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 email@example.com.
By Thomas Ahearn, ESR News Blog Writer
According to a recent article in the NY Times, the German government has proposed placing restrictions on employers who wish to view the profiles of job applicants on wildly popular social networking sites such as Facebook when recruiting.
The Times reports that the proposal to limit the use of Facebook for recruiting – part of a proposed law governing workplace privacy – would allow recruiters to search publicly accessible information about applicants on the Web and view applicant pages on job sites such like LinkedIn but not search on “purely” social networking sites like Facebook.
The German bill limiting the use of Facebook – which claims over 500 million users worldwide and about 10 million in Germany – could pass this year, the Times reports.
A law like the one proposed in Germany blocking employers from checking the social profiles of job applicants on Facebook would mean big changes in America, since recruiters routinely use social-networking sites to find out more about applicants. A 2009 survey from job networking site CareerBuilder.com found 45 percent of employers used social networking sites to research candidates and 35 percent rejected applicants based on what was uncovered.
Of the 35 percent of employers who found content causing them not to hire the candidate:
- 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
However, social networks should not be seen by employers as some sort of “cheap-and-easy” background check, according to Les Rosen, President of Employment Screening Resources (ESR), a leading provider of background checks for employers and recruiters.
“Employers and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as Facebook and LinkedIn,” says Rosen, a frequent speaker on employment screening issues and the author of “The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters and Terrorists out of the Workplace,” the first comprehensive guide on employment screening for employers. “However, the use of these social media sites can present legal risks, including privacy and discrimination issues. We show employers how to avoid these legal landmines.”
ESR will present a webinar featuring Rosen to educate employers and recruiters on the proper use of popular social media such as Facebook and LinkedIn during background checks. The webinar – “Avoiding Legal Landmines when Using Facebook, LinkedIn, and Other Social Media Websites for Screening Candidates” – will be presented on Thursday, August 26, 2010 from 2:00pm to 3:30pm ET (11:00am to 12:30pm PT). For more information, visit: http://www.esrcheck.com/ESR_Speaks/Background-Screening-Checks-and-Facebook-and-MySpaceLegal-Limitations-and-Issues-63/.
Questions that will be answered in this informative and educational webinar include:
- Why do major employers, human resources, and recruiters use search engines and social network sites to screen candidates?
- What are the risks in using these social network sites?
- Isn’t everything on the web fair game since privacy is waived once someone places something on the Internet?
- How do discrimination laws and rules concerning off-duty conduct apply?
- What are the best practices for employers when using social network sites?
By Lester Rosen, ESR President
A new free online tool allows employers to easily create custom interview guides with an interview generator form.
One of the problems that face employers of all sizes is preparing for interviews. Most recruiters, human resources professionals and hiring managers are now familiar with the notion of a structured interview. Using a “structured interview” guide during applicant interviews helps employers ask permissible questions in a consistent fashion for all applicants for a position.
Of course, in addition to standard interview questions, employers need to add job specific questions that stem from the job description and the knowledge, skills and abilities required for a position, as well as the essential functions of the job. That is yet another reason why well written job description is so critical in the hiring process.
In order to assist employers in preparing structured interviews, Employment Screening Resources (ESR) has released the ESR Interview Guide Generator,Â a free web based interview generator to help employers build printed interview forms for any position. The wizard tool allows employers to select from generic interview questions, or to create their own questions, put the questions in the order they need and then create a printed form that can be saved or modified.
This free tool solves several issues for employers. It helps employers, recruiters and HR professionals produce a printed structured interview guide and focus on developing relevant questions for each position. Printed interview forms also help employers ensure that interviewers are asking the right questions every time, in the right way. Using a “structured interview” guide helps employers ask permissible questions in a consistent fashion for all applicants for a position. An employer should only choose those questions that are valid predictors of job performance for a particular position.
The tool allows employers to choose from standard interview questions, or to create their own questions. Questions are grouped into sections and are displayed on the completed form within these groups. An employer may customize however they want, including adding custom questions, or changing the sections that the chosen questions are placed.
