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have requested information from ESR on pre-employment screening,
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May 2003 Vol. 3, No.5

1. Congress to Review FCRA

2. NewCounty Courts Continue to Present Challenges

3. Keeping it Legal–Reference Questions

4. ESR to Present at Five Seminars with the California Association of Employers (CAE)

Congress to Review FCRA

On May 1, 2003, House Financial Services Committee Chairman Michael G.
Oxley (OH) and Committee Ranking Member Barney Frank (MA) jointly announced
their intention to hold a comprehensive series of hearings on continuing the
current national standards contained in the Fair Credit Reporting Act (FCRA). Under current law, states are prohibited from passing
their own rules on certain aspects of the FCRA until 2004. Although a number of
states have their own procedural rules on certain aspects of pre-employment
screening, the situation would become much worse if each state is allowed to
pass state laws that conflict with the FCRA across the board.

the April 2003 Newsletter, ESR reported that Congressman Pete Sessions
(R-Dallas) introduced H.R. 1543, the “Civil Rights and Employment Investigation
Clarification Act” of 2003. H.R. 1543
makes a clarification to the Fair Credit Reporting Act (FCRA) to allow
employers to use attorneys and licensed professionals to investigate current employees suspected of misconduct, wrongdoing or harassment, without obtaining
the employee’s prior authorization. Additional members of Congress have signed
on as co-sponsors, which will help the legislation move forward. ESR will continue to follow developments

2. County
Courts Continue to Present Challenges

Courthouses continue to present challenges across the United States for
employers who are concerned with safe hiring, due diligence and preventing
workplace violence. Los Angeles County continues to present issues for
employers. Although Los Angeles County
has rescinded a plan that called for the periodic closure of courthouses
in order to save money, the shortage of court clerks continues to impact the
ability of employers to obtain court record checks timely.

this year, Santa Clara County in California announced
a policy of restricting date of birth information, which would have lead to
substantial delays in obtaining records in that county. ESR was very
active in lobbying Santa Clara county officials to retract this policy, noting
that Santa Clara county already has one of the nation’s highest unemployment
rates, and obstructing background checks would only serve to hurt employers and
job seekers, and at the same time benefit applicants with criminal records. The
policy was changed so that employers will not be impacted.

courts across the
United States
have periodically raised barriers for employers seeking to obtain criminal
records. ESR remains proactive nationally in defending
public access to court records so that employers may exercise due diligence in

3. Keeping it
Legal–Reference Questions

Asking reference questions
carries a certain risk if the question is not legal. How can you tell if a reference question is

Generally, a legal reference
question will have the following characteristics:

1. It
is a valid predictor of job performance (i.e., job related)

2. It
is not discriminatory on its face (i.e., it does not violate federal or states’ discrimination rules by
inquiring into impermissible areas such as marital status, national origin,
religion, etc.)

3. It
is not discriminatory as applied (there are some pre-employment tools that
although neutral on their face, can have a discriminatory effect in the manner
in which they are used)

4. It
does not violate any specific state or federal law in terms of the subject
matter, procedure or any release that is required (such as FCRA rules)

Here is an easy rule of thumb: Do not ask any reference question that an
employer could not also ask an applicant in a face-to-face interview.

For more information on reference
checking and hiring, ESR will be presenting two workshops in
June on: “Background Checks and Reference Checking: A
Catch-22 for Employers.”
See the ESR Speaking schedule

If you have a question about reference
questions, please feel free to send them to [email protected] and
we will get right back to you to discuss your concern.

4. ESR to Present at Five Seminars with the
California Association of Employers (CAE)

ESR will participate in a series of five seminars
sponsored by the California Association of Employers (CAE) to
be held throughout the state of California. Locations will
include: May 13-Irvine Hyatt Regency; May 14-Emeryville
Four Points Sheraton
; May 15-Sacramento Holiday Inn; May
22-Fresno Ramada Inn University; May 29– Redding
Shasta Builders Exchange.
Contact the CAE for
further details at 916-921-1312 or see

The seminars will have two
sessions. Session One
is wage and hour law, provided by attorneys from the law firm of Seyfarth Shaw. Session Two will focus
on Hiring and Firing, with speakers Les Rosen from ESR and Kim Parker,
Executive VP for CAE.

The CAE is a
non-profit organization that has been assisting California employers since 1937
by providing personalized and cost-effective human resources and labor
retention benefits to members across California.

Additional ESR May/June/July Seminar information:

May 9, 2003–Oakland, CA-Conference on “Uniting Privacy
and the First Amendment in the 21st Century
.” ESR
President Les Rosen will participate in a panel discussion on the “Investigative
Uses of Personal Information,”
concerning the present legal and
regulatory schemes for controlling the use of personnel information for
investigative purposes. Sponsored by the California Office of
Privacy protection, Electronic Privacy Information Center and the First Amendment
Project. See  

June 3, 2003-San Francisco, CA- “Background
Checks and Reference Checking: A Catch-22 for Employers.”

Sponsored by the NCHRA ( NCHRA Training
Center, 9-12 AM

June 4, 2003–University of California at Riverside
Extension: Legal Issues in Human Resources series: “Safe
Hiring Practices Audit-
-Review of 28 steps and best
organizational practices that can be taken during the recruiting,
hiring, training and post-hiring stages to minimize any surprises concerning
the background of employees.”
Presented by Lester S. Rosen,
Esq., President of Employment Screening Resources, Contact UC

June 12, 2003-Sacramento, CA- “Background
Checks and Reference Checking: A Catch-22 for Employers.”

Sponsored by the NCHRA ( Sheraton Grand,
Sacramento, 9-12 AM

June 18, 2003–San Francisco, CA: “HR
Audit-Are You Up To Date?
” Sponsored by Lorman Educational Services
with Lester S. Rosen as moderator and speaker. Contact ESR for additional

July 23, 2003-Buffalo, NY--“Crimes,
Criminals and Human Resources.”
New York State SHRM HR
Conference at the Buffalo Convention Center. See

Please feel free to
contact Jared Callahan at ESR at 415-898-0044
Ext. 240, or [email protected] if
you have any questions or comments about the matters in this newsletter. Please
note that ESR’s statements about any legal matters are not
given or intended as legal advice.

Employment Screening Resources (ESR)

Grant Avenue, Suite 7

Novato, CA 94945


See: Employment Screening Resources (ESR) Rated Top
Background Screening Firm in First Independent Industry Study

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