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February 2007 Vol. 7, No. 2
Employment Screening Resources (ESR) Newsletter and Legal Update
According to a news article appearing in the Christian Science Monitor on January 18, 2007, the use of credit reports for employment decisions is becoming seen as a civil rights issue. The article, which quoted ESR President Lester Rosen on the use of credit reports, centered on a job applicant at Harvard University who was not given a position after a credit report was run.
According to the article, the applicant had worked as a temporary employee processing alumni donations including credit card payments. When she was offered a permanent position, the university ran a credit report and based upon the results, decided not to follow-through on the employment opportunity.
The article reviewed a growing trend among civil rights advocates who view the use of credit reports in employment as discriminatory. The article cited studies showing that certain protected groups had lower credit scores, meaning their use as a factor in employment could result in disparate treatment against members of protected groups.
In discussing why employers utilize credit reports, the article noted that:
â€œEmployers should look at credit only for jobs where the information is relevant, says Lester Rosen, president of Employment Screening Resources, a national background screening firm in California. He cites a few examples:
- For jobs handling money, people may have the motive to steal if their debts surpass their salary.
- For jobs requiring travel, bad credit could bar applicants from renting cars or buying tickets.
- For jobs managing money, the report can offer some clues on how applicants manage their own.
Particularly in that last scenario, he cautions employers to be circumspect since blemishes might be errors or beyond the person’s control, such as sudden medical expenses. Legally, employers must receive written permission from applicants to do a credit check, and must give those denied because of credit a chance to respond.
Mr. Rosen defends the careful consideration of credit in the hiring process. â€˜If Harvard hired a person and did not use a credit report and the person embezzled, what would the headline be?â€™ he asks.â€
The criticism of the use of credit reports seemed to stem from the use of credit scores. However, it is critical that employment credit reports do not contain credit scores. According to the article, Harvard in fact did not have a numerical score. What employers are looking at are specific facts contained in the credit reports demonstrating behavior or risks.
The bottom-line: credit reports in employment remains a sensitive issue. There has only been one study relating credit reports to employment, and although it was a very small study, it suggested there was no relationship between credit reports and employment performance.
Since employment credit reports do not contain any sort of scoring, the use of a credit report for employment becomes a judgment call each time. One of the problems with that is that a credit report can contain what appears to be derogatory information that is incorrect, or has no relationship to the ability to successfully perform the job. That is why ESR urges employers who utilize credit reports to use them with extreme caution and to ensure that any use of a credit report for employment is based upon data that is recent, relevant, accurate and fair.
Employers have an obligation to verify, through a specific process, the identity and work authorization or eligibility of all individuals, whether U.S. citizens or not. Part of the process requires an employer to review certain documents within 72 hours.
A Frequently Asked Question is if employers can copy the forms they review. The Department of Homeland Security (DHS) has answered that question and many other FAQâ€™s in a form called â€œThe Form I-9 Process in a Nutshell.â€
According to the DHS:
An employer may, but is not required to, copy a document (front and back) presented by an individual solely for the purpose of complying with the Form I-9 verification requirements. If such a copy is made, it must be retained with the Form I-9. The copying of any such document and the retention of the copy does not relieve the employer from the requirement to fully complete Section 2 of the Form I-9. If employers choose to keep copies of Form I-9 documentation, then the same should be done for all employees, and the copies should be attached to the related Form I-9. Employers should not copy the documents only of individuals of certain national origin or citizenship status. To do so may constitute unlawful discrimination under section 274B of the Immigration and Nationality Act.
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act to further deter illegal immigration into the United States. The law created the Basic Pilot Program, a voluntary program that allowed employers to verify the employment eligibility of prospective employees through the Social Security Administration and Immigration and Naturalization Service.
ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individualâ€™s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. For more information on ESRâ€™s I-9 services, including a Paperless I-9 service, contact Jared Callahan at [email protected] or at 415-898-0044, ext. 240.
Here is a question from an employer from a national webinar on hiring given by ESR President Les Rosen.
Question: How far back do you recommend going on a background check? I’ve been told 7 years is as long as you are legally allowed. I wanted to know what is considered the standard. If we use 7 years, have we done due diligence?
ESR Response: Many employers use a “seven year searchâ€ as their standard. That has evolved primarily due to the fact that 12 states have some form of a seven year rule, and the federal Fair Credit Reporting Act (FCRA) had such a prohibition on employees making less than $75,000 a year until it was revised in November, 1998. The federal law was changed so that a screening firm could report a criminal conviction regardless of age. Even though the federal law, and many states, allows researchers to go back more than seven years, because of the lack of a workable national rule, the industry standard has become a seven-year search.
There are some things to consider however;
First, for states such as California that have a seven year limit, that limit only applies to what a background firm can report. Employers who go to the courthouse themselves are not subject to such limits.
Second, for employers in those states that do not have a seven year limit, then going back just seven years can leave those employers exposed to unnecessary risk.
Third, the seven years can include criminal matters that occurred beyond the seven years under certain circumstances. The seven-year period means that a person is free of custody for a period of seven years. For example, a crime that occurred more than seven years ago may be reportable if any custody time was served within the past seven years.
Fourth, keep in mind that the older the conviction, the less relevant it may be. The EEOC guidelines do not permit an employer to automatically deny employment based upon a criminal matter, but to consider the nature and gravity of the act, the nature of the job and the age of the offense.
Fifth, make sure that your background screening provider is using court researchers that go back on criminal records as far back as the records are available. In other words, while checking the records, the criminal researcher should not simply go back just seven years, because they could be missing records. It can be a big mistake to simply ignore older convictions because they are reportable in a number of states. Even in most seven year states, there is an exception if a person makes over a certain amount of money.
Finally, where it gets particularly complicated is how to proceed if the screening involves two states. For example, assume that an applicant from California, where there is a seven year restriction, has a criminal matter that is ten years old and therefore could not be reported in California. However, assume the job is at a facility in Ohio where there is no such rule. Does the employer and screening firm follow California law or Ohio law? That becomes a very complex issue that will be addressed in future articles.
The whole issue of reporting criminal records once again underscores that background screening is a professional, knowledge-based service and not merely data retrieval, and it is important to make sure your screening firm really understands the rules and does not merely apply mechanical standards.
Have questions about the legal aspects of background checks for safe hiring? Send them to Jared Callahan at [email protected]
ESR is pleased to announce new services that are available to US employers:
- Form I-9 Compliance ESR is qualified to act as an employer’s Designated Agent to perform the verification of employment eligibility checks to determine that individualâ€™s employment eligibility through databases administered by the Department of Homeland Security and Social Security Administration. See: https://www.esrcheck.com/formi9.php
- In-depth Searches and Litigation Support ESR has introduced a new service, an â€œIntegrity Check,â€ for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: https://www.esrcheck.com/IntegrityCheck.php
- Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can not ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at [email protected] or at 415-898-0044, ext. 240.
See 2007 Speaking 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: https://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
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