the personal information will be transferred to third parties outside the United States or its territories through the process of offshoring.
  • “Third parties” are defined in SB-909 as including, “but not being limited to, a contractor, foreign affiliate, wholly owned entity, or an employee of the investigative consumer reporting agency” and also requires a “separate section that includes the name, mailing address, e-mail address, and telephone number of the investigative consumer reporting agency representatives who can assist a consumer with additional information regarding the investigative consumer reporting agency’s privacy practices or policies in the event of a compromise of his or her information.”
  • In the event a consumer is harmed by virtue of a background check company negligently sending data offshore, SB-909 provides for damages to the consumer.

The practice of offshoring – whether personal information or jobs – can have a negative impact on network security since, for all intents and purposes, once Personally Identifiable Information (PII) is sent offshore outside the U.S. it is beyond the reach and protection of U.S. laws in cases involving identity theft or privacy issues. As reported earlier on ESR News, other states besides California have data privacy laws in effect, in legislation, or have voiced concerns over data privacy. For example:

As for the definition of Personally Identifiable Information (PII), the following are often used for the express purpose of distinguishing individual identity, and thus are clearly PII under the definition used by the U.S. Office of Management and Budget:

  • Full name
  • Birthday
  • Birthplace
  • Social Security Number (SSN)
  • Vehicle registration plate
  • Driver’s license number
  • Credit card number
  • National identification number
  • IP ( Internet Protocol) address
  • Face, fingerprints, or handwriting
  • Digital identity
  • Genetic information

In addition, according to a 2009 security survey of 350 network administrators and IT executives executed by Amplitude Research and commissioned by VanDyke Software, offshoring of Information Technology (IT) jobs can lead to increases in data breaches. The survey more than two-thirds (69 percent) of respondents felt outsourcing technical jobs offshore had a negative impact on network security, and 61 percent of workers at companies outsourcing IT jobs said their company had experienced a data breach.

The security survey naturally raises questions as to the safety of offshoring Personally Identifiable Information (PII) of American job applicants in order to prepare background checks. ConcernedCRAs, a group of more than 120 Consumer Reporting Agencies (CRAs), opposes the practice of offshoring Personally Identifiable Information (PII) of U.S. citizens outside the country to be processed beyond U.S. privacy laws.

A member of ConcernedCRAs, Employment Screening Resources (ESR) does not offshore Personally Identifiable Information (PII) and all domestic background checks are performed exclusively in the United States. ESR does all processing and preparation in the U.S. in order to protect applicants and employers, the only exception being when performing an international verification using information residing outside the U.S. ESR was also the third U.S. background screening firm to become “Safe Harbor” Certified for data privacy protection. See: https://safeharbor.export.gov/companyinfo.aspx?id=9239.

Before selecting a U.S. background check firm, employers should determine if that firm is processing information outside of the country. The risk is significant, even if the offshore facility is wholly owned or a subsidiary of a U.S. firm. An employer needs to have a full understanding of how data and privacy is protected once it leaves the U.S., and what duty is owed to job applicants in terms of notice that their PII is being sent abroad.

To read more about ‘Offshoring’ and ‘Personally Identifiable Information’ on ESR News, visit articles tagged at http://www.esrcheck.com/wordpress/tag/offshoring/ and http://www.esrcheck.com/wordpress/tag/personally-identifiable-information/.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Eighth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.  

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be Safe Harbor’ Certified for data privacy protection. To learn more, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Background Checks Possible Alternative to Invasive Transportation Security Agency (TSA) Screening at Airports

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor
 
A blog on Politico.com titled ‘Alternative to TSA pat-downs: More background checks’ proposes that if Americans don’t like the invasive techniques used by the Transportation Security Agency (TSA) to improve air travel security – such as full-body scans that can penetrate clothing and “enhanced” pat-downs some label groping – an alternative may be background checks that scrutinize information of airline passengers.

The blog’s author, reporter Josh Gerstein, writes that the vocal backlash against the body scanning and pat-downs by the federal government could pressure the government to introduce security measures such as background checks of airline passengers that would include in-depth interrogations of travelers at airports, government scrutiny of airline information of passengers, and the creation of a secure and standardized national ID card.