Once the interview is built online, the Finish tab will display the interview form. When the employer is ready, they can click the print button on the Finish tab. The free tool does not save the form so it should be pasted onto a WORD document for future reference.
The sample questions listed are questions that appear in various public sources suggesting commonly used interview questions. By use of the “Custom Question” section at the end, an employer can create any questions they wish and put them into any section they wish. ESR offers no legal opinion whatsoever if any question is legal or appropriate. An employer should contact its attorney if there are any questions as to the legality of any interview question. This information is provided for educational purposes and general assistance only and is not offered or intended as legal advice.
By Lester Rosen, President of ESR
From the mailbag: I have heard the argument made that using business connections sites is more accurate than resumes and can even replace a past employment check, since a candidate is not as likely to lie on an online service where many friends and colleagues may see it.
Answer: Looking at business connection sites during the recruiting or selection stage can certainly be another tool for HR or recruiting to try to differentiate a large group of candidates and whittle it down to a smaller and more manageable group. Even then, there are significant issues to keep in mind, such as the potential for discrimination.
In terms of using such sites as a substitute for an application, background check or other tools to demonstrate due diligence, recruiters and employers may well be on thin ice.
First, if a person lies on a social networking site, there are no direct consequences. These sites do not independently verify any facts. The basic problem is that all of the qualifications are self-stated. Remember those bad home loans issued recently on the basis of â€œstated income, where a person just made up any income they needed? Some of these sites operate in a similar way.
These sites also do not contain a comment or feedback area where others can disagree, or warn employers that qualifications are overstated. Furthermore, if an applicant has listed a certificate or educational accomplishment that is not true, exactly how are colleagues suppose to knew that, much less bring it to anyone’s attention. A colleague may not even know that an applicant has lied.
Of course, if a person has legitimate recommendations, that can help somewhat. However, a determined con artist could well create a chain of other fake identities that can be used to verify the phony credentials. It may well take a determined recruiter or employer to notice the fraud or track it down. If such a fraud is even discovered, what is the mechanism to alert the business listing site of the fraud.
Employment Screenings Resources has done advanced searches using the names of known diploma mills that offer worthless degrees. It is shocking the number individuals on these business connection sites working for well recognized firms that openly advertise a worthless degree obtained from a degree mill as part of their qualifications. This in fact was demonstrated at a recent meeting on the topic of education fraud by the National Association of Professional Background Screeners (www.napbs.com).
Finally the suggestion without metrics that people do not lie or fabricate on a social network site because others will view it will not likely be much of a defense in court if a firm hires a fibber and it turns out a background check costing a few dollars would have revealed it.
The bottom-line once again: There is nothing as effective as actual verification of a candidate’s claimed experience.
For more information on the use of social network sites and employment, see: http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php
For more information on background checks in general, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com
By Lester Rosen, President of ESR
(Originally Published on HR.Toolbox.com)
It’s a sobering thought, but every time a recruiting professional makes a placement, there is the possibility that new hire can put them out of business.
Why? Because if a dangerous, unqualified, unfit, or dishonest candidate is placed in a job and harm occurs, the hiring firm risks a lawsuit for negligent hiring. Perhaps just as importantly, a bad placement can result in loss of business and damage to a professional reputation that may have been years in the making.
The root of the problem, of course, is that some candidates lie on their resumes and applications. Industry statistics suggest that up to 10% of applicants can have criminal records. Fraudulent misrepresentations as to education and employment occur in as much as 40% of the time, according to some studies.
Individual recruiters can, in fact, be sued for negligence if harm occurs, and if she or he knew or should have reasonably foreseen that a bad placement could cause a problem. At that point, the heart of the staffing professional may sink when those dreaded words echo across the courtroom: “Ladies and Gentleman of the Jury.”
Those are words you never want to hear, and a situation in which you never want to be. Your protection and your best defense is to exercise “due diligence,” which means to verify the representations and qualifications of the candidate.
