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June 2006 Vol. 6, No. 6
Employment Screening Resources (ESR) Newsletter and Legal Update
In the news recently there have been articles on an evolving product called, â€œContinuous Screening.â€ The concept is that a background screening is typically conducted at the point of hire. However, it is possible that after a person is hired, an offense can be committed. A continuous screening program is aimed at running periodic criminal records checks, such as every two weeks or, monthly. These periodic checks have the potential to identify criminal cases that occurred after the person was hired.
However, there are a number of factors to consider:
Caution Using Databases: Since private employers generally do not have access to the FBI national criminal database, such ongoing screening programs are based upon running various proprietary criminal databases, and not by sending researchers to actual courthouses. It is critical to understand that multi-jurisdictional database searches are primarily a research tool only and is not a substitute for a hands-on search at the county level. In addition, not all states have a database that is available to employers, and even where data is available, there are substantial issues about how accurate it is. Databases in each state are compiled from a number of sources. The result is that such databases are a crazy quilt patchwork of data that is not necessarily complete, accurate or up-to-date.
- False Sense of Security: Employers must clearly understand that because of the nature of databases, the appearance of a person’s name on a database is not an indication the person is a criminal any more than the absence of a name shows he/she is not a criminal. There are many reasons why a criminal would not appear on a database search. The danger is that an employer can develop a false sense of security because a database can â€œclearâ€ a person who is, in fact, a criminal, or inaccurately label an employee as a criminal when they are not.
- FCRA Compliance For Accuracy: Even if there is a match, it should be verified by reviewing the actual court records. Under the Fair Credit Reporting Act (FCRA), there are mandatory procedures that must be followed to ensure the maximum possible accuracy of information. In addition, there are a myriad of state laws that control how criminal records can be utilized for employment purposes.
- Consent Issue: In addition, employers must ensure that such searches are done with consent. In California for example, it is arguable that such continuous searches require a new consent each and every time it is done in order to comply with California state law. Another issue is whether an employer can legally not hire someone, or terminate someone, because they refuse to consent to ongoing criminal record checks.
- What to do if a Record is Found and EEOC Considerations: If Human Resources conducts continuous criminal checking and finds a record, then the employer needs a written policy and procedure on how to respond to the information legally. Under the EEOC rules, a criminal record cannot be utilized to automatically terminate an employee without some business justification. There are also restrictions on the use of arrests. Employers need to exercise caution in how such records are utilized, and to determine what type of record may be relevant to employment.
- Impact on Workforce: Another issue is the impact on the workforce for checking on a bi-weekly or monthly basis to see if current employees have become crooks. There may be some industries where the risk factor justifies continuous checking. However, employers need to consider if such continuous checking is appropriate for their organization.
- The bottom line: Although such continuous searches can be a valuable risk-management tool, an employer needs to address a number of issues. The employer also needs to understand the limitation to the searches and the issues surrounding the legal use of such data. In addition, if an employee commits an offense that is serious, an employer will be made aware an issue exists by the employeeâ€™s absence formwork. For employers who believe this may be a service of value, please contact ESR for more information.
One area where a type of continuous checking has been mandated is for hospitals. Effective January 1, 2006, the Joint Commission on Accreditation of Healthcare Organization (JCAHO) required that hospitals and covered health care entities conduct Primary Source Verification (PSV) directly from the licensing sources on all licensed, registered or certified staff. The rule applies to both employees and contract staff and also applies to the process of tracking license renewals. The new standard is contained in HR.1.20.
However, unlike ongoing criminal checks that utilize various databases that are subject to false negatives and false positives, these hospital checks are done using the Primacy Source, which is the most accurate data available. An example of a Primary Source would be the records of an actual state-licensing agency.
For hospitals and covered health care organizations, there is a logistical challenge in obtaining, tracking, updating and maintaining an audit trail for all employees who are required to be licensed, registered or certified. Licenses are typically checked when an employee is first hired, but covered entities must now verify the information from the primary source, track expiration and manage the process of updating records from the primary source in order to be in compliance.
To help hospitals and covered entities comply, ESR has created special software for its healthcare clients called the ESR PSVcheck Database. The software manages and tracks the entire process in accordance with the new standards. For example, the software generates automatic reports on all employees and contractors with licenses that are expiring. The ESR PSVcheck Database provides tools to conduct license verifications for the primary source and to track all current and past licensees. Each department in the hospital can determine if it wants to conduct the Primary Source Verification itself, or have ESR do it. During a JCAHO audit, all necessary information demonstrating compliance with the Primary Source Verification rule is instantly available.
