In an effort to help stop discrimination against unemployed Californians looking for work who may be passed over by employers or employment agencies only interested in hiring applicants who already have a job, newly proposed legislation in the state – California Assembly Bill No. 1450 (AB 1450) – would fine California employers and employment agencies that refuse to consider jobless applicants for job openings. The full text of California AB 1450 is available at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1401-1450/ab_1450_bill_20120105_introduced.pdf. Continue reading
Attorney at Law and author Lester Rosen, a safe hiring expert and CEO of nationwide background check company Employment Screening Resources (ESR), will present a session titled ‘Web 2.0 Caution! Using Social Networking Sites and Search Engines to Screen Applicants’ at The Recruiting Conference 2011 Summit being held from November 1 to 3, 2011 at the Intercontinental Hotel Chicago O’Hare. For more information on this session, visit http://www.therecruitingconference.com/les-rosen#session. Continue reading
To help employers and recruiters better understand the legal risks of using the Internet for recruiting and screening job applicants, Attorney Lester Rosen, the founder and CEO of nationwide accredited background check firm Employment Screening Resources (ESR), will present an audio conference titled ‘Web 2.0 Caution! The Legal Line You Walk When Using Social Media and Search Engines to Recruit and Screen Applicants’ on Wednesday, October 26, 2011 from 1:30 PM to 3:00 PM Eastern Time (10:30 AM to 12:00 PM Noon Pacific Time). For more information, visit: http://www.esrcheck.com/Newsletter/ESR-Speaks/Web-20-Caution-Using-Social-Networking-Sites-and-Search-Engines-to-Recruit-and-Screen-Applicants-98/. Continue reading
Attorney at Law and safe hiring expert Lester Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR), will present an audio conference titled ‘Web 2.0 Caution! The Legal Line You Walk When Using Social Media and Search Engines to Recruit and Screen Applicants’ on October 26, 2011 from 1:30 PM to 3:00 PM Eastern Time. For more information or to sign up, visit the Workplace Training Center website at: http://www.workplacetrainingcenter.com/Prod-2757.aspx. Continue reading
Attorney Les Rosen, a safe hiring expert and President of accredited background check firm Employment Screening Resources (ESR), will present the webcast ‘Background Checks and Recruitment Process Outsourcing (RPO)’ on Tuesday, July 19, 2011, from 2:00 PM to 3:00 PM ET at the HR.com’s Institutes for Human Resources (IHR) Recruitment Process Outsourcing (RPO) Virtual Workshop. For more information about the event, please visit: http://www.esrcheck.com/Newsletter/ESR-Speaks/Background-Checks-and-Recruitment-Process-Outsourcing-RPO-93/. Continue reading
In a decision ending over three years of litigation, a federal court in Michigan recently sanctioned the Equal Employment Opportunity Commission (EEOC) – the agency of the U.S. Government that enforces the federal employment discrimination laws – and ordered the EEOC to pay $751,942.48 for attorneys fees, expert fees, and court costs to a private employer, PeopleMark, Inc., a staffing company headquartered in Kentucky. Continue reading
The U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting on Wednesday, February 16, 2011 to examine the practice by employers of considering only those currently employed for job vacancies and excluding currently unemployed persons from job applicant pools, including in job announcements, and also to hear from invited panelists on the potential impact on job seekers, according to an EEOC press release titled ‘Out of Work? Out of Luck.’ Continue reading
Many employers do not realize they potentially face the same exposure from vendors, independent contractors, and temporary employees from staffing firms as they do from their own full-time employees when it comes to negligent hiring lawsuits. Risk management controls of employers often do not take into account the “need to know” through background checks of workers who are not on their payroll but are on their premises, with access to computer systems, clients, co-workers, assets, and the general public.
The law is absolutely clear that if a vendor, independent contractor, or temporary worker harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s full-time payroll. All of the rules of due diligence – which include background checks – apply with equal force to vendors, temporary workers, or independent contractors. A business can be liable if, in the exercise of reasonable care, the business should have known that a vendor, temporary worker, or independent contractor was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work. Employers can also be held liable under the legal doctrine of “co-employment,” which means that even though the worker is on someone else’s payroll, the business that uses and supervisees the worker can still be held liable for any misconduct.
However, many employers have found out the hard way that workers from a vendor or staffing firm or hired as an independent contractor without proper background checks can also cause damage. When an employer is the victim of theft, embezzlement, or resume fraud, the harm is just as bad regardless of whether the worker is on their payroll or someone else’s payroll. No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that everyday when engaging the services of vendors and temporary workers with proper background checks.
So-called “temporary” workers can cause permanent problems for employers without the background checks that are performed on full-time employees. As hiring of temporary workers increases – and since the hiring of temporary workers is usually an indication of hiring full-time workers in the future – employers will become increasingly more concerned with background checks of temporary workers in the coming year.
Employers do have difficulty ensuring they have exercised due diligence regarding vendors and independent contractors since there is sometimes not a direct employer-employee relationship. However, an employer still has liability issues if a vendor or independent contractor causes harm to third parties. Case law from courts throughout the United States is clear that businesses have liability for acts of independent contractors. The duty of care must be exercised in all aspects of hiring, and it applies to retaining the services of a vendor or independent contractor. For an example of why employers should be sure staffing firms run background checks, read ‘Staffing firm supplies embezzler with felony fraud conviction but not liable to Employer’ by Employment Screening Resources (ESR) President Lester Rosen at: http://www.esrcheck.com/wordpress/tag/recruiters/page/2/.
The practical issue for employers is how they ensure that vendors or workers hired by third parties are safe and qualified. Fortunately, there are a number of cost-effective avenues available to employers to protect their businesses, their workers, and the public. Employers can insist in any contract for any service that any time a worker comes on premises, that worker has been the subject of a background screening. This has become a practice gaining widespread acceptance in American businesses. An employer must have a hard and fast rule — no worker supplied by a third party is allowed to work unless the worker has a background check.
However, just ensuring that a staffing firm does background check can be insufficient unless the employer:
- Verifies that a legitimate and qualified background screening firm is being used. Employers should at a minimum insure the use of a background screening firm that is a member of the National Association of Professional Background Screeners (NAPBS) and, better yet, that the background screening firm is accredited by NAPBS.
- Verifies that the background screening protocols are the same as the employer uses for their own hires.
- Agree to a methodology for dealing with potentially negative information. Some employers insist that if any derogatory results are found that the employer be advised.
- Verifies that the release form being used by the staffing firm allows the workplace to view the report if needed. Equally important is that there be language in the release that confirms that the background check process does not create or imply an employer-employee relationship with the workplace where the staffing firm is sending the worker.
Many employers in order to ensure a uniform and consistent process, will require a staffing firm to utilize the same background screening firm the employer uses for their own hires.
Government job statistics show why background screening of temporary workers is so necessary. According to ‘THE EMPLOYMENT SITUATION — NOVEMBER 2010′ report from the U.S. Bureau of Labor Statistics (BLS), although the unemployment rate edged up to 9.8 percent and the number of unemployed persons was 15.1 million in November, temporary help services continued to add jobs over the month with temporary employment rising by 40,000. Employment in temporary help services has risen by nearly half a million jobs – 494,000 – since September 2009.
The number of persons employed part time for economic reasons is currently 9.0 million. Overall, employment in temporary services showed gains throughout 2010 and should remain strong into 2011, increasing the need for background checks of temporary workers.
- ‘THE EMPLOYMENT SITUATION – OCTOBER 2010’ – Employment in temporary help services increased by 35,000 in October.
- ‘THE EMPLOYMENT SITUATION — SEPTEMBER 2010’ – Professional and business services added 28,000 jobs in September, with temporary help services accounting for most of the gain.
- ‘THE EMPLOYMENT SITUATION – AUGUST 2010’ – Temporary help services employment was up 17,000 jobs over the month.
- ‘THE EMPLOYMENT SITUATION — JULY 2010’ – Employment in professional and business services and temporary help services showed little change over the month.
- ‘THE EMPLOYMENT SITUATION — JUNE 2010’ – Professional and business services employment continued to increase in temporary help services with 21,000 jobs in June.
- ‘THE EMPLOYMENT SITUATION — MAY 2010’ – 431,000 jobs were added but mostly temporary worker for the once-in-a-decade U.S. Census. Temporary help services added 31,000 jobs over the month.
- ‘THE EMPLOYMENT SITUATION — APRIL 2010’ The April 2010 jobs report showed the highest labor force increase in four years, reflecting the hiring of 66,000 temporary workers for the once-in-a-decade 2010 census.