The allegation in a “Negligent Hiring” lawsuit (or “Bad Hire” lawsuit) would be that the staffing professional placed someone that they either knew or, in the exercise of reasonable care, should have known was unfit or dangerous. Of course, since a staffing professional would not intentionally place someone who was dangerous or unfit, the question before the judge or jury is whether the staffing professional reasonably should have known that the placement was bad if they had only exercised a greater degree of care in screening the applicant.
In such a lawsuit, a staffing professional would need to show, for example, whether credentials and education were verified, whether past employment was checked, and whether a criminal background check was done.
Lawsuits occur usually in cases where there is some sort of serious harm either to a business, such as embezzlement, or theft, or to an individual, such as assault, rape, child molestation, identity theft, or even homicide.
A staffing professional who is responsible for a bad placement can be sued by a number of parties, including the business entity that relied upon the professional judgment of the recruiter or staffing firm. Certainly, a co-worker or member of the public who was injured by the bad hire can sue for damages.
The worst case scenario would be that the bad hire resulted in the death of a fellow worker, and the victim’s family is suing for wrongful death. This is just what happened in a highly publicized case in California. A 28-year-old female winery worker was stabbed to death by a co-worker who was a convicted murderer and had been placed at the winery by a temp agency. The agency did NOT conduct a background check. The jury awarded the family $5.5 million.
If a recruiter is sued, it may well be an uphill battle to win in court. The jury will hear evidence that the recruiter recruited, recommended, or placed the offender. In most cases, the staffing professional probably makes representations about the quality of their services. The staffing professional’s website and sales literature may suggest that they provide only the best candidates who are carefully screened. However, in the world of recruiting, “screening” really only means that resumes have been reviewed to determine a good fit as opposed to “background screening” for criminal records and verification of facts represented on the resume.
The employer, hoping to lay the blame onto someone else, will of course claim that they relied upon the professional abilities of the staffing professional to send them qualified and safe candidates. There would likely be evidence that the recruiting or staffing firm made a fee on the placement. In the end, the attorney for the injured or deceased employee would ask jury members, “Didn’t the staffing professional have not only the resources and opportunity, but also the duty to conduct employee screening on the potential employee before approving their introduction into the workplace?”
In this scenario, it is not likely that the jury members will have much sympathy for the hiring firm or staffing professional.
Some recruiting professionals have resisted the idea of background checks because they feel that with their years of experience, they are good judges of people. That is no longer a defensible position, nor is it even accurate. A growing body of scientific evidence suggests that even the most experienced recruiters cannot eliminate potential bad hires by detecting lies and evasions at the interview. Studies show that even though people believe they can detect liars, most people have only a 50-50 chance at best of detecting a liar. According to one recent study, even trained law enforcement officers are only right a little over half the time. The traditional means of reading body language, for instance, to screen out liars are useless against an accomplished con artist who can tell stories very convincingly.
Some recruiters may be concerned that background checks add to the cost of their services or hinder placement with unneeded delays while screening results are obtained. However, in today’s litigious world, recruiters and staffing professionals need to make a risk-management assessment: Is saving a few dollars and a little time worth playing Russian Roulette with each candidate you send out? Which one of these candidates will land you in court, or on the front page of the newspaper? Will your professional reputation be tarnished forever, perhaps beyond repair?
The bottom line is that due diligence and background checks go to the very integrity of the product being sold by recruiting and staffing professionals — workers who are qualified and fit for the job. Selling staffing services without knowing who you are sending to a client’s business would be like selling medicine with no idea of what is in the bottle.
Staffing and Search professionals have traditionally focused on Sourcing and Sales. It is worth noting that at some recruiting conferences, there are a large number of sessions devoted to making money through finding candidates and selling services. However, there are few sessions, if any, on the subject of how to ensure the integrity of the very product being sold. Recruiting and staffing professionals can protect their own business, their clients, and the public by shifting their focus from just Sourcing and Sales to Sourcing, Verifying and Sales.