For more information on the database and how to be in compliance after January 1, 2006, contact Vince Pascarella at [email protected] or 415-898-0044 ext. 241
Q: A staffing firm reports that a claim was made for monetary damages because it provided a temporary worker to a client who stole money. The client ran its own background check after the theft and discovered that the worker had a criminal background and was on a “federal” sex offender list. Going forward, what are the best practices the staffing firm can utilize and what part does a sexual offender list play in a background check?
A: If a staffing firm sends a temporary worker to a client and does not conduct appropriate due diligence, the staffing firm can only hope that the temp is not dangerous, unfit, unqualified or dishonest. If the staffing firm loses the bet, and it turns out that the temp causes damages, the staffing firm may face the threat of legal action from a now very unhappy ex-client not to mention any victims of the workerâ€™s misconduct.
Instead of playing Russian Roulette and hoping for the best, a staffing firm can take a number of steps to exercise due diligence. For example, well thought out and documented application, interview and past employment check policies cost nothing and can often reveal, in advance, temps that a staffing firm may wish to avoid.
A criminal background check is also an essential element of due diligence. The extent of the criminal checks, and who pays for it, is probably a matter of discussion with the client. Just keep in mind that there is no one standard definition of a â€œcriminalâ€ background check. Private employers cannot generally access the nationwide FBI databases (NCIC), so criminal checks must be performed at each relevant courthouse. A criminal check can vary from a simple one-county check of current residence to more extensive checks of additional past counties where a person lived or worked and can even include federal records. A staffing firm should be careful using any databases. Although a national â€œmulti-jurisdictionalâ€ database can be a valuable supplemental research tool, potential gaps in data means they should not be used as a primary tool for a background check.
A background check can also include a sexual offender search. In every state, certain sexual offenders must register with the local police, and under â€œMeganâ€™s Law,â€ the public has access to some of this data. Most states have a Website available where some information can be located. The U.S. Department of Justice has aggregated a number of states in an online look-up. A staffing agency should certainly consider such a search, especially if the temporary worker is being sent into any workplace where there are potentially people that may be vulnerable or at risk. However, keep in mind that these sexual offender databases are only a partial tool. Typically, only the more serious sexual offenders are listed, and if a sexual offender fails to register or moves and does not re-register their new address, the information can be incomplete. The staffing firm must also keep in mind the Fair Credit Reporting Act (FCRA) of any searches that are conducted.
In order to make sure there are no ambiguities in exactly what due diligence measures a staffing firm undertakes before placing a worker, a best practice is for a staffing firm to clearly define in its client contract exactly what it is, and is not, doing. For example, if a staffing firm is not conducting a criminal check, then that needs to be spelled out. If the staffing firm is conducting a criminal check, then the contract needs to clearly address issues such as:
- Who pays for it
- Who conducts it
- What the scope of the search is (that is, how many counties are to be searched, how far back in time, and what tools are being used)
- Who reviews the results and what the criteria is for not hiring someone
For more information on an effective application, interview and past employment checking program, See: https://www.esrcheck.com/docs/SAFE_Hiring_Program_ver_4.pdf
For more information on sexual offender databases, See http://www.esrcheck.com/sex_offender.php
For information on the federal listing of state sexual offenders, See:, http://www.nsopr.gov/
For more information on screening and staffing firms, please contact attorney Vince Pascarella, a member of the Colorado bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044/ [email protected]
June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition
ESR President, Lester Rosen, will be a presenter at the SHRM annual conference. Here is a summary of his talk:
- Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep business productive and out of court, including how to obtain and utilize criminal record and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.
- 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.
- 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)
- 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.
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:
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 is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.
Current 2006 Summer Schedule
June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition
July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)
September 12, 2006–Oakland, CA “International Background Checks.” Northern California Human Resources Association (NCHRA) Annual Conference.
September 21, 2006–Long Beach, CA “International Background Checks” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)
September 22, 2006–Long Beach, CA “Legal and Effective Employment an Education Verification” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (See www.PIHRA.org)
September 30, 2006–San Diego, CA “Negligent Hiring Mock Trial– College and University HR in the Hot Seat.” National HR Conference for College and University Professional Association for Human Resources (CUPA-HR)
October 2, 2006–Las Vegas, NV “Who are You Hiring– Credential Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio- Biotechnology Industry Organization
November 8, 2006–New York, NY– “Background Checks and Recruiting Practices and Legal Compliance,” Kennedy Information’s Recruiting 2006 Conference and Expo.
November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945