This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR’s statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the â€œremove” feature at the end of the newsletter and you will not receive any future newsletters.
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August 2007 Vol. 7, No. 8
Employment Screening Resources (ESR) Newsletter and Legal Update
A popular urban myth is that members of regulated and licensed professions, such as doctors, lawyers, CPAâ€™s, nurses or teachers do not need a background check because some governmental agency is in charge of ensuring that individuals that commit crimes or misconduct will not have a license to practice their profession.
Unfortunately, nothing can be further from the truth. Licensing is conducted by numerous boards in the 50 states and territories. Due to some of the following factors, it is entirely possible for a criminal to be licensed by a state agency:
- The system for a licensing board to discover a criminal conviction is far from perfect. Conviction data may not be sent to a licensing board immediately, or at all. In addition, there can be a substantial lag time between the alleged criminal act, the arrest and the conviction.
- Even if the criminal conviction is discovered by the licensing board, the disciplinary process takes time. Unless the licensing board takes action to issue an immediate suspension, the licensee may be able to continue to practice while the administrative procedures drag on.
- While the disciplinary action is pending, a licensee may simply move to another state and apply for a license, covering up the proceedings in the first state. In other words, a licensee may try to â€œbeat the disciplineâ€ before the new state finds out about it.
- Even if a person is suspended in one state, an employer cannot assume that all state licensing boards share information with each other. As we discovered post 9/11, we do not live in a world where the government routinely collects and shares data with other governmental entities.
- There can even be situations where a person commits a crime that does not result in losing a license, but is still important for an employer to know about. In fact, in some licensed occupations, a person may even get a â€œprivateâ€ reprimand meaning that a check with the appropriate licensing board may not reveal anything.
The bottom-line: Employers that hire a member of a licensed or regulated occupation cannot assume that they are immune from liability simply because a person appears to have a current license. Since it is possible for criminal convictions or acts of misconduct to â€œfall through the cracks,â€ an employer still has a duty to exercise due diligence by its own independent background check.
For a listing of the numerous state agencies that license occupations, see: http://www.brbpub.com/pubrecsitesOccStates.asp
One of the biggest sources of pain for recruiters in the hiring process is obtaining the paperwork necessary for the background check and then entering data into an online screening system. Typically, recruiters struggle to obtain a â€œwet signature,â€ meaning that they need to have the applicant sign an actual piece of paper containing the background consent and disclosure, and physically get that to the screening firm. If the recruiter utilizes an online background screening system, then the data must be entered on the background firmâ€™s system.
All of those burdensome tasks, however, are a thing of the past. By using electronic signatures with the latest technology, sophisticated background firms can now offer â€œpaperlessâ€ online background checking systems, where the applicant fills out the online information and signs an online consent.
Such a process is permissible due to a law passed in n October, 2000, called the Electronic Signatures in Global and National Commence Act (ESIGN). Section 101(a) of the act provides thatâ€”
â€œ(a) . . . Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce -(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.â€
The Federal Trade Commission, which regulates pre-employment screening under the Fair Credit Reporting Act, revisited the issue of electronic authorization in the Zalenski letter (www.ftc.gov/os/statutes/fcra/zalenski.htm) issued May 24, 2001. The FTC concluded that in view of the ESIGN Act, it was possible to use electronic signatures for authorization for a background check. The FTC indicated that whether or not the electronic signature is valid depends on the specific facts of each situation. Specifically;
- The electronic signature must clearly convey the consumerâ€™s instructions.
- The FTC stated that as specified by Section 101(e) of the ESIGN Act, that consumerâ€™s electronic authorization â€œmust be in a form that can be retained and retrieved in perceivable form.â€ In other words, there must be a clear and reproducible record showing the electronic consent.
At a minimum, any firm attempting to obtain electronic compliance online should go through a series of screens, each one giving the applicant the chance to continue or to exit. For each screen that conveys information, there should be an opportunity for an applicant to indicate by a mouse click if they â€œunderstand and agreeâ€ or â€œdo not understand and agree.â€ If they hit the â€œdo not understand and agree,â€ then they should be sent to a screen that makes it easy to obtain more information.