Many security experts favor background checks instead of body scanners and pat-downs as a method for screening air travelers. This alternative approach to airport security looks for terrorists in advance and calls for singling out suspicious passengers and subjecting them to intense questioning instead of spending equal time screening all passengers. By gathering background check information about passengers before they arrive for flights, security can focus more time on the careful screening of those who raise red flags and less time frisking the elderly, pregnant women, and young children, experts say.

The more intrusive pat-downs in particular – which “some passengers have compared to sexual molestation,” Gerstein writes – were seen by some as a tipping point in the fight against terror over the question of how much privacy should U.S. citizens relinquish in the name of improved security against terrorism. A security adviser said that American culture views “the laying on of hands by anyone in authority” as a more serious invasion of privacy than investigating a passenger’s travel history through a background check. Even so, an ABC News/Washington Post poll cited in the Politico.com blog found that public reaction was roughly split, 50-50, on whether the pat-downs were a good idea.

Employment Screening Resources (ESR), an accredited provider of background checks, believes effective background checks occur at the intersection of privacy and security. For more information about instituting background check programs, visit the Employment Screening Resources website at http://www.ESRcheck.com and read the ESR News blog at http://www.ESRcheck.com/wordpress/.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations and Business Development, at 415.898.0044 or jcallahan@ESRcheck.com.

New CA Law Regulates Offshoring Personally Identifiable Information (PII) of Consumers Used in Background Checks

By Thomas Ahearn, ESR News Editor

A recently signed California law appears to be the first in the United States to regulate the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers used during background checks – such as names, dates of birth, addresses, Social Security numbers (SSNs), and financial data – overseas and outside the U.S. and its territories.

In September 2010, Governor Arnold Schwarzenegger signed into law California Senate Bill 909 (SB 909), which addresses the issue of personal information being sent offshore. SB 909 – which takes effect January 1, 2012 to allow time for background check companies to provide new releases to employers or modify online language – amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address for “information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

If a background check company does not have a web site, then the background check company must provide the consumer with a phone number where the consumer can obtain the same information. In addition, the background check company’s privacy policy must contain “information describing its privacy practices with respect to its preparation and processing of investigative consumer reports.” Specifically, background check companies in California (and firms that do business in California) must have a statement in their privacy policy entitled “Personal Information Disclosure: United States or Overseas” that indicates whether the personal information will be transferred to third parties outside the United States or its territories through the process of offshoring.

SB-909 defines “third parties” as including, “but not being limited to, a contractor, foreign affiliate, wholly owned entity, or an employee of the investigative consumer reporting agency” and also requires a “separate section that includes the name, mailing address, e-mail address, and telephone number of the investigative consumer reporting agency representatives who can assist a consumer with additional information regarding the investigative consumer reporting agency’s privacy practices or policies in the event of a compromise of his or her information.” In the event a consumer is harmed by virtue of a background check company negligently sending data offshore, SB-909  provides for damages to the consumer.

As reported earlier on ESR News, the practice of offshoring – whether personal information or jobs – can have a negative impact on network security since, for all intents and purposes, once personal information is sent offshore outside the U.S. it is beyond the reach and protection of U.S. laws in cases involving identity theft or privacy issues. Also, offshoring of Information Technology (IT) jobs can lead to increases in data breaches.

According to a 2009 security survey of 350 network administrators and IT executives executed by Amplitude Research and commissioned by VanDyke Software, more than two-thirds (69 percent) of respondents felt outsourcing technical jobs offshore had a negative impact on network security while only 9 percent felt it had a positive impact. In addition, the security survey found:

  • 25 percent of respondents in the survey belonged to companies that outsourced IT jobs to other countries.
  • Of these outsourcing firms, about half said their security had been negatively impacted and 61 percent said their company had experienced a data breach.
  • In contrast, only 35 percent of companies not outsourcing reported a data breach.

The security survey naturally raises questions as to the safety of sending Personally Identifiable Information (PII) of American job applicants offshore in order to prepare background checks. A group of more than 120 Consumer Reporting Agencies (CRAs) called ConcernedCRAs opposes the practice of offshoring Personally Identifiable Information (PII) of U.S. citizens outside the country to be processed beyond U.S. privacy laws.