As reported earlier on ESR News, even though the U.S. Census performed background checks for all applicants and employees according to the ‘BACKGROUND CHECK FAQ’ page, incidents involving temporary Census workers hired by the government serve as a prime example of why background checks of temporary workers is so important:
- Census Bureau Adopts Stricter Rules for Background Screening of Census Workers
- Alleged Crime by Census Worker Casts Spotlight on Government Background Checks
Examples other that the U.S. Census as to why temporary workers need employment screening include firms that routinely hire nighttime janitorial services without appropriate due diligence including background checks, and fast food industry routinely hiring suppliers and service firms that come into their restaurants to clean or deliver supplies. Without knowing who has the keys to facilities, employers give total strangers unfettered access to their business — and are totally exposed to the risk of theft of property, trade secrets, damages, or even workplace violence.
With more people looking for employment, there is a need for more employment screening. Whether the work is temporary, part-time, or full-time, an effective employment screening program can help any business succeed in any economy by ensuring a safe workplace. Employment Screening Resources (ESR) – a leading background check provider accredited by the National Association of Professional Background Screeners (NAPBS) –offers a complete array of vendor screening services.
For information on an effective background check program for vendors, staffing, and temporary workers, visit http://www.esrcheck.com/services/vendor_screening.php. To read the article ‘Staffing Vendors, Co-employment, Background Checks, and Lawsuits’ by Lester S. Rosen, President of Employment Screening Resources (ESR), visit: http://www.esrcheck.com/wordpress/2010/06/28/staffing-vendors-co-employment-background-checks-and-lawsuits/. For more general information on background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.
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 Fourth 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.
By Lester Rosen, ESR President
It appears that a new industry is popping up, whereby employers can go to third party firms that will scour the internet and locate and assemble a dossier on an applicant’s cyber identity. These “social network background checks” will search social networking sites like Facebok and Twitter, blogs, and anywhere else on the Internet for information about job applicants, including things they may have put online yeas ago and completely forgotten about.
Companies providing social network background checks present a number of challenging questions that HR professionals and recruiters will need to deal with:
- First, such a site may well be categorized as a Consumer Reporting Agency (CRA). Under the FCRA section 603(f) a CRA can be a third party firm that engages is the “assembling or evaluation” of consumers for employment. That means that these types of sites are essentially background checking firms, with all of the same legal duties and obligations of any other background firm. Therefore, such sites need to have full FCRA compliance, including client certifications under FCRA section 604 as well as adverse action notices and numerous other obligations, such as re-investigation upon request. Background checking is subject to heavy legal regulation.
- Another issue is authenticity. Under FCRA section 607(b), a Consumer Reporting Agency needs to exercise “reasonable procedures to assure maximum possible accuracy.” The issue of course is how to know what is real or authentic before reporting it to an employer. If a social site contains something negative, how is the firm that supplies the information to go about verifying that it is accurate, authentic, and belongs to the applicant. If the search should happen to turn up a criminal record, then the obligations are even heavier. A CRA must either give notice to the applicant at the same time it notifies the employer that a criminal record is being reported or it must confirm the information is complete and up to date, which typically means going to the courthouse. In California, state law does not even allow he notice option.
- There is also the possibility that some of the information obtained from a social networking may meet the definition of a special kind of background report called an “Investigative Consumer Report (ICR).” If so, there are additional special rules if matters that are likely to adversely impact employment, such as revivifying the information from another source or ensuring the information came from the best possible source.
- Another big challenge for these types of web sites is discrimination allegations. Employers or recruiters may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by an online search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information or TMI.
The problem is that once an employer recruiter is aware that an individual is a member of a protected group, it is difficult to claim that they can “un-ring the bell” and forget he or she ever saw it. Employers may be exposed to “failure to hire” law suits based upon discrimination or Equal Employment Opportunity Commission (EEOC) claims.
Another issue is legal off-duty conduct. A number of states protect workers engaged in legal off-duty conduct. If such a search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination
These concerns are just the tip of the iceberg. Employers need to be very careful when it comes to harvesting such information from the internet. How and when an employer obtains such information is critical. For example, employers may have increased protection if such searches are done after there has been a conditional offer, and consent has been given. Legality may also depend on whether the employer has well written job description with the essential functions of the job defined, so that information used from such searches can be justified. Another issue is whether employers engage in any sort of objective analysis using metrics.
The bottom line: Before using the internet to screen candidates, or using third party services, see your labor attorney.
To read a related article on social network background checks, ‘The Rush to Source Candidates from Internet and Social Networking Sites,’ visit: http://www.esrcheck.com/wordpress/2009/08/01/the-rush-to-source-candidates-from-internet-and-social-networking-sites-2/.
For more articles on social network background checks, visit: http://www.esrcheck.com/wordpress/tag/social-networking-sites/page/2
For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.
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.