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January 2007 Vol. 7, No. 1
Employment Screening Resources (ESR) Newsletter and Legal Update
A number of city governments have instituted a new policy to help ex-offenders re-enter the workforce by taking out questions about past criminal conduct from the employment application. Cities such as Boston, Chicago, Minneapolis, San Francisco and St. Paul have taken the lead in trying to get ex-offenders into the workforce by not asking questions about past offenses in the initial application process that would limit ex-offenders from applying in the first place. Other jurisdictions, such as Indianapolis, Los Angeles, Newark and Philadelphia are considering such legislation. In Boston, the law has gone further and applies to an estimated 50,000 vendors who do business with the city.
The logic behind the law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches out criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. The law is designed to address the problems faced by ex-offenders who are unable to obtain the employment necessary to become tax paying and law-abiding citizens, and to reduce the high recidivism rate of ex-offenders. It can cost taxpayers over $30,000 per year to incarcerate an individual, so society has a vested interest in having ex-offenders succeed.
These laws do not mean that convicted child molesters will be getting jobs as playground supervisors. The cities and counties passing such laws allow for background checks on finalists, consistent with the EEOC guidelines on the permissible use of criminal records for employment.
As a result of the events of September 11, 2001, US authorities have been negotiating with the European Union on obtaining Passenger Name Records (or PNR) regarding passengers on flights from Europe to the US. The Court of Justice of the European Community struck down an agreement on data transfer, reached in 2004, in May 2006 due to concerns over compliance with European privacy rules. A new agreement had not been reached by September 30, 2006; the date the European Community indicated the old agreement would expire, leaving European airlines having to choose between violating either EU privacy law or US law.
A new agreement was reached on October 5, 2006 and published in the federal Register on January 4, 2007, along with a letter from the Department of Homeland Security setting forth certain assurances (called undertakings) on how the US would protect the privacy of the passenger data. The agreement by its term only lasts until July 31, 2007, which means that negotiations will be continuing.
The negotiations attempted to resolve some of the differences in the positions between the US and Europe, such as how long data can be retained, the nature and the extent of data being transferred, whether the US can pull the data or if the data must be pushed after US requests, how the data will be shared between Homeland Security and other agencies in the US, and the protection given to the data by the US.
For human resources professionals, the ongoing issue of data privacy and protection for airline passenger records highlights several critical points. First, the dispute is a reminder that the European Union views the United States as a country that generally does not provide adequate safeguards for personal data. In addition, the dispute over PNR illustrates just how seriously E.U. data protection authorities take the issue of international transfers of personal data. If E.U. data protection authorities are insisting upon privacy protections even in the context of the war on terrorism and protecting the safety of airplanes, then EU officials can be expected to also take seriously violations of E.U. data protection laws in the “normal course of business.”
For these reasons, every HR department, which relies upon transfers of personnel information from the E.U. to the U.S., even for the most routine forms of human resources administration, should address the data protection compliance issues raised by those transfers. This means that a multi-national company cannot lawfully transfer employees’ “personal data” (which includes not only employee health and compensation information, but even an employee’s work location and e-mail address) from the E.U. to the U.S. without taking steps which will demonstrate to E.U. data protection authorities that the information will be adequately protected once it arrives in the U.S.
The principal options currently available include certification to the U.S.-E.U. Safe Harbor agreement, data transfer contracts, and binding corporate rules. The Safe Harbor program is maintained by the Department of Commerce and provides a framework for US firms to certify that it provides adequate privacy protection of personal data of individuals from EU countries. Each of these options has advantages and disadvantages, which should be carefully scrutinized. Because the E.U. has among the most stringent data protection laws in the world, compliance with those laws will have the added advantage of satisfying the data protection requirements of other countries with similar, or somewhat less stringent, data protection laws, such as Australia, Canada, and Japan.
Employment Screening Resources (ESR) was the third screening firm in the US to become Safe Harbor certified. For more information on ESRâ€™s international services, contact Jared Callahan at [email protected] or call at 415-898-0044, ext. 240.
A study released on January 16, 2007, concerning the increased use of credit card debt to pay for medical expenses, underscores why employers should approach credit reports with caution when hiring.
The report documented how low and middle income American households who had medical expenses carried much higher credit card debt to cover co-payments, uncovered procedures and other health care costs. According to the authors of the report, the result is that many Americans are piling up debt on high interest credit cards, and risking their financial security due to illness.
One result of this trend can be that credit reports may be adversely affected by showing a high debt. However, employers should take into consideration that such debt may have no relationship to potential job performance. Employers are well advised to only utilize credit reports when it is directly relevant to a particular job, such as a position that handles cash or assets, and even then, to be careful to ensure that any information is rationally related to an employment decision.
One item of good news for Americans with high credit card debt due to health issues is that credit scores are not contained in employment credit reports and are not used for employment decisions.
See 2007 Schedule Below:
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
ESR 2007 Schedule
January 26, 2007 Scottsdale, AZ “Pre-employment Screening,” 2006 Annual Conference for the Consumer Data Industry Association (CDIA)
January 29, 2007 National Teleconference on Screening Applicants Using Social Networking Sites: Legal or Liability? Lorman Seminars
January 30, 2007 Stockton, CA “Everything You Wanted to Know About Pre-employment Screening,” Lorman Seminars
February 8, 2007 National Teleseminar
href=”http://184.108.40.206/nextrain/Event.aspx?EventID=365&TitleID=182″ target=”_blank”> Safe Hiring Audit-Implementing and Measuring Due Diligence.” Presented by BizSummits. See www.bizsummits.com
February 22, 2007 Santa Clara, CA “Avoid Negligent Hiring–Best Practices and Legal Compliance.” Santa Clara EAC, Biltmore Hotel
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
June 10-13 Boston, MA PRIMA Conference (details to follow)
June 25/26, 2007 Las Vegas, NV “Negligent Hiring Mock Trial” and “Legal and Effective Reference Checking and Education Verification.” SHRM 59th Annual National Conference and Exposition.
Fall, 2007 Bangalore, India International Pre-employment Screening Conference (details to follow)
Contact ESR for further details.
Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release
Please feel free to contact Jared Callahan at ESR at 415-898-0044 or [email protected] if you have any questions or comments about the matters in this newsletter. Please note that ESR’s statements about any legal matters are not given or intended as legal advice.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945