In order to allow recruiters and employers to take advantage of the ESIGN Act and the latest technological developments, ESR has introduced that Applicant Generated Report (AGR) system, where job applicants go online and fill out the information needed for a background check and give an electronic online consent. There is even a â€œmouseâ€ signature feature. This does away entirely with recruiters performing data entry or sending documents to a screening firm. For more information, see: https://www.esrcheck.com/Applicant_Generated_Reports.php
In August, 2007, the federal governmentâ€™s Basic Pilot Program used for electronic verification of the right to work in the U.S. was renamed “E-Verify,” and the federal government has announced that the system will be undergoing enactments. Also, new I-9 forms are expected in the future. See: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm
ESR is qualified to act as an employer’s Designated Agent, to perform the verification of employment eligibility checks. Utilizing databases administered by the Department of Homeland Security and Social Security Administration, employers can utilize ESR to check the information on an I-9 form to determine that individualâ€™s employment eligibility. To participate in the E-Verify (Basic Pilot) Program, an employer must first provide ESR with information so that ESR can register an employer. As part of the registration process, an employer must execute a Memorandum of Understanding (MOU) that sets forth the responsibilities of the Social Security Administration, the U.S. Citizenship and Immigration Services Bureau, and the employer.
Although the program is voluntary, many employers find that utilizing ESR as their agent to participate in the program has numerous advantages. Because many employers do not have the time or resources to personally verify the employment eligibility and other critical information of all potential employees, ESR can provide this valuable service. Most critically, if an employee is not verified, ESR can help walk an employer through the necessary steps.
The I-9 service occurs within the first 72 hours of employment. To begin this service, an employer simply provides ESR with a sign-up form so that ESR can set-up an account for the employer. Then, the employer simply advises ESR each time a new employee is hired, and provide the means of verification used. In the event that a worker is NOT authorized, then ESR will assist you through the steps that must be taken.
One state, Arizona, has mandated the use of Basic Pilot Program starting in January 2008.
For more information, contact Jared Callahan of ESR at 888-999-4474 Ext. 240 or [email protected].
ESRâ€™s President, Lester Rosen, was featured on the front page for the web site of the Society for Human Resources Management (SHRM) during the week of Augusts 20, 2007 as part of a new series of SHRM multi-media interviews. The interview was conducted at the annual national SHRM Staffing Conference in New Orleans this year where Mr. Rosen presented two sessions. For more detail see: www.SHRM.org
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 contractors 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
September 5-7 Keystone, CO “Pre-employment Screening: Best Practices and Legal Compliance.” Colorado State SHRM Conference
September 17/18 Oakland, CA “Using Online Social Networking Sites to Screen Applicants” Northern California Human Resources Association (NCHRA) Annual Conference.
September 20, 2007 National Teleseminar “Screening Applicants Using Social Networking Sites: Legal or Liability?” Lorman Seminars. www.Lorman.com
September 24, 2007 Las Vegas, NV “Negligent Hiring Mock Trial–Security in the Hot Seat” ASIS International 53rd Annual Seminar and Exhibits
October 17/18, 2007 Long Beach, CA “Negligent Hiring Mock Trial: HR in Court.” and “Caution–Using Google, MySpace or Facebook for Hiring.” 50th Annual PIHRA Conference
November 9/10, 2007 Baltimore, MD “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)
November 12, 2007 Tampa, FL â€œThe Pre-employed Screening Industry–The Good, the Bad and the Ugly.” Keynote address at the Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers)
November 13, 2007 Orlando, FL Background Checks and Recruiting Practices and Legal Compliance Kennedy Informationâ€™s Recruiting 2007 Conference and Expo
November 16, 2007 Contra Costa, CA Extreme Caution Advised: Advising Employers on Compliance with Federal and State Laws Regulating Pre-employment Screening and Background Checks Contra Costa Bar Association MCLE Seminar (intended for attorneys)
December 6-7, 2007 Bangalore, India “Background Screening for US Firms with Operations in India and the Pacific Rim.“ Keynote Address at the International Pre-employment Screening Conference, The Taj West End Hotel
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