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August 2005 Vol. 5, No. 8
Employment Screening Resources (ESR) Newsletter and Legal Update
Newspaper articles from across the country underscore, each month, the dangers faced when employers fail to exercise due diligence in hiring. Here are just two recent examples:
July 16, 2005-Orange County, CAâ€”A convicted and registered child sex offender was arrested at the Orange County Fair in Southern California, working for a carnival firm. The offender was on probation with a condition that he is not allowed in areas that attract children. He was recognized by a probation officer who was patrolling the fair. The sex offender was hired through a temporary agency that did not check the Meganâ€™s Law database.
May 11, 2005â€”A convicted murderer who was recently paroled was hired to work as a janitor in a nursing home in Peoria, Illinois according to the Illinois Department of Public Health. According to a news article, the employee was released from prison last year after serving 12 years of a 28-year sentence. He was arrested at the nursing home while attempting to retrieve a package that was addressed to a patient and contained crack cocaine. There was no indication that a background check had been done.
These news reports underscore that employers that hire blind without exercising due diligence are playing Russian Roulette with their firmâ€™s futures.
On August 14, 2005, a new Pennsylvania law went into effect that gives employers greater protection when responding to requests for employment reference checks. A similar measure went into effect in the state of Washington earlier this year. The purpose of these statutes is to encourage employers to share information by protecting them from lawsuits for defamation. According to an ESR survey, there are now 40 states that afford some degree of protection to employers.
The states with immunity statutes give employers varying degrees of protection. For example, the new Pennsylvania law creates a presumption that an employer is acting in good faith when giving information about a past employee when asked for it by a new employer or worker. In order to overcome that presumption, a plaintiff much show by clear and convincing evidence that the employer either knew, or should have known, the reference information was false, or was materially misleading. A plaintiff can also show that the employer gave the information with a reckless disregard of the truth, or the disclosure was in violation of a contract or some other state law.
The Washington law effective July 24, 2005, goes further and requires that an employer keep a record of the person or entity to which information is disclosed for a minimum of two years from the date of disclosure and allow an employee to inspect it. The Washington law also specifies that an employer is only presumed to be acting in good faith when the information pertains to the following:
(a) The employee’s ability to perform his or her job;
(b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or
(c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.
Not all states require a showing by clear and convincing evidence. For example, California Civil Code section 47c provides protection when another employer makes a request for past employment information, but the presumption is overcome by a simple preponderance of the evidence which is an easier standard for a plaintiff to meet. California did add language that authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee.
Because various states approach this issue in different ways, employers should be aware of the law for their states and should seek legal advice if they have questions. Even with immunity statutes in 40 states, there are still potential issues when providing any information beyond dates of employment and job title.
For additional information about each individual stateâ€™s immunity, contact ESR at 415-898-0044 Ext. 240. ESR clients may obtain a copy of the ESR survey of all 40 states providing immunity by contacting Jared Callahan at [email protected]
An article by ESR President Lester Rosen in the July 2005 edition of the Security Technology and Design magazine discussed the issues involved with national criminal database file checks. The article, entitled, Criminal Databases & Pre-Employment Screening: The Good, the Bad, and the Ugly discussed the use of national criminal database files to supplement county court searches. The national databases are not a true FBI search but are a compilation of millions of criminal records from various sources, such as state repositories, county courts and correctional authorities.
The article reviews that criminal records database searches are valuable because they cover a much larger geographical area than traditional searches, which are run at the county level.. Since there are more than 3,200 jurisdictions in America, not all courts can be checked on-site.
However, multi-state databases are not nearly as accurate as county-level searches. The data comes from a variety of different sources, and there are issues as to completeness, accuracy and timeliness. A database search can be described as a mile wide but an inch deep, where a county-level search is a mile deep but an inch wide.
The article concludes that multi-state databases, although a valuable tool, represent a research or secondary tool only. They can act as good lead generators to tell a researcher where else to look. A database should supplement and not replace other safe hiring tools, such as on-site court searches of relevant counties, and the application, interview and past employment checking process.
The article can be found at: http://www.esrcheck.com/articles/Criminal_Databases.php
For information on running a multi-state database search to supplement county court searches, contact Jared Callahan at 415-898-0044, ext. 240 or by e-mail at: [email protected]
- Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, staring in the San Francisco Bay Area and continuing throughout the US.
- ESR wrote the book on background checks! â€“ The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.
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
November 10, 2005 ESR SPONSORED SEMINAR Pleasanton/Dublin, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.
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 11, 2005 ESR SPONSORED SEMINAR San Jose/Santa Clara, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.
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 Exhibition, Monday, September 12, 2005 at 1:30 PM. www.asisonline.org/
September 8, 2005 ESR SPONSORED SEMINAR Santa Clara, CA – Biltmore Hotel & Suites “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.
September 6, 2005–Tucson, AZ â€œHuman Resources, Terrorism & the Patriot Actâ€. See: 2005 Arizona SHRM State Conference
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945