A member of ConcernedCRAs, Employment Screening Resources (ESR) does not offshore Personally Identifiable Information (PII) and all domestic background checks are performed exclusively in the United States. ESR does all processing and preparation in the U.S. in order to protect applicants and employers, the only exception being when performing an international verification using information residing outside the U.S.

To read more about offshoring on ESR News, visit articles tagged ‘offshoring’ at: http://www.esrcheck.com/wordpress/tag/offshoring/.

To read California Senate Bill 909, visit: http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0901-0950/sb_909_bill_20100929_chaptered.pdf.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is recognized by The National Association of Professional Background Screeners (NAPBS®) as Background Screening Credentialing Council (BSCC) Accredited for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations and Business Development, at 415.898.0044 or jcallahan@ESRcheck.com.

Challenges of Drug Testing Employees for Prescription Drugs Revealed in NY Times Article

By Thomas Ahearn, ESR News Editor

The story of a woman who lost her job after working more than two decades at an automotive plant because of a failed drug test in which she tested positive for a legally prescribed drug is revealed in a recent  New York Times article, ‘Drug Testing Poses Quandary for Employers.’

The woman’s employer for 22 years had changed its drug testing policy to test for selected prescription drugs in addition to illegal drugs, according to the Times, and the prescription medication she took for back pain — a narcotic prescribed by her doctor called hydrocodone, a drug her employer considered unsafe — showed up on her drug test.

The Times reports that the woman has sued her former employer for discrimination and invasion of privacy, while the automotive company contends employees on certain medications pose a safety hazard and its employment drug testing policy considered a prescription drug unsafe if its label included a warning against driving or operating machinery. The case is currently in court.

Increasingly, employers are struggling to find ways to address “the growing reliance of Americans on powerful prescription drugs for pain, anxiety, and other maladies” that may indicate that many of these employees report to work “with potent drugs in their systems,” reports the Times.

But issues of ‘security’ and ‘privacy’ seem to be pitted against each other, as employers try to maintain safe work environments through employment drug testing but employees cite privacy concerns and contend that they should not be fired for taking legal medications, especially if for injuries sustained on the job.

Citing data from the results of more than 500,000 drug tests, the Times reports:

  • The rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent in 2009 alone.
  • Workers tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

Because of the wide use of prescription drugs in today’s society, employers now face the challenge of setting proper employment drug testing rules about prescription drug use in the workplace to find the right balance between ‘worker security’ and ‘worker privacy’ in order to avoid violating the Americans with Disabilities Act (ADA). According to lawyers with the Equal Employment Opportunity Commission (EEOC), the ADA prohibits employers from asking employees about prescription drug use unless those employees compromise safety or cannot perform their job for medical reasons, the Times reports.

“Like background screening, effective drug testing should occur at the intersection of security and privacy,” says Attorney Lester Rosen, founder and President of Employment Screening Resources (ESR), a San Francisco area company that provides background checks and drug testing, and author of ‘The Safe Hiring Manual – The Complete Guide To Keeping Criminals, Terrorists, and Imposters Out of Your Workplace.’ “Employers need to balance a safe and secure working environment that protects workers and the general public with the legitimate concerns employees have about privacy issues.”

For more information about effective employment drug testing, visit the from Employment Screening Resources (ESR) Services page at
http://www.esrcheck.com/services/.

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

 Source:
http://www.nytimes.com/2010/10/25/us/25drugs.html?_r=1

Ohio Governor Issues Executive Order Prohibiting Use of Public Funds for Practice of Offshore Outsourcing Known as Offshoring

By Thomas Ahearn, ESR News Blog

Ohio Governor Ted Strickland has issued an executive order that prohibits the expenditure of public funds for services provided offshore and beyond the boundaries of the United States and its territories – a practice known as Offshore Outsourcing or “Offshoring” – a move that is a reaction to public outcry after a El Salvadoran call center was used for Ohio’s appliance rebate program, according to a report on Cleveland.com.

A press release on the Office of the Governor website at Governor.Ohio.gov reveals that the state’s Department of Development awarded a $357,300 contract to a Texas-based service provider in March 2010 to assist with the agency’s implementation of the $11 million federal stimulus-funded appliance rebate program which rewarded consumers with federal stimulus dollars when they bought energy-efficient appliances.