By Lester Rosen, President of ESR
(Originally published on HR.com)
Part of the on boarding process for most in-house recruiters is the completion of the pre-employment background check. The challenge for in-house recruiters is that they are typically under intense time pressure to complete the hiring process quickly and to get the new person started. On the other hand, it is mission critical that employers exercise due diligence in their hiring. If an employer hires someone who turns out to be dangerous, unfit or unqualified and some harm occurs where it was foreseeable that a bad hire could cause damage, then the firm can be on the hook for a negligent hiring lawsuit, not to mention all of the other costs, workplace problems and negative publicity associated with a bad hire. Of course, a bad hire does not reflect well on a recruiter either.
In a perfect world, a recruiter would like to be able to go to a web site that has an accurate and up-to-date database so the employer can get an immediate thumbs up or down. However, no such web site exists because much of the data needed to do a background check is not gathered and databased ahead of time. There is not even a comprehensive national criminal records database that reveals an accurate criminal history. Most private employers do not have access to the FBI criminal database, and even that database is subject to numerous sources of errors.
As a result, background checks are conducted by actually calling up schools and past employers and going to courthouses. A background check will typically take three days, and that is assuming the universe is cooperating and there are no delays out of anyone’s control. However, there can be delays if an employer has gone out of business or refuses to call back, or a school is closed for a holiday or requires a release or check sent by mail. Further delays can occur if there are potential criminal record matches, and the court clerk delays producing the file so a screening firm can confirm identifiers to determine if the record applies to the applicant and whether the case can even be reported under complex federal and state rules.
Those time requirements for a background check can conflict with the time pressure a recruiter is under. The good news is that a recruiter can be pro-active in speeding up background checks in several ways:
- Recruiters must understand the process can be delayed if screening firms are sent incomplete information, or supplied with forms that are illegible or incomplete. For example, screening firms often face difficulty in deciphering an applicant’s past employers or social security number. Since a screening firm is not expected to read hieroglyphics or be a mind reader, the screening firm has to contact the recruiter to clarify the information. Some screening firms will make their best guess and if they are wrong, the report is delayed even further, proving the old adage that no good deed goes unpunished. Recruiters who review all applications for completeness, legibility and accuracy with the candidates before sending the applications to a screening firm will find their work is completed much faster.
- An in-house recruiter needs to communicate with hiring managers to eliminate unrealistic expectations. A hiring manager may not understand, for example, that criminal records are searched at each relevant courthouse, or that delays can occur if there is a potential match and the court needs to bring files from storage. Hiring managers must also be advised that employment and education verifications can be delayed for a number of reasons, such as schools that are on vacation or that require a check or release to be mailed, or employers that are closed, merged or refuse to cooperate. If there is a delay in receiving a completed screening report, the recruiter should examine the source of the delay.
- If a recruiter is working with a screening firm that has an online ordering system, the process is considerably faster. Not only does this ensure accuracy, which makes the process faster, but it also avoids delays caused by sending a request to a screening firm and waiting for the firm to do manual data entry.
- Finally, there are times when a recruiter should determine that even though the screening firm has not been successful in obtaining all of the information, enough data is available to make a hiring decision. This typically happens in the area of verifying previous employment. When conducting employment verifications, often times the earliest employment is the most difficult to obtain. However, it may also be the least relevant. If the applicant, for example, worked in a fast food restaurant six years ago after getting out of school and the fast food place will not call back, then there may be no reason to delay the hiring decision, especially if the screening firm has obtained the most recent, and presumably more relevant, job verifications.
Experienced recruiters understand that background checks are not only a critical part of the hiring process, but are a great deal more complicated than merely putting a name in a database. A competent background checking process requires specialized knowledge, resources and experience. This is particularly true since employment screening is a highly regulated area. The best way to speed up the process is to understand exactly what is involved in facilitating the smooth flow of accurate data.
For more information on how background checks for recruiters, please visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.
