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June 2005 Vol. 5, No. 6
Employment Screening Resources (ESR) Newsletter and Legal Update
A class action lawsuit recently filed in California underscores the importance of following specific state rules in hiring. For California employers, there are a number of â€œonly in Californiaâ€ rules.
The plaintiff in that case alleged that a pre-employment screening firm headquartered out of state failed to follow California procedures. California Civil Code section 1786.29 requires specific language be placed in 12 point type on the front page of all screening reports. According to the allegations in the lawsuit, the required language was not included.
Although this case is only in the beginning stages, and the facts are far from being determined, the allegations underscore the critical need for employers to understand any specific laws in their own state. For example, California laws require certain certifications by an employer to the background firm above and beyond those required by the federal Fair Credit Reporting Act (FCRA), as well as particular rights and information that must be incorporated into any disclosure or authorization for a screening report by a background firm. There are also a number of special California rules when it comes to the reporting and use of criminal records for employment purposes.
It should be noted that ESR played a role in drafting the language of Civil Code section 1786 when it was amended in 2002, and also testified in front of the California legislature on the topic. Further, ESR provides clients with a 50 state guide to applicable state laws. See the Public version of the 50 state guide here: 50 State Guide
The June 2005 edition of SHRMâ€™s HR Magazine quoted ESR president Les Rosen from his presentation at the 2005 EMA Convention in Dallas, Texas. This was the fourth straight year SHRM invited him to speak at the EMA convention.
Under the heading, â€œWords to the Wise,â€ Rosen was quoted as follows:
â€œHumans are not wired to detect a potentially bad hire merely by detecting lies in an interview,â€ said attorney Lester Rosen, who is president of Novato, California-based firm Employment Screening Resources. Thatâ€™s why it is critical for companies to conduct thorough background checks on every potential job candidate, he said.
â€œWhen asking about criminal convictions, use the broadest legal language for both felonies and misdemeanors,â€ said Rosen, adding that leaving out misdemeanors is a big mistake. â€œYou can also ask about pending cases.â€
â€œThere are several red flags screeners should look for, including unsigned applications and background consent forms, blank criminal questions or self-reporting of offenses. Also check for omitted information and excessive cross-outs and unusual answers, such as unexplained employment gaps.â€
More information about safe hiring is contained in the first comprehensive book published on background screening by Les Rosen, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace.â€ Click here for more information: SafeHiringManual
The following are the top four reasons to screen new applicants:
1. Deterrence of Potential Problems
Just having background screening can discourage applicants with something to hide. Making it clear that screening is part of the hiring process can deter potentially problematic applicants and discourage applicants with something to hide. An applicant with serious criminal convictions or falsified information on his or her resume is less likely to apply at a firm that announces pre-employment background checks are part of the hiring process.
2. Encourage Honesty
Many candidates who may have some blemish on their record may be well qualified for employment. However, employers need to be fully informed when making a hiring decision. Having a safe hiring program including background checks encourages applicants to be especially forthcoming in their interviews. Making it clear that background checks are part of the hiring process is strong motivation for applicants to reveal information about themselves they feel may be uncovered by a background check.
Although instincts play a role in hiring, basing a decision on hard information is even better. Effective screening obtains factual information about a candidate in order to supplement the impressions obtained from an interview. It is also a valuable tool for judging the accuracy of a candidateâ€™s resume since screening limits uncertainty in the hiring process.
4. Due Diligence
Implementing a Safe Hiring Program helps an employer practice due diligence in their hiring, and is a powerful defense in the event of a lawsuit.
- The Safe Hiring training video featuring ESR President Les Rosen has just been released in a DVD format. The 23 minute training tape, produced by nationally recognized Kantola Productions, follows the fictional story of a company that makes a bad hire and discovers the steps to put in place to ensure it doesn’t happen again. As the story unfolds, Les explains the details of an effective safe hiring process, and sheds light on the legal background that employers need to know. See:http://www.esrcheck.com/safe_hiring_video.php
- Employment Screening Resources (ESR), and Facts on Demand Press announced on April 8, 2005 the release of an updated and revised edition of “The Safe Hiring Manualâ€”The Complete Guide to Keeping Criminals, Terrorists and Imposters Out Of Your Workplace,” by Lester S. Rosen, president of ESRThe new version contains updated information stemming from amendments to the federal Fair Credit Reporting Act (FCRA) in 2003, as well as new information about international background checks, legal decisions affecting an employerâ€™s duty of due diligence, and new studies and statistics on the dangers of hiring without adequate pre-employment screening.
A comprehensive blueprint for developing a program to hire safe and qualified employees, “The Safe Hiring Manual” is written for employers, human resource departments, security professionals, staffing vendors, private investigators, and labor lawyers. The 512-page book details how to exercise due diligence throughout the hiring process, significantly increasing an employerâ€™s chance of avoiding the financial and legal nightmares of even one bad hiring decision. 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 http://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 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism” 2005 HR Southwest Human Resources Conference and Exposition.
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 29, 2005–Milwaukee, WI ” Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org
September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.
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. www.asisonline.org/
September 6, 2005–Tucson, AZ â€œHuman Resources, Terrorism & the Patriot Actâ€. See: 2005 Arizona SHRM State Conference
June 16, 2005 — Kennedy Information Audio Conference on “Background Checks and Recruiting — Avoiding the Disaster of a Bad Hire.“ For more information click www.kennedyinfo.com/audio/Rosen
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945