Despite state procurement requirements designed to restrict service providers from using public funds for offshore labor – in particular, an Ohio Department of Administrative Services (DAS) directive that requires agencies to ask potential vendors to list all locations where the services will be performed – the contract was awarded to a company that practiced “offshoring” and used offshore labor.

The company in Texas never told state officials in Ohio it would use a foreign call center, and the state did not require the information with bids. State officials learned about the call center from an Ohio resident who asked a call center employee where the operation was located, according to the press release.

“Ohio’s policy has been – and must continue to be – that public funds should not be spent on services provided offshore,” Strickland states in the Executive Order.  “Throughout my Administration, procurement procedures have been in place that restrict the purchase of offshore services.”

In June 2008, Strickland signed an executive order (E.O. 2008-12S) that implemented Think Ohio First practices promoting economic development by maximizing the use of Ohio businesses when agencies conduct purchases. 

The full text of the governor’s Executive Order 2010-09S “Banning the Expenditure of Public Funds for Offshore Services” appears in the press release:

  • 1. Ohio’s Economic Vitality Necessitates Constant Vigilance in State Job Creation Efforts.  State officials and employees must at all times remain passionately focused on initiatives that will create and retain jobs in the United States in general and in Ohio, in particular, and must do so especially during Ohio’s continuing efforts to recover from the recent global recession.
  • 2. No Public Funds Should be Spent on Services Provided Offshore.  Allowing public funds to pay for offshore services undermines economic development objectives and any such offshore services carry unacceptable quality and security risks. a. The Purchase of Offshore Services with Public Funds Undermines Economic Development and Other Job Creation and Retention Objectives.  The expenditure of public funds for services provided offshore deprives Ohioans and other Americans critical employment opportunities.  It also undermines efforts to attract businesses to Ohio and retain them in Ohio, initiatives in which the State has invested heavily. b. The Purchase of Offshore Services Has Unacceptable Business Consequences.   The use of offshore service providers could pose unacceptable data security, and thus privacy and identity theft risks.  There are pervasive service delivery problems with offshore providers, including dissatisfaction with the quality of their services and with the fact that services are being provided offshore.  It is difficult and expensive to detect illegal activity and contract violations and to pursue legal recourse for poor performance or data security violations.  The State’s use of offshore service providers ill-serves the people of Ohio who are the primary consumers of the services provided by the State.
  • 3. Ohio’s Policy Has Been – and Must Continue To Be – That Public Funds Should Not Be Spent on Services Provided Offshore. Throughout my Administration, procurement procedures have been in place that restrict the purchase of offshore services.  Despite these requirements, federal stimulus funds were recently used to purchase services from a domestic company which ultimately provided some of those services offshore.  This incident was unacceptable and has caused me, through this Order, to redouble my commitment to ensure that public funds are not expended for offshore services.
  • 4. Additional Steps Will Ensure that Public Funds Are Not Spent on Services Provided Offshore.  In order to ensure that the State of Ohio makes no expenditures for services provided offshore, I hereby order the following: a. No Cabinet Agency, Board or Commission (Executive Agency) shall enter into any contract which uses any funds within its control to purchase services which will be provided outside the United States.  This Order applies to all funds in the custody of an Executive Agency, be they from state, federal, philanthropic or private sources.  It applies to all purchases of service made directly by an Executive Agency and services provided by sub-contractors of those providing services purchased by an Executive Agency. b. This Executive Order will be personally provided, by the Director, Chair or other chief executive official of each Executive Agency, to the Chief Procurement Officer or other individual at that entity responsible for contracts for services. c. The Department of Administrative Services, through Ohio’s Chief Procurement Officer (OCPO), shall have in place, by August 31, 2010, procedures to ensure all of the following: i. All agency procurement officers, or the person with equivalent duties at each Executive Agency (APOs), have standard language in all Executive Agency contracts which: (a) Reflect this Order’s prohibition on the purchase of offshore services. (b) Require service providers or prospective service providers to: (i) Affirm that they understand and will abide by the requirements of this Order. (ii) Disclose the location(s) where all services will be performed by any contractor or subcontractor. (iii) Disclose the locations(s) where any state data associated with any of the services they are providing, or seek to provide, will be accessed, tested, maintained, backed-up or stored. (iv) Disclose any shift in the location of any services being provided by the contractor or any subcontractor. (v) Disclose the principal location of business for the contractor and all subcontractors who are supplying services to the state under the proposed contract. ii. All APOs are ensuring that all quotations, statements of work, and other such proposals for services affirm this Order’s prohibition on the purchase of offshore services and include all of this Order’s disclosure requirements. (a) Any such proposal for services lacking the affirmation and disclosure requirements of this Order will not be considered. (b) Any such proposal where the performance of services is proposed to be provided at a location outside the United States by the contractor or any sub-contractor, will not be considered. iii. All procurement manuals, directives, policies, and procedures reflect the requirements of this Order. iv. All APOs have adequate training which addresses the terms of this Order.
  • 5. Exceptions.  Nothing in this Order is intended to contradict any state or federal law.  In addition, this Order does not apply to: a. Services necessary to support the efforts of the Department of Development Global Markets Division to attract jobs and business to the State of Ohio, including incidental services for the support of trade missions, payment of international staff, and services necessary for the operation of international offices. b. Academic, instructional, educational, research or other services necessary to support the international missions of Ohio’s public colleges and universities.
  • 6. I signed this Executive Order on August 6, 2010 in Columbus, Ohio and it will not expire unless rescinded.                                    

