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January 2006 Vol. 6, No. 1
Employment Screening Resources (ESR) Newsletter and Legal Update
In a widely publicized case, a jury verdict in favor of a terminated employee against Pacific Bell (now part of SBC) for $500,000 was upheld by a San Francisco federal appeals court that ruled the phone company should have re-instated the employee as a telephone installer, even though the employee did not reveal previous criminal matters on his application, including a charge of attempted murder resulting in nearly three years in a state mental hospital.
According to the case handed down December 27, 2005, plaintiff Joshua Josephs applied for a position with PacBell in late 1997. After working at PacBell for three months, PacBell received the results of a fingerprint check and discovered that the plaintiff had been charged with attempted murder in 1982. Further research showed he was found Not Guilty by Reason of Insanity and spent nearly three years in a state mental hospital. In addition, the plaintiff also failed to report a 1985 misdemeanor conviction for battery on a police officer. Both events occurred while using a different name, which the plaintiff also did not reveal.
The plaintiff filed a grievance asking for re-instatement. PacBell took the position that it was dangerous to hire a person with Josephs’ history because he may â€œgo offâ€ on a customer and it was inappropriate to have the plaintiff in a job where he went into peoplesâ€™ homes. PacBell was also unwilling to assign the Plaintiff to a job that did not involve contact with customer homes and did not want the plaintiff back in any capacity. In addition PacBell maintained that because he failed to reveal his true name and the battery charge, he also could not be re-instated.
The plaintiff brought the legal action on the basis that PacBell was discriminating against him in violation of the Americans with Disability Act (ADA) and similar California laws by not re-instating him due to a mental disability. He argued that PacBell regarded him as suffering a mental illness that could result in future acts of violence, even though he had recovered and could perform the job.
The jury heard evidence that:
- The victim of the attempted murder was a high school friend who was a quadriplegic (and according to press accounts, the plaintiff was delusional and pulled the respirator plug on his friend).
- The plaintiff had recovered from the mental illness.
- The plaintiff had successfully worked as a telephone technician for 10 years for another communications firm.
- According to his supervisor at PacBell, the plaintiff was performing well and would probably be an asset to the company.
- The plaintiff went back to court during his grievance procedure with PacBell and had his misdemeanor criminal record expunged.
- Other employees had been re-instated after they cleared up criminal matters they failed to disclose, including a felony domestic violence battery, so that the real reason for not re-instating Josephs was the mental disability.
- PacBell did not want to accommodate the plaintiff by putting him in a job that did not require him to go into peopleâ€™s homesâ€”they did not want to employ him in any capacity due to the history of mental illness.
The jury found that PacBell did not discriminate against the Plaintiff for the initial termination. However, the jury found that the reason for not re-instating was based upon his mental condition and that he was a victim of discrimination.
The court noted that PacBell did not introduce any evidence that it had a written company policy prohibiting employment of persons who have committed violent acts, and in fact, had rehired one employee who had failed to disclose a felony domestic violence battery conviction.
This is intended only as a brief summary of a complicated case with unusual facts and a dissenting opinion. Although the case did not appear to announce any new legal principles and it may be appealed, there are some valuable lessons for employers, including:
- Every employer needs to have a written policy in place concerning hiring of individuals with criminal records, particularly if the records are regarding violence, dishonesty or moral turpitude.
- In the event a person with a criminal record is hired or re-instated, the precise circumstances of that individualâ€™s situation and the reasons for the decision should be carefully documented, so in the future other applicants with criminal records cannot complain they were the victims of discrimination if they are not hired.
- An employer must clearly differentiate between adverse employment decisions based upon a criminal record and a decision based upon a mental disability. If the criminal record is the basis of the decision, then the employer must analyze the nature and gravity of the act, the nature of the job and the age of the offense. If the mental disability is the employerâ€™s concern, then it must consider the ADA implications in its decision, including whether the plaintiff could have performed the essential job functions and if there was a reasonable accommodation available.
For a copy of the case, please contact Jared Callahan at [email protected] or by phone at 415-898-0044. This summary is for information purposes only and is not intended as legal advice. For more information on this case, an employer should contact their legal counsel.
The California legislature passed a new law regulating court fees effective January 1, 2006. The law enacted the â€œUniform Civil Fees and Standard Fee Schedule Act of 2005,â€ with the goal of establishing a uniform schedule of filing fees and other civil fees for the California Superior Courts.
The bill will affect a number of court related fees. It may also impact fees charged by court clerks to perform past criminal record checks. Pre-employment screening firms conduct criminal checks by researching names at the county courthouses in order to assist employers in exercising due diligence in the hiring process. One part of the new law requires that the fee for a search of records or files conducted by a court employee that requires more than 10 minutes is fifteen dollars ($15) for each search. If courts charge additional fees for court related services, that could end up increasing the cost of background checks in California.
At present, it is unclear how and when the court clerks in the 58 counties in California will deal with the new law. ESR will be motoring the situation and will keep employers advised of the potential impact of this new law.
The text of the law is available at: http://www.leginfo.ca.gov/pub/bill/asm/ab_0101-0150/ab_145_bill_20050719_chaptered.html
Verifying past employment is one of the single most important tools for an employer. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even verification of dates of employment and job title is critical because an employer must be concerned about unexplained gaps in the employment history. In addition, 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. Finally, documenting an attempt to obtain references can demonstrate due diligence.
However, it is also critical to prevent fraud in past employment verification. One effective fraud prevention tool is to have a policy that every past employer phone number is independently verified using a third party source. That serves to both verify that the past employer is authentic and the phone number is genuine, and not just the number for a friend of the applicant.
Third party phone number verification can be conducted by using directory assistance or online sources. If the employer cannot be located, then public records can be searched.
ESR has a strict policy that every phone number for every past employment verification is independently verified in order to verify both the employer and the phone number.
Bottom-line: Any employer who outsources past employment verifications should ask their background firm what steps are taken to prevent applicant fraud and to verify the existence of past employers and their phone numbers. Unfortunately, some firms cut corners and leave employers unprotected by simply calling whatever number the job applicant has provided.
- ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.
The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work. Features of this course include:
- Convenient 24/7/365 availability through any online connection
- 21 self-paced lessons on Safe Hiring practices
- A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
- Review quizzes after each lesson featuring more than 300 questions about Safe Hiring
- Easy access to useful Safe Hiring web-links
- Sample Safe Hiring forms to help guide your own form development
- Industry certification in Safe Hiring
- Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)
Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective Safe Hiring program including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.
The course is available at http://esr.coursehost.com
More information is available at: www.esrcheck.com/ESRonlineSafeHiringCourse.php
- ESR wrote the book on background checks! â€“ The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,â€ has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.
ESR will be participating in the following seminars across the United States.
February 9, 2006 National Web conference “Avoid Negligent Hiring-Best Practices and Legal Compliance,” sponsored by the Northern California Human Resources Association (NCHRA)
February 20, 2006 Anaheim, CA CAHHS Health Care Volunteer Convention â€œHow to Screen, Interview and Place Volunteersâ€¦Legallyâ€ Click Here
March 17, 2006 Oakland, CA “Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring,” Lorman Seminars
March 21, 2006 Las Vegas, NV “International Pre-employment Background Screening – Dealing with the Practical and Legal Challenges.” 29th Annual SHRM Global Forum
March 30, 2006 San Diego, CA “Pre-employment Background Screening for HR and Staffing Professionals.” SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)
June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945