This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the â€œremove” feature at the end of the newsletter.
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March 2005 Vol. 5, No. 3
Employment Screening Resources (ESR) Newsletter and Legal Update
A series of recent news articles concerning the theft of consumer data from database companies has raised serious issues concerning the privacy of consumer data. According to news accounts, ChoicePoint, a major national data firm, was the target of criminal intruders who obtained information on more the 170,000 Americans with at least 750 cases of stolen identity. LexisNexis, which owns another large database company, recently announced that intruders had obtained files on 32,000 Americans. Adding to the situation was the revelation that Bank of America lost digital tapes containing the credit card account records of 1.2 million federal employees, including 60 U.S. senators. The situation has resulted in hearings before the United States Senate.
It appears that these thefts, however, were not related to pre-employment background screening. The thefts were apparently from the divisions that supplied data without consent. When employers request information on a prospective applicant, the request is controlled by the federal Fair Credit Reporting Act (FCRA), which is widely considered the gold standard of consumer privacy protection. An applicant must specifically consent and receive a disclosure of their rights. The process is subject to intense legal regulation.
ESR values consumer privacy and protection of confidential consumer data, and therefore takes all measures to protect and safeguard data. For an employer to utilize itâ€™s pre-employment screening services, ESR goes through a “know your client” procedure in accordance with FCRA section 607(a) in order to establish that the client is a legitimate business with a permissible purpose for the background data. In addition, ESR does not research or supply a social security number. The ESR social trace service requires the employer to submit the applicant’s social security number, and ESR will provide certain information about a provided SSN only. ESR also operates under state of the art encryption and Internet security.
In addition, ESR is a member of the Better Business Bureau (BBB) Online Privacy Program.
A current hot issue in the news is efforts to utilize governmental databases to screen safety sensitive positions. However, studies demonstrate that relying upon governmental criminal databases can be dangerous.
According to a news story in the October 2, 2004 Dallas Morning News, the statewide criminal databases maintained by the Texas Department of Public Safety (www.txdps.state.tx.us) is utilized over three million times a year by public agencies and individuals. However, the state has only 69 percent of the complete criminal histories records for 2002. In 2001, the state had only 60 percent. Hundreds of thousands of records are missing. The article concludes that according to law enforcement officials, the public is at risk.
According to the article, “The problem is particularly acute in Dallas County, which has one of the worst records of reporting criminal convictions among metropolitan areas. In 2002, less than half the convictions in Dallas County made it into the state database. The year before, it was one out of every five.”
One District Attorney in Texas stated, “Anyone who depends on the state database for a full and accurate check is foolish.”
The news story also concluded that as bad as the situation in Texas appears, it is better than in many states because the “FBI estimates that slightly fewer than half of convictions make it into a national database.”
See the Dallas Morning News web site at: http://www.dallasnews.com/
Employee lawsuits often catch employers by surprise. Yet, an examination of the employee’s application shows that an employer could often have predicted, well in advance, that they were hiring a lawsuit just waiting to happen.
By looking for the following ten (10) danger signals, an employer can avoid hiring a problem in the first place.
- Applicant does not sign application. An applicant with something to hide may purposely not sign the application form so they later cannot be accused of falsification.
- Applicant does not sign consent for background screening. When a firm uses an outside agency to perform screening, federal law requires a separate disclosure and consent. A background consent form protects employers in two ways: It discourages applicants with something to hide and encourages candid interviews. If a firm does not perform some sort of screening, they become the employer of choice for problem applicants. If a candidate fails to sign the consent, that is not a good sign.
- Applicant leaves criminal questions blank. An applicant with a past problem may simply skip the questions about criminal records. Every employment application should ask, in the broadest possible terms allowed by law, if the applicant has a criminal record. Most jurisdictions only permit questions about convictions and pending cases. Employers make a big mistake if they only ask about felonies since misdemeanors can be extremely serious. Although employment may not be denied automatically because of a criminal conviction, an employer may consider the nature and gravity of the offense, the nature of the job and the age of the offense in evaluating whether there is a sound business reason not to employ someone with a criminal record. If an applicant lies about a criminal record however, the false application may be the reason to deny employment.
- Applicant self-reports a criminal violation. Just because an applicant self-reports an offense does not eliminate the possibility of other offences, or that it was reported it in a misleading way to lessen its seriousness. An employer is well-advised to check it out.
- Applicant fails to explain gaps in employment history. It is critical to look for unexplained employment gaps. There can be many reasons for a gap in employment. However, if an applicant cannot account for the past seven to ten years, that can be a red flag. It is also important to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.
- Applicant fails to give sufficient information to identify a past employer for reference checks. If an applicant does not give enough details about past employers, that can be a sign of trouble. Verifying past employment is a critical and important tool for safe hiring. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even if a reference check only reveals dates of employment and job titles, this critical information eliminates employment gaps. In addition, documenting the fact that an effort was made will demonstrate due diligence.
- Applicant fails to explain reason left past jobs. Past job performance can be an important predictor of future success.
- Explanations for employment gaps or reasons for leaving past jobs do not make sense. A careful review of this section is needed and anything that does not make sense must to be cleared up in the interview.
- Excessive cross-outs and changes. Can be an indication that an applicant is making it up as they go.
- Applicant failed to indicate or cannot recall the name of a former supervisor. Another red flag. Past supervisors are important in order to conduct past employment checks.
These danger signs assume employers are using an application form. Some employers put their firms at risk by just using resumes. However, using an employment application is considered a best practice. Resumes are not always complete or clear. Applications ensure uniformity and all needed information is obtained. It also protects employers from having impermissible information a resume may contain, and provides employers with a place for applicants to sign necessary statements that are part of the hiring process.
- ESR is pleased to announce the publication of the first definitive book on pre-employment screening and safe hiring. The book, The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace, is by ESR President Lester S. Rosen. The 512 pages cover pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.
- See the new ESR free Interview Generator tool for employers. It is available at https://www.esrcheck.com/Interviewgenerator.php The Interview Generator helps employers to create customized question sets that can be printed out and used during an interview. An employer can also create sets of questions for each position, choosing from general sample questions listed or generating their own questions. Each interview set can be saved in WORD and can be customized by each employer. Using a “structured interview” helps employers ask permissible questions in a consistent fashion for all applicants for a particular position. An employer should only choose those questions that are valid predictors of job performance for a particular position.
ESR will be participating in the following seminars across the United States.
November 13, 2005 –Tampa, FL National Conference of Background Screening Firms- “Legal Update– What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening.” (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm
October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours
September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.
September 12, 2005 –Orlando, FL “Pre-Employment Background Screening–How to Keep Criminals, Terrorists and Imposters Out of Your Workplace” ASIS International 51st Annual Seminar and Exhibits, Monday, September 12, 2005 at 1:30 PM.
June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire.“ Additional information to be posted on ESRcheck.com
April 25, 2005–Little Rock, AR “Background Screening and Higher Education: Special Issues involving Background Screening and Due Diligence in the Educational Environment.” Annual Conference for the Southwest Region for the College and University Professional Association for Human Resources (CUPA-HR). CUPA HR
April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition (EMA website).
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945