            Ted Strickland, Governor

Banning the practice of offshoring where public funds are concerned – like the governor of Ohio issuing an executive order prohibiting use of public funds for outsourcing – may seem like a no brainer to many, but according to a blog on The Economic Populist the use of taxpayer dollars to offshore outsource jobs happens every day, from food stamp and unemployment support to large software design projects.

The Economic Populist blog also notes that as a result of the State awarding a stimulus contract to support the appliance rebate program to a contractor that practiced offshoring, workers in El Salvador were able to come into contact with the personal and sensitive financial data – also known as Personally Identifiable Information (PII) – of people from Ohio.

The controversial practice of “offshoring” has come to the attention of other states as well. As reported earlier on the ESR News Blog, California Governor Arnold Schwarzenegger recently signed into law California Senate Bill 909 (SB 909), which appears to be the first law in the nation that addresses the issue of personal information being sent offshore outside the United States or its territories.

SB 909 amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address where a consumer “may find information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

While SB 909 does not prohibit offshoring when it comes to background checks, the law will require a disclosure in the privacy statement of the background check firm’s website, as well as a link to that privacy statement.

Employment Screening Resources (ESR) does not offshore information contained in background check reports and is a member of Concerned CRAs, a group of Consumer Reporting Agencies (CRAs) that oppose the practice of offshoring information of U.S. citizens outside the country.

For more information, visit the ESR News Blog articles tagged “offshoring” at http://www.esrcheck.com/wordpress/tag/offshoring/.

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://governor.ohio.gov/Default.aspx?tabid=1753
http://www.cleveland.com/business/index.ssf/2010/08/no_public_funds_for_outsourcin.html
http://www.economicpopulist.org/content/ohio-bans-use-public-funds-offshore-outsourcing
http://www.concernedcras.com/no_offshoring.htm
http://www.esrcheck.com/wordpress/2010/09/30/hot-off-the-press-new-california-law-on-background-checks-appears-to-be-first-law-in-u-s-to-regulate-offshoring-of-personal-data-overseas/

Senator Sends Letters to Social Networking Sites Facebook and MySpace after Wall Street Journal Reports Privacy Breach

By Thomas Ahearn, ESR News Blog

Senator John D. (Jay) Rockefeller IV, Chairman of the U.S. Senate Committee on Commerce, Science, and Transportation, has sent letters to the heads of two popular social networking sites – Facebook CEO Mark Zuckerberg and MySpace President Michael Jones – requesting more information about privacy breaches recently reported in the Wall Street Journal (WSJ), according to a press release from the Senator that includes the text of both letters.

Senator Rockefeller states in both letters that he is troubled by a recent Wall Street Journal investigation report that revealed the practice of Facebook, MySpace, and affiliated applications (or “apps”) transferring user IDs and user personal information to marketing firms, tracking companies, and third-party advertisers without their knowledge. As reported by the WSJ:

  • Third-party applications have transferred Facebook users’ personal information to marketing firms, data brokers and tracking companies. This violates Facebook’s explicitly stated privacy policy.
  • MySpace has shared user IDs with third-party advertisers. This has happened after users clicked on advertisements or accessed affiliated third-party applications.

