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ESRâ€™s offices will be closed on November 23 and 24 in observation of the Thanksgiving Holiday. The entire staff at ESR sends their best wishes for the holiday season.
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November 2006 Vol. 6, No. 11
Employment Screening Resources (ESR) Newsletter and Legal Update
Employers need to proceed with caution before utilizing â€œnon-criminalâ€ offense records. Some states, such as New York and New Jersey, have created categories of minor offenses that are specifically deemed to be â€œnon-criminal.â€ Examples of such offenses can be traffic violations or violations related to â€œdisturbing of the peace.â€ New Jersey has a system for â€œoffenses,â€ which are typically brought in lower courts in order to expedite less serious matters. An expert in New Jersey criminal searches states that a â€œnon-criminalâ€ offense can be brought in over 500 municipal courts for offenses that do not exceed six months in custody.
For the unsuspecting employer, this â€œnon-criminalâ€ case can cause complications. For example, assume a job candidate stated in their application that they have not been convicted of a crime. A background screening report reveals that they do have a court record for disorderly conduct, in a state that has labeled such a record as being â€œnon-criminal.â€ In that case, an employer cannot assume that the applicant has been untruthful, since technically the applicant was not convicted of a crime.
On the other hand, there is nothing that prevents an employer from utilizing information properly obtained that is a valid predictor or job performance, and non-discriminatory where state law has not prohibited the employer from considering it. The â€œnon-criminalâ€ disposition could have resulted from a more serious matter that may demonstrate behavior that is inconsistent with the job, such as violence. However, it is the underlying behavior that is being considered, and it can be difficult to discover the underlying factual basis of the â€œnon-criminalâ€ matter.
Most employers have questions in their application forms about past criminal convictions. Employers in states that have such non-criminal offenses may want to change the language on their application forms to include asking about â€œnon-criminal offenses or violations,â€ provided there is no prohibition in their state about asking. Employers should contact their legal department or outside attorney to review their applications. Employers should also keep in mind that their applications should contain language advising applicants that a criminal conviction will not be used to automatically deny employment.
The bottom-line: if an employer locates such a â€œnon-criminal violation,â€ they should proceed with caution and not assume the applicant has been untruthful.
A federal district court ruled that a background-screening firm could not escape liability for negligence on the theory that it merely resold information from a researcher, and had no responsibility for the accuracy of the data. In a 2006 case from the Eastern District of Kentucky, an applicant for a large employer was rejected because a background-screening firm reported that he had a conviction for driving under the influence. The conviction was purportedly confirmed by a date of birth and social security number match. When the applicant contested the report, the matter was re-investigated. It was discovered that although the real defendant had the same name, the court file had a different date of birth and in fact, the court file did not even contain a social security number.
In the lawsuit, the background firm blamed the research firm. The lawyers for the background firm argued that since the background firm was merely a â€œresellerâ€ of the information given to it by the research firm, it had no responsibility for the accuracy of the data.
The court rejected that argument, ruling that the background firm still had responsibility to take measures to supervise its researchers in order to provide accurate information.
The bottom-line: Employers need to be careful to only use background firms that utilize appropriate due diligence measures to ensure that its researchers provide accurate information. This requires a duty of care in the selection of researchers and ongoing due diligence in the supervision of researchers, such as regular salting of orders given to researchers, and review of results for accuracy. That is another reason that the selection of a provider of a professional service such as employment screening should not be based entirely on price. A professional firm takes the extra time and effort to insure due diligence and legal compliance. Although that may cost a little more in the short run, using a professional services is probably is much more cost-effective in the long run.
For a copy of the case, please contact Jared Callahan at [email protected] This story is not offered or intended as legal advice.
An in-house recruiter is typically given assignments to fill a certain number of positions by hiring managers. Human Resources, or security departments, dictate the safe hiring protocol for the employer, such as the background screening process that the firm may use. In-house recruiters typically are under pressure to complete the hiring quickly. However, the process used for background screening usually takes up to three days. For large firms, even a one-day delay can have an impact, since many employers have a preset new employee orientation schedule. If a new hire misses the start date, then the new hire may have to wait a week or more before the next new employee classes begin.
In-house recruiters can help speed up the process in several ways;
First, the recruiter must understand the process can be delayed if screening firms are sent incomplete information, or forms that are not legible or completely filled out. For example, screening firms often face difficulty in deciphering an application in order to identify and locate past employers or read the social security number. If a â€œ7â€ looks like a â€œ9â€ that can cause issues. The screening firm then has to call the recruiter to clarify, in order to avoid having to guess. Recruiters who review all applications with the candidates before sending the applications to a screening firm will find their work is done much faster. This is simply a good practice for any employer or recruiter.
Second, an in-house recruiter needs to communicate with hiring managers so there are not unrealistic expectations. A hiring manager may not understand, for example, that criminal records are searched at each relevant courthouse, or that delays can occur if there is a potential match and the court needs to bring files from storage. Hiring managers must also be advised that employment and education verifications can be delayed for a number of reasons, such as schools that are on vacation or require a check or release to be mailed, or employers that are closed, merged or refuse to cooperate. If there is a delay in receiving a completed screening report, the recruiter should examine the source of the delay.
Third, if a recruiter is working with a screening firm that has an online ordering system, the process is considerably faster. Not only does this ensure accuracy, which makes the process faster, but it also avoids delays caused by sending a request to a screening firm and waiting for the firm to do manual data entry.
Finally, there are times when a recruiter may determine that even though the screening firm has not been successful in obtaining all of the information, enough data is available to make a hiring decision. This typically happens in the area of verifying previous employment. When doing employment verifications, often times the employment oldest in time is the most difficult to obtain. However, the oldest employment may be the least relevant. If the applicant, for example, worked in a fast food restaurant six years ago after getting out of school, and the fast food place will not call back, then there may be no reason to delay the hiring decision, especially if the screening firm has obtained the most recent, and presumably more relevant, job verifications.
The preceding information is taken from chapter 20 of The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of the Workplace, by ESR President Lester S. Rosen (Facts on Demand Press/512 pages). See: http://www.esrcheck.com/SafeHiringManual.php
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
Current 2006 – 2007 Schedule
November 29, 2006 San Francisco, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” The HRNetworx Click Here To View Website
December 5, 2006 Sonoma County, CA “Avoid Problem Employees: Effective Hiring in the Wine industry” NCHRA Wine Industry Conference
January 30, 2007–Stockton, CA–“Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars
April 3, 2007 Sacramento, CA –“Everything You Wanted to Know About Pre-employment Screening” Lorman Seminars
April 23/24, 2007 New Orleans, LA “Avoid Negligent Hiring-Best Practices and Legal Compliance” and “Extreme Caution Advised: Dealing with Federal and State Laws Regulating Pre-employment Screening and Background Checks.” 2007 SHRM Staffing Management Conference
June 8, 2007 Pasadena, CA “Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945