This newsletter is sent to clients of Employment Screening Resources (ESR) and employers, HR and Security professionals and law firms who
have requested information from ESR on pre-employment
screening, safe hiring, the FCRA and legal compliance. If this was
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June 2003 Vol. 3, No.6
1. Employers Sued for Improper Questions on Application Concerning Criminal Information
Employers Sued for Improper Questions on Application Concerning Criminal
A class action suit against over
100 California employers in April, 2003, demonstrates the importance of paying
close attention to language concerning past criminal behavior in an employment
The legal action alleges that employers violated
California Labor Code Sections 432.7 and 432.8 by asking illegal questions. These sections prohibit an employer from
asking an applicant to disclose, either in writing or orally, information
concerning any arrest or detention that did not result in a conviction,
participation in a diversion program or certain minor marijuana related
offenses over two-years old.
ESR has long advised employers to carefully review their
application forms to ensure that the questions are not either too narrow or too
broad. Applications that only ask about
felony convictions are too narrow, since in many states a misdemeanor
conviction can be very serious. Conversely, applications that ask about any criminal matter can be too broad by inquiring into matters that
are prohibited in many states, such as an arrest not resulting in a conviction.
For detailed information on
application forms, including how applications are a critical safe hiring tool,
a sample application form and suggested language to be used in an application,
visit the ESR Knowledge Base at http://www.esrcheck.com/articles/index.php#6
2. Spanish Language Forms Mandated by
Forms in Spanish for use in the
hiring process have been mandated in California as part of the sweeping changes
in background checks that occurred in 2002. According to the California
Investigative Consumer Reporting Agencies Act, a consumer in California must be
given a statement of their rights in both English and Spanish when they
ask an employer for either a copy of their background report, or the ability to
view the background firm’s physical location. (California Civil Code
ESR has all necessary background screening forms in Spanish,
including the legally required consent and disclosure notice under both federal
law and California law.
These laws underscore the fact that employers hiring in
California must be in compliance with a large number of special “only in
California” provisions. Failure to
be in compliance with California laws can potentially expose employers to
liability. Forms that are used in the
other 49 states are useless in California. In addition, California has some of
the most restrictive and technical rules in the US when it comes to locating
and utilizing criminal records.
As outlined in a previous ESR newsletter, ESR has played a substantial part in amending
California laws concerning safe hiring and pre-employment screening. For
more information about compliance with California’s unique rules, see: Only in California: The Strange Saga of AB 655–Critical New Rules
Affecting Safe Hiring in California (Available at www.ESRcheck.com )
Employers may also contact Jared Callahan at
415-898-0044, ext 240 or by e-mail at [email protected]. If there is any
question about forms or procedures being used, ESR can perform
a compliance check-up.
Hiring Exposure Extends to Independent Contractors
employers are aware that they have a duty to exercise due diligence in hiring
employees. Recent multi-million dollar
jury verdicts across the US have confirmed that an employer has a duty to
exercise reasonable care in hiring, and that an employer can be held liable for
negligent hiring if they hire someone that they either knew or should have
known was dangerous or unfit for a particular job.
due diligence can also extend to firms that hire independent contractors as
well. For example, in the case of Chevron
USA, Inc. et. al v Superior Court (Kern County), 4 Cal.App4th 544 (1992),
the court ruled that a firm could be held accountable for injuries caused by an
independent contractor, if the firm failed to exercise due care in selecting
the contractor. The fact the injury was
caused by an independent contractor instead of an employee does not change the
fact that a business has a duty of care to others.
underscores that businesses must exercise due diligence in hiring both
employees and independent contractors. Many businesses hire a score of independent contractors or vendors
to either perform jobs on their premises or to carry out the firm’s work. The critical lesson is that employers also
have a duty of care when they retain the services of independent contractors,
and can be held responsible for negligent hiring. ESR can assist in screening individuals employed
as independent contractors, or who are employed by a business’s vendors.
4. ESR to Present Workshops Throughout the
US in 2003
will be presenting seminars on pre-employment screening, due diligence, the
Fair Credit Reporting Act and other topics relating to safe hiring across the
US. Here are some of the future dates.
November 10, 2003- Tampa, FL-National Convention of Background Screening
Firms-“Legal Update–What Every Background Firm Needs To Know
About the FCRA and Laws Effecting Pre-Employment Screening.” (For
background firm and record retrievers only). Details to be announced.
October 10, 2003-Dallas-Ft. Worth, TX-“The FCRA: Avoiding the
Traps” Presented at the HR Southwest Annual Conference. See http://www.hrsouthwest.com
September 30, 2003–Oakland, CA– “Safe Hiring
Audit-Implementing and Measuring Due Diligence in Your Hiring.” Northern California Human Resources Association (NCHRA) Annual Conference.
September 18, 2003–Los Angeles, CA–“Safe Hiring
Audit-Implementing and Measuring Due Diligence.” 2003
Professionals in Human Resources Association (PIHRA) Annual Conference.
August/September, 2003—“Pre-employment Screening and Safe
Hiring.” Full -day seminars on safe hiring and due
diligence by ESR in conjunction with Lorman Educational
Services at five locations in California: 8/22 San Diego;
8/27 Santa Barbara; 9/5 San Francisco; 9/23 Sacramento and 9/26 Stockton. Contact ESR for
July 29 and 31,
2003–“The How To of Background Screening.” (Pasadena, CA at the Pasadena Hilton on July 29 and Orange
County, CA at the Double Tree hotel in Orange on July 31). Sponsored by
the Professionals in Human Resources Association (PIHRA), as
part of the Part of the Practicum Series-How to Be A More Effective HR
Practitioner. See www.PIHRA.org
July 23, 2003-Buffalo, NY--“Crimes, Criminals and Human
Resources.” New York State SHRM HR Conference at the
Buffalo Convention Center. See www.nysshrm.org.
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. Click for
June 12, 2003-Sacramento, CA– “Background Checks and
Reference Checking: A Catch-22 for Employers.” Sponsored
by the NCHRA (www.NCHRA.org) Sheraton Grand, Sacramento, 9-12.
Please feel free to
contact Jared Callahan at ESR at 415-898-0044
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.
Screening Resources (ESR)
Grant Avenue, Suite 7
Novato, CA 94945