Senator Rockefeller is quoted in the press release saying that these reports “raise serious questions about social networking sites’ commitment to enforcing their own privacy policies on behalf of consumers” and that, as Chairman of the Senate Commerce Committee, he intends to “find out whether today’s social networking sites are adequately protecting their users’ personal information.”

In the letter to Facebook CEO Mark Zuckerberg, Senator Rockefeller requests answers – with specificity – to the following questions:

  • 1) How does Facebook enforce its Privacy Policy relating to affiliated application operators and websites? What logistical protocols are in place to promote maximum compliance? What resources, including the number of personnel, does Facebook dedicate to monitoring and enforcing application operators’ compliance with its Privacy Policy?
  • 2) What penalties does Facebook impose on application operators and websites that violate the company’s Privacy Policy? Are offending application operators allowed to continue to do business with Facebook?
  • 3) Does Facebook take steps to retrieve information from application operators found in violation of the company’s Privacy Policy?
  • 4) The Journal article quotes a Facebook official that asserts the company has “taken steps… to significantly limit RapLeaf’s ability to use any Facebook-related data.” What exactly does this mean?
  • 5) According to the Journal article, there appears to be a pattern of privacy infractions involving Facebook applications. Specifically, what other past problems has Facebook encountered with regard to applications, and what steps did Facebook take to rectify them? Are these applications still available on Facebook’s platform?
  • 6) To the extent that personal data has been shared in violation of Facebook’s Privacy Policy, what steps has Facebook taken to notify individual users as to the specific information that has been mishandled, and who has had access to that information?

In the letter to MySpace President Michael Jones, Senator Rockefeller requests answers – again, with specificity – to the following questions:

  • 1) Why does MySpace’s Privacy Policy place the responsibility on Members to control their personal information when interacting with affiliated apps and advertisers, when other social networking sites have more restrictive policies that better protect consumer privacy?
  • 2) Why does MySpace’s Privacy Policy assert that the company “does not control” and “cannot dictate” the actions of third-party applications on how they retrieve and use Members’ information when other social networking sites impose limits on the use of such information?
  • 3) The definition of PII is very narrow and does not capture a range of consumer information – such as user IDs – that could be used to identify MySpace Members. Please explain the rationale behind this narrow definition of PII and how it differs from personal information that is considered non-PII.
  • 4) How does MySpace reconcile the explicit terms of its own Privacy Policy with the Journal’s report that the company “had pledged to discontinue the practice of sending personal data” to ad networks and similarly prohibited third-party application operators from doing so?
  • 5) If MySpace has publicly pledged to prohibit such information transfers, how has this prohibition been enforced and what plans does MySpace have in place to effectively enforce its policy in the future?

The protection of Personally Identifiable Information (PII) of individuals – such as names, birthdates, addresses, identification such as Social Security Numbers (SSN) and driver’s licenses, and financial data – should be reflected in the Privacy Policy of every company.

Employment Screening Resources (ESR) does not re-sell or “offshore” Personally Identifiable Information (PII) of individuals and all domestic background checks are performed exclusively in the United States. Once Personally Identifiable Information is offshored and leaves the U.S., the PII is beyond the reach of U.S. privacy laws. A large number of background screening firms have also taken a position against offshoring Personally Identifiable Information at http://www.concernedcras.com/no_offshoring.htm.

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

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://commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=c26b5c34-cf19-4d8a-93aa-d9a29b749337

WSJ Investigation Finds Facebook in Privacy Breach with Personally Identifiable Information (PII) of Users

 By Thomas Ahearn, ESR News Blog

A recent Wall Street Journal (WSJ) investigation (see WSJ article ‘Facebook in Privacy Breach’) has found many of the most popular “apps” (applications) on the world’s most popular social networking site, Facebook.com, have been transmitting Personally Identifiable Information (PII) of tens of millions of users – such as names and names of friends – to advertising and Internet tracking companies.

After a WSJ investigation showed that personal IDs were being transmitted to third parties via “apps” – pieces of software that let Facebook’s more than 500 million users play games or share common interests with one another – a Facebook spokesman said the social networking site would take steps to “dramatically limit” the exposure of the PII of users. The WSJ found that all of the 10 most popular apps on Facebook were transmitting PII. 