By Lester S. Rosen, President of ESR
(First published on RecruitingTrends.com)
As the recession begins to slowly turn around, employers are naturally cautious about increasing the size of the workforce until it becomes clear that hiring additional full-time workers is justified. The solution traditionally has been to hire through staffing agencies so that an employer had flexibility to adjust to the ups and downs of the recovery.
However, the notion that just because workers are on someone else’s payroll that they are not a businesses’ responsibility or problem is simply not true.
It is clear, in fact, that when a business hires temporary workers, the business assumes much of the same liability as when workers are hired directly. Although staffing agencies still have duties to pay wages and handle such items as reporting to appropriate agencies and workers compensation insurance, there are a host of potential employment law liabilities that are still the responsibility of the employer.
An employer can still be sued for sexual harassment, or for having a hostile workplace, or for discrimination regardless of whether the worker gets paid by the company, or paid through a staffing firm. That is because the temporary worker is still under the control and direction of the workplace. This falls under the legal doctrine of co-employment, where both the staffing vendor and the business have duties and obligations.
For employers, the scope of their co-employment responsibility can even extend to liability for negligent hiring and negligent retention. The law is absolutely clear that if a temporary employee 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 payroll. Many employers have found out the hard way that unscreened or inadequately workers from a Professional Employer Organization (PEO) or staffing vendor can also cause damage. A business can be liable if, in the exercise of reasonable care, the business should have known that a temporary worker was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligenceÂ not only in whom they hire on payroll, but in whom they allow on premises to perform work.
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 every day when engaging the services of vendors and temporary workers.
Part of the problem is that the word “screening” is used differently by staffing vendors and employers. A staffing vendor will “screen” applicants to determine whether a candidate’s resume is a match for the job description. For employers concerned with due diligence, and risk-management, “screening” means having a background check performed to determine whether the person is safe and qualified.
Of course, in the event of a lawsuit where an employer is sued, the employer would likely turn around and blame the staffing vendor or PEO. However, the employer will still need to justify its own due diligence in how it selected and supervised the staffing vendor.
The PEO or staffing firm would likely blame the employer for failure to specify what was required. Although the eventual outcomes will depend upon specific facts, employers and staffing vendors can avoid these difficulties in the first place by clearly addressing who has what duties.
These are some of the issues that should be clarified when an employer and staffing vendor work together:
- Which party is going to perform the background check — the staffing vendor or the employer?
- What is the screening protocol to be used? Ideally, employers should require a staffing vendor to utilize the same criteria used for their own W-2 employees.
- What Background Screening firm will be used? The employer needs to ensure that the staffing vendor utilizes a background screening agency that is experienced and qualified for the assignment and follows best practices, such as not offshoring data, not using home based operators, and not substituting cheap database checks instead of real criminal searches.
- Whose responsibility is it to actually review the Background Screening report? There have been cases where staffing firms have found negative information but no one read the report or acted on it. The negative information typically comes to light when the employer decides to make the worker permanent, and performs its own background check, only to discover that a crime or resume fraud was missed or not acted upon.
- In the event derogatorily or negative information is found, how are decisions to be made? The use of automated pass/fail criteria by the staffing vendor are increasingly becoming a potential Equal Employment Opportunity Commission (EEOC) issue, since it can have the affect of discrimination against protected classes of applicants. Another solution is to send anything of a negative nature to the business for a final decision on whether they want that person on the premises. Some staffing vendors, however, take the position that since it is their employee, it is their decision. The critical point is to work out the protocol in advance.
- Do the consent and disclosure forms for background checks reflect the roles of the parties?Â Under the federal Fair Credit Reporting Act (FCRA), a business can request that the background release extend to the business so it can review the background report. However the background release must also clarify that the staffing vendor is the employer of record.
- Who is going to pay for the background checks?
- Who is going to send out the required adverse action notices or conduct a re-investigation?
The bottom-line: staffing vendors can avoid a great deal of difficulty if these issues are addressed and documented upfront so that everyone is clear on who has what responsibly when it comes to safe hiring.