This newsletter and legal update is sent to clients of Employment
Screening Resources (ESR) as well as employers, HR and Security
professionals and law firms who may have a need for information on
pre-employment screening, safe hiring, the FCRA and legal compliance. If
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July 2003 Vol. 3, No. 7
Screening Resources (ESR) Newsletter and Legal Update
1. FCRA Changes Moving Through Congress
FCRA Changes Moving Through Congress
As reported in previous editions
of the ESR Newsletter, Congress is taking up crucial issues this year
concerning the federal Fair Credit Reporting Act (FCRA). The first critical issue deals with the
investigation of current employees. Under an interpretation of the FCRA issued by the Federal Trade
Commission in the “Vail” letter, the FTC indicated that the full FCRA notice
and disclosure rules that apply to pre-employment screening must also be
followed when it comes to any investigation of current employees for
misconduct. This has been criticized by
Human Resources, Legal and Security experts as crippling investigations of
sexual harassment claims, as well as investigations of misconduct, such as
theft or threatened workplace violence. Legislation has been introduced by
Texas Congressman Pete Session to exempt third party investigations of current
employees from the FCRA. The bill is H.
The second critical FCRA issue
deals with the expiration in 2004 of sections of the FCRA that preempts states
from passing laws that conflict with certain portions of the FCRA. These provisions require one uniform
credit system governed by the federal law rather than a hodge-podge of
different laws, varying from state to state.H.R. 2622 has been introduced in the House of Representatives
to “re-authorize” the FCRA in 2004 so that there is one national standard under
the FCRA. It also contains provisions similar to the Sessions bill that
overrules the “Vail” letter.
ESR will continue to follow and
report on the progress of these important laws.
2. New York
Changes Access and Fees for Criminal Records
Employers attempting to perform criminal background checks on applicants
from the state of New York face new procedures effective July 14, 2004. A new law in New York requires the NY Office
of Court Administration (OCA) to no longer provide single county searches in
the 13 New York City area counties, but to instead provide a statewide court
One of the immediate impacts on employers is that New York
City area courts will now charge a court fee of $52 for a statewide
search. That replaces the previous
court fee of $16 per court. For courts that are not in the New York City
area, it is unclear whether they will be allowed to provide criminal records to
employers, or if all background checks can only be done with the new and more
expensive statewide system.
For employers who only need one New York City area court
searched, this new procedure may add to the cost of pre-employment
screening. However, employers that
search two or more New York City area jurisdictions are not only ahead, but
receive a statewide search that provides much more protection.
However, for counties outside of the New York City
area, it is not yet clear whether the statewide searches will be as complete as
the old searches, in terms of the time periods covered and the inclusion of
misdemeanors for all counties. It is also not clear if the court clerks
in the courts outside of New York will continue to provide records, or if all
New York searches must go through the new system.
Until these issues are resolved, employers need to be aware
that New York criminal background checks have inherent problems. However,
employers have a legal duty to exercise due diligence, and therefore should
proceed with the new searches in New York in order to satisfy their legal due
“Only in California” Rules and Spanish Language Forms Revisited
An article in our June, 2003
newsletter about Spanish language forms sparked some additional questions. Under both federal and California law, a
consumer must authorize a background check and be given various
disclosures. If an applicant only
speaks Spanish, then the forms must presumably be in Spanish in order to fully
protect an applicant’s legal rights.
In addition, a special burden has
been placed by the California legislature on background screening firms. According to the California Investigative
Consumer Reporting Agencies Act, as amended in 2002, when a California consumer
asks a background firm for either a copy of their report, or to view the
background firm’s files, the background firm must provide a notice to the
consumer in both English and Spanish. (California Civil Code Section 1786.29(b)).
ESR has all necessary background screening forms in Spanish.
The special California requirements underscore the fact
that when it comes to pre-employment screening, there are a number of “only in California” provisions. Forms and procedures 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 previous ESR newsletters, ESR has
played a substantial part in amending California laws concerning safe hiring
and pre-employment screening. If there
is any question about forms or procedures being used, ESR can perform a compliance check-up.
Employers may contact Jared Callahan at 415-898-0044, ext. 240 or by e-mail at [email protected].
4. Safe Hiring Training Video Available for
A new professionally produced training video on safe hiring
is now available for employers. The
23-minute video is produced by Kantola Productions, a leading national provider
of cost-effective and high quality training videos for the business community.
The video follows the fictional story of a company that makes a bad hire and
discovers the steps they need to put in place to ensure it doesn’t happen
again. The narrator is ESR President Les Rosen, an attorney and Certified
Specialist in Criminal Law. As the story unfolds, the video
demonstrates the details of an effective safe hiring process, and sheds light
on the legal background that employers need to know.
Viewers will learn:
- What to look for on application
forms, and why it’s a bad idea to rely on resumes alone.
- Five powerful interview
questions that will discourage applicants who have something they’re
planning to hide.
- Why you need to check references
every time–even when you can’t get many details from former employers.
- What kinds of background checks
you should consider, and how to stay within legal guidelines if you make
- How to keep the costs of safe
hiring practices low, and what things you can do yourself with very little
added time or effort.
More information is
available at: http://www.esrcheck.com/safe_hiring_video.php
opportunities where ESR is participating includes:
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 HRSouthwest 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. (See www.NCHRA.org)
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 23, 2003-Buffalo, NY--“Crimes, Criminals and Human
Resources.” New York State SHRM HR Conference at the
Buffalo Convention Center. See www.nysshrm.org.
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 but only for purposes of general
Screening Resources (ESR)
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