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December 2007 Vol. 7, No. 12
Employment Screening Resources (ESR) Newsletter and Legal Update
In December 2007, ESR President, Lester Rosen, toured three destinations where US employers often have a need to screen applicants. Mr. Rosen was also the keynote speaker at the First India International Screening Conference held in Bangalore, India. The countries visited were the UK, India and Japan.
In all three countries, the goal is the same for employers; mainly to ensure due diligence in hiring to avoid applicants who are dangerous, dishonest, unfit or unqualified. However, any U.S. employer that is expecting the process to be similar to the U.S. will be very disappointed. Although employers internationally face similar challenges, there are stark differences in how things are done in each country.
When discussing background checks outside of the U.S., it is important to clearly differentiate between International Screening and Global Screening. International Screening refers to a U.S. Employer that is hiring someone in the U.S. that has spent time outside of the U.S. That can either be a U.S. citizen that has spent a period of time outside of the U.S. while working or going to school, or a citizen of another country working in the U.S. In either case, it is important for the screening consent forms to clearly be neutral when it comes to ethnicity or national origin, and only refer to a consent for screening in locations outside the U.S. where the person has lived, worked or studied. In the case of a foreign national coming to work in the U.S. on a VISA, the prevailing evidence appears to indicate that U.S. employers cannot assume that a government VISA means that a background check has been conducted by the government. Although the government checks various terrorist databases, there is no guarantee that there had been an adequate criminal record check, or that past employment or education has been verified. (See next story).
Global screening on the other hand refers to a situation where a U.S. firm sets up an operation outside of the United States, and needs to screen in that country. For example, if a U.S. company opens an operation in India, then Global Screening refers to the process of screening inside of India.
In the next four issues, ESR will review both International Screening and Global Screening for the UK, India, Japan and Peopleâ€™s Republic of China, (PRC). There will also be articles concerning screening in Canada and Mexico. Future issues will continue to address data and privacy protection issues as it applies internationally.
For information on International Screening, please contact Jared Callahan at 415-898-0044 Ext. 240 or [email protected]
There are essentially two legal ways for individuals to come to the U.S. to work or live â€” either apply for an immigrant visa or a nonâ€“immigrant visa. An example of a non-immigrant visa is an H1-B visa. This visa is issued for applicants with specialized professional skills to obtain permission to work in the U.S. According to government statistics, legal immigration in the U.S. was over a million people in 2002. This figure does not count the individuals from abroad in the U.S. working on a temporary work visa.
Here is the crux of the matter for employers: employers cannot assume the U.S. government in issuing a visa has performed a background check that relieves employers of their due diligence obligation to conduct their own screening. Government efforts are not foolproof. After the events of 9/11/2001, the U.S. Government has certainly increased checks on foreign visitors and workers, however, these checks are primarily aimed at keeping terrorists and international fugitives from entering the U.S., or deporting those non-citizens that commit crimes in the U.S. or overstay their visas. The efforts the government makes, although vital, do not substitute for what an employer needs to do. The government efforts are not necessarily aimed at lesser convictions that may be relevant to job performance, or verifications of credentials.
Part of the difficulty is thisâ€” when a person applies for either an immigration visa or a non-immigration visa, there are potential holes in the criminal background check process.
Criminal checks are done in different ways, depending on the type of visa. For a non-citizen applying for a visa in order to immigrate to the U.S. to live and to receive a â€œgreen card,â€ there is a â€œpolice certificateâ€ requirement. The applicant must typically obtain a police certificate from his or her home countryâ€™s â€œappropriate police authorities.â€ The applicant must include any prison records. That sounds good on paper; however, there are two points to consider.
The first problem is the time period for issuing police certificates may allow a person with a criminal record to evade detection. Under the State Department rules, the police certificate comes from a country, area, or locality where the alien has resided for six months. However, if a person has frequently moved around inside that country, criminal records can be missed, depending on how the records are kept. Recent offenses may not be reported. If a person has lived in other countries, then the relevant time period is one year, so records can be missed if the person was in the country for a short period of time or left after committing an offense. The consular officer â€” a State Department officer assigned to a local U.S. Consulate â€” may require a police certificate from additional jurisdictions regardless of length of residence in any country, if the officer has reason to believe a criminal record exists.
The second issue is that police certificates differ all over the world in terms of reliability, timelines, and completeness. Police certificates are still only as good as the efforts, resources, and abilities of the local law enforcement authorities in each country, so even when a police certificate is available, the completeness of the data can still be an open question. In addition, a number of countries do not even have police certificates available, or police certificates are too difficult to obtain and not available as a practical matter.
The U.S. State Department recognizes this as an important issue. The State Department maintains the Visa Reciprocity and County Document Finder, an international listing by country of issues involved in obtaining necessary visa documents. For more, see http://travel.state.gov/visa/reciprocity/index.htm. Visa applicants can visit the website to find out how to obtain police certificates and court records from their own country.
The essential lesson from this discussion is there are, statistically, a significant number of potential job applicants where the relevant background information will come from outside of the U.S. An employer cannot depend upon the visa process as protection. That means U.S. employers should consider what they can and should do internationally in the area of safe hiring and employment screening.
There are two types of international services an employer may utilize. The first type is an international employment screening. The second type is an international investigation.
For most employers, an international employment screening involves verifications of supplied information by an applicant who has given express written consent, as opposed to an active investigation to locate information. In other words, in a screening an employer will have already obtained from an applicant the names, addresses, and phone numbers of previous employers or schools. Also, the employer will have obtained a list of potential locations where an applicant has lived, worked, or studied, as it is important to know where to conduct criminal searches. If more information is needed, such as the applicantâ€™s school identification number or some other data, then the applicant can be asked to supply the needed data. The employer does not need to hire an international investigator to locate that information. The applicant will help the employer obtain the information since the applicant has signed a consent form and wants to be hired.
Another way of distinguishing between an international screening and an international investigation is who conducts the check and where. An international investigation typically involves a trained and experienced investigator working in the country where the investigation is being conducted. When an employer utilizes a screening firm, there is not necessarily an agent on the ground in the country where the information is being obtained. The screening may be conducted by phone or email contact with courts, employers, and schools. The person available to assist in the foreign country may be a court runner as opposed to an experienced investigator. In fact, for privacy purposes, it is a best practice for a U.S. firm to not send any personal data outside of the U.S.
Typically, an international investigation is considerably more expensive than a screening. Since international investigations may involve qualified personnel on the ground in the foreign country â€” doing in-person interviews or obtaining records â€” the cost can be thousands of dollars. If a business is filling a highly sensitive position or is conducting a due diligence investigation of a potential business partner, then the services of a qualified investigative firm may be needed.
Screening, by comparison, is considerably less expensive. A typical international screening will consist of contacting the employers and schools supplied by the applicant, and conducting a criminal check to the extent possible in that country. A screening may also include, if available, a driving record and credit report. The overall cost, although greater than a typical U.S. screening, is less than an international investigation.
The bottom-line for U.S. employers: An employer should analyze the risk involved, and evaluate what level of check is appropriate. For employers who wish to perform â€œinternational screeningâ€ by filling a position in the U.S., then a U.S. screening firm can generally provide the necessary information, as long as the employer is comfortable with the firmâ€™s data and privacy protection.
ESR 2008 Schedule
February 7, 2008 IPMA HR audio conference–“Avoid Negligent Hiring–New Developments, Best Practices and Legal Compliance.” Details to follow
March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow
June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.
Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.
ESR is pleased to announce new services that are available to US employers:
- 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 now 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.
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.
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)
7110 Redwood Blvd., Suite C
Novato, CA 94945