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August 2006 Vol. 6, No. 8
Employment Screening Resources (ESR) Newsletter and Legal Update
Inexpensive criminal searches are back in the news once again, demonstrating why employers need to be careful when using cheap solutions to complicated problems. According to an article posted at azfamily.com on August 14, 2006, a fitness instructor was the subject of a background check by a local gym. The gym utilized a large national background firm that supposedly found a criminal record – a ten-year-old conviction for ID theft with three years probation.
The problem? It was the same name but not the same person. When a local reporter pulled the court file, it was discovered that the actual perpetrator had a different social security number, different date of birth and even a different race than the fitness instructor. The good news is that the reporter was able to get the report revised and the fitness instructor got her job. See: http://www.azfamily.com/news/3oys/stories/KTVK3OYS20060814_background-check.b71a6ad.html
Although the details concerning the exact search were missing from the story, this type of mistake can occur when an employer utilizes a cheap background database device commonly and mistakenly referred to as a â€œnationalâ€ criminal search. The problem with a database search is that it can give a false negative or a false positive. A false positive can occur when the database results are reported without anyone going to the courthouse to review the actual court documents to look for identifiers, such as date of birth, to determine who the criminal record actually belongs to.
False negatives occur when a person is â€œclearedâ€ that actually has an employment related criminal record. In a November 2004 newsletter, ESR related a news story about a firm in New York City that delivers groceries to peopleâ€™s homes and found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a so-called â€œnationalâ€ type of database search performed by a large national background firm. See: http://www.esrcheck.com/newsletter/archives/November_2004.php
The bottom-line: Although the â€œnationalâ€ type searches can be very valuable as a secondary or back-up tool because it is national in its reach, it is not a substitute for a real criminal search of county courts at the courthouse level. These databases may have millions of records, but they are assembled from a hodgepodge of different sources and there are substantial questions as to their accuracy and completeness. Any positive results should be followed up at the courthouse to confirm details before being reported to an employer.
Employers have become increasingly aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check.
One of the most effective tools an employer has is the use of an application form in the hiring process. An application enables an employer to directly ask an applicant if they have a criminal record. The advantage is that an employer can use a well-worded application form to discourage applicants with something to hide, and encourage applicants to be open and honest.
Unfortunately, many employers use language in their applications that is either to narrow, too broad or too ambiguous. Each of these mistakes can put an employer in difficulty.
(1) Too Narrow: An example of a question that is too narrow is to only ask about felonies and not misdemeanors, which can be very serious. Most employers would want to know, for example, if an applicant had convictions for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in many states, such as California, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that they have not been convicted of a felony, even though they have serious misdemeanor convictions that an employer needs to know about.
(2) Too Broad: On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. There are a number of limitations under state and Federal law concerning what an employer may legally ask about, or discover, concerning an applicant’s or employee’s criminal records. In fact, it is illegal in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where they are forced to reveal information about themselves that they are legally entitled not to disclose, an employer can actually be sued for “defamation by compelled self-publication.” In other words, by being forced to say something defamatory about themselves, an applicant may be able to file a lawsuit for defamation against the employer.
(3) Too Ambiguous: The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor,â€ or a similar question that calls for an opinion. The problem is that an applicant is being called upon to make a judgment about their own offense. Whether a misdemeanor, for example, is serious can call for a very complex legal and factual determination on which lawyers could disagree. By asking a question that is ambiguous and leaving waffle room, an applicant can argue that in their mind, the offense was not serious and that their “noâ€ answer was truthful. That is why the question cannot contain ambiguity.
Employers should have their attorney review their employment application to ensure it is using the broadest possible language that is legally allowed in your state. Although ESR does not give legal advice, more information on this topic generally can be obtained from ESR Compliance Director, Vince Pascarella, at [email protected] or 415-898-0044 ext. 241
A recurring issue for any business is to avoid the misclassification of workers as independent contractors when they are in fact employees. For an employer, classifying a worker as an Independent Contractor can have many advantages, such as avoiding payroll taxes, unemployment insurance or workersâ€™ compensation. A firm can also avoid having a fixed payroll expense, or having to spend money for benefits such as health, vacation or retirement.
On the other hand, the federal and state governments have an interest in businesses putting workers on payroll to better ensure the collection and withholding of payroll taxes. States want employers to pay workersâ€™ compensation premiums and unemployment insurance. As a result, the IRS and the states have a big stake in ensuring that businesses do not misclassify a worker as an â€œindependent contractorâ€ when in fact they should be on payroll.
A bill ending in the California State Assembly (AB2186) underscores the concern of state governments in the proper classification of workers. It states it is the “intent of the Legislature to prohibit the deliberate misclassification of employees as independent contractors … and to penalize intentional misclassification.” It provides penalties of $25,000 per worker that has been purposefully, willfully, or intentionally classified an independent contractor when they are in fact employees, and raises the stakes to $50,000 per worker if the employer has a pattern or practice of misclassifying.
Employers classifying workers as Independent Contractors are well advised to seek the assistance of their legal counsel or other qualified professional. A number of factors must be considered, but it often comes down to the issue of whether the worker is truly independent, or if they are an employee in disguise because the firm controls the manner and means of accomplishing the goals. Many employers have found out the hard way that the test is much more complicated than they thought.
This is also a potential issue for employers utilizing screening firms that use home workers to perform domestic employment and educational verifications. Not only does it raise issues of professionalism, and the protection and security of private data being sent willy-nilly into living rooms, kitchens and dorm rooms across America, but it raises additional concerns if the workers are misclassified. A screening firm that attempts to cut costs by using at-home operators as Independent Contractors may be running a large potential risk.
The bottom line: ESR strongly suggests that an employer think twice before utilizing any screening service that uses home operators, particularly if they are classified as Independent Contractors.
For more information on the use of home operators by screening firms, and concerns related to privacy, security, professionalism and classification of workers, contact ESR compliance director Vince Pascarella, an attorney at law, at [email protected] or 415-898-0044 ext. 241
ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources 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: http://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 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 Schedule
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– Credentials Verification and Background Checks.” National Bio Human Resources Conference sponsored by Bio (Biotechnology Industry Organization)
October 13, 2006— Sonoma County, CA-“International Background Screening.” 23rd Annual Conference for PASCO (Personnel Association of Sonoma County) PASCO
November 6, 2006-Long Branch, NJ–Pre-employment Background Checks,” Garden State Council (New Jersey State Council) SHRM Statewide Conference Garden State Council
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