According to the WSJ investigation, the information transmitted – the unique “Facebook ID” number assigned to every user on the site –is a public part of any Facebook profile that anyone can use to look up names of users even if they have set their Facebook information to be private. For those profiles set to share information with “everyone,” the Facebook ID reveals data including age, residence, job occupation, and photos.

As defined on Wikipedia.com, “Personally Identifiable Information (PII), as used in information security, refers to information that can be used to uniquely identify, contact, or locate a single person or can be used with other sources to uniquely identify a single individual. The abbreviation PII is widely accepted, but the phrase it abbreviates has four common variants based on personal, personally, identifiable, and identifying. Not all are equivalent, and for legal purposes the effective definitions vary depending on the jurisdiction and the purposes for which the term is being used.”

In addition, Personally Identifiable Information “has become much more important as information technology and the Internet have made it easier to collect PII, leading to a profitable market in collecting and reselling PII. PII can also be exploited by criminals to stalk or steal the identity of a person, or to plan a person’s murder or robbery, among other crimes. As a response to these threats, many web site privacy policies specifically address the collection of PII, and lawmakers have enacted a series of legislation to limit the distribution and accessibility of PII.”

According to Wikipedia, the following are often used for the express purpose of distinguishing individual identity, and thus are clearly PII under the definition used by the U.S. Office of Management and Budget:

  • Full name (if not common)
  • National identification number
  • IP address (in some cases)
  • Vehicle registration plate
  • Driver’s license number
  • Face, fingerprints, or handwriting
  • Credit card number
  • Digital identity
  • Birthday
  • Birthplace
  • Genetic information

The following are less often used to distinguish individual identity, because they are traits shared by many people. However, they are potentially PII, because they may be combined with other personal information to identify an individual.

  • First or last name, if common
  • Country, state, or city of residence
  • Age, especially if non-specific
  • Gender or race
  • Name of the school they attend or workplace
  • Grades, salary, or job position
  • Criminal record

For more information about PII, please visit Employment Screening Resources (ESR) News Blog for posts tagged ‘personally identifiable information’ at: http://www.ESRcheck.com/wordpress/tag/personally-identifiable-information/

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

Sources:

http://online.wsj.com/article/SB10001424052702304772804575558484075236968.html

http://en.wikipedia.org/wiki/Personally_identifiable_information

U.S. Supreme Court Ponders Question Whether Employment Background Checks by Government Ever Too Invasive

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

A Law Blog on the Wall Street Journal (WSJ) website asks if there are limits to what the government can ask during background checks for employees of defense contractors and at what point – if any – does a government background check into the drug use history of low-level employees violate the constitutional right to privacy of those employees.

The WSJ Law Blog cites an account from the LA Times in which the U.S. Supreme Court was called upon to ponder this interesting question during a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks due to the fact that Caltech runs the Jet Propulsion Laboratory under a contract with NASA.

Although the Caltech scientists won earlier at the Ninth Circuit, which held that questions on background checks violated their constitutional right to privacy, the LA Times story indicated most Supreme Court justices were more inclined to uphold the background checks as they explored the limits to what the government should be allowed to ask.

While the Times reported some justices would not close the door to all claims of privacy, the acting U.S. solicitor general urged the justices to rule that the government could ask open-ended questions of its employees and contract workers during background checks. A transcript of the Supreme Court arguments can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf .

However, Employment Screening Resources (ESR) believes it is important to keep in mind that the type of government security background check discussed in the WSJ Law Blog – and by the Supreme Court – is much more in-depth than what private sector employers perform during background checks of their employees.

In the private sector, background checks are done by private companies for private employers, and not the government. Private sector background checks are focused on those things that a person has done in their public lives, such as where they worked, what schools they attended, or public records concerning criminal matters.

For a summary of the more limited tools used in the private sector for background checks, visit the Employment Screening Resources (ESR) ‘Services’ page at http://www.ESRcheck.com/services/.

Sources:
http://blogs.wsj.com/law/2010/10/05/is-an-employment-background-check-ever-too-invasive/
http://www.latimes.com/news/nationworld/nation/wire/sc-dc-1006-court-drug-history-20101005,0,6356707.story
http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf