Employment Background Checks

Best Practices for Handling Social Security Mis-Match Letters

2009-10-29T09:12:00.000-07:00

The Department of Homeland Security (DHS) recently rescinded their proposal to impose a 90-day safe harbor for employers who receive a notice from the Social Security Administration that a social security number being used by their employee does not match the name on file with the Social Security Administration. Large unions and various business groups feared that work-authorized individuals would accidentally get caught up in the fray and be erroneously terminated. After protracted litigation, DHS backed down and rescinded the proposed rule.

Many social security mis-match letters are created as a result of women being married and changing their name to something different than what is on file at the Social Security Administration. Other reasons include typographical errors at the time of hire, individuals who naturalize and change their name, or individuals using a false name that does not match the social security number.

The rule would have given employers 90 days to resolve the matter without incurring any liability for employing an individual who may lack work authorization. The rule would have also required that if you and the employee cannot resolve the discrepancy, then it would have required that you fill out a new I-9 for the employee using documents other than a “List C” social security card. If you failed to do so, you and your company could have been held liable for civil and criminal penalties. Now that the proposed rule has been rescinded, the key question is where does that leave you, the Employer?

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How to Dispose of Consumer Information

2009-10-14T13:33:00.000-07:00

It's important to follow the regulations set out by the FTC pursuant to FCRA Section 628 when it comes to disposing of all consumer information. Paper and electronic reports must be destroyed so it cannot be read or reconstructured. Employers need to show due diligence when a shredding firm is hired. For more information go to: http://www.ftc.gov/os/2004/11/041118disposalfrn.pdf

For best practices when it comes to protecting privacy in the workplace and for best practices when it comes to handling documents that contain PII, see the recommendations from the Privacy Rights Clearinghouse available at: www.privacyrights.org/ar/SDCountyIT.htm

Identity Theft Experts Offer Advice For Job-Searching

2009-09-08T11:09:00.000-07:00

With the unemployment rate rising and living costs going up, more people are looking for new jobs or second jobs. Job seekers often register with employment agencies, check employment ads, mail out unsolicited resumes, network with others, post resumes on job search sites, and often search craigslist.

Unfortunately identity thieves are taking advantage of these uncertain economic times to scam job seekers and gather personal identifying information. The Identity Theft Resource Center offers these suggestions to avoid being victimized:

Read more here

Consumer Report Disclosures

2009-08-20T15:35:00.000-07:00

TALX Corporation, a subsidiary of Equifax Inc., has agreed to settle Federal Trade Commission charges that it violated federal law by failing to provide certain disclosures to users of their consumer reports and to entities that provide information for consumer reports. The proposed settlement requires TALX to pay a $350,000 civil penalty and bars future violations.

TALX sells income and employment history information about consumers to lenders, pre-employment screeners, and others for use in determining their eligibility for credit, employment, or other purposes, which makes it a consumer reporting agency subject to the Fair Credit Reporting Act (FCRA), according to the FTC. The company allegedly violated the FCRA by not providing the “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA,” which notifies users of consumer reports of their statutory obligations, including notifying individuals if the user takes adverse action against them based on their consumer report. The company also failed to provide the “Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA,” which notifies furnishers – entities that furnish information for consumer reports – of their obligations to provide accurate information, correct and update inaccurate information, and reinvestigate consumer disputes.

The proposed settlement requires TALX to provide the required notices to users and furnishers. If TALX provides the notices electronically, it must follow certain specifications to make the notices “clear and prominent.” Specifically, the notices must be unavoidable, of a size and shade and on the screen for a duration sufficient for an ordinary consumer to read and comprehend them, easily printable, and presented on the principal screen or landing page where the disclosure is relevant. These requirements are designed to ensure that the notices will be effective in communicating the information online.

The proposed settlement also contains record-keeping and reporting provisions to allow the FTC to monitor compliance with the order.

The Commission vote to authorize staff to refer the proposed complaint and stipulated final order to the U.S. Department of Justice for filing on the FTC’s behalf was 4-0. The documents were filed in the U.S. District Court for the Eastern District of Missouri.

NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. A complaint is not a finding or ruling that the defendant has actually violated the law. Stipulated court orders are for settlement purposes only and do not necessarily constitute an admission by the defendant of a law violation. Stipulated orders have the force of law when signed by the judge.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,500 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

Review of Criminology Study on “Redemption” for Purposes of Employment

2009-08-10T11:10:00.000-07:00

A new study just released by researchers from Carnegie Mellon University has attempted to devise a model to quantify what most people assume intuitively – that the relevance of a criminal record for employment recedes over time when a person is not re-arrested. The study looks to develop a methodology to measure how much time must pass before an applicant with a criminal record is no greater risk than an applicant without a criminal record. (Blumstein, Nakamura, “Redemption in the Presence of Widespread Criminal Background Checks", Criminology, Volume 47, Number 2 (2009))

read more here

How Job Seekers Can Get More Interviews

2009-07-24T11:54:00.000-07:00

In our current economy, job seekers have to be creative in getting a new job. More applicants are running their own background checks.

The majority of Human Resource managers that we speak to report that if an applicant submits their own background check along with their resume, that they are "very likely" to stand out from the crowd. They are also more likely to get an interview.

While that doesn't guarantee you a job, you can't argue with the fact that it gets your foot in the door, and these days that's better than nothing.

It's easy to do ... you can run your own report online and get the results within a couple of days. Just give us a call.

You can also find out more about background checks and your rights at http://www.privacyrights.org/fs/fs16a-califbck.htm#1

HR 3149 Proposes to Amend the FCRA

2009-07-13T13:04:00.000-07:00

It appears that HR 3149 was introduced yesterday and Referred to Committee. HR 3149is a bill set to amend the Fair Credit Reporting Act (FCRA) to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.

As an industry, pre-employment credit reports are only suggested to be used when necessary and only for the responsibilities of that particular position. In fact, the EEOC and FCRA already have provisions that the adverse information can only be used if it fits within the scope of the job. Most background screening programs only impliment this type of check as part of a much broader search.

Section three of the bill provides some exceptions but does not take into account most of them. We suggest you spend some time reading this bill and write your congressperson to oppose it. We agree the intent of this bill is to get more people to work. However, as with most legislation, there are some unintended consequences.

There must be provisions for positions that could be negatively effected by a person with a poor credit history. This 111th Congress has a horrible track record already for not even reading bills before voting. Reach out and make a difference, make them read it, make them amend it!

New York Enacts Social Security Number Protection Law

2009-07-02T10:55:00.000-07:00

Consistent with the New York state government’s attempt to counteract the growing threat of identity theft, on September 26, 2006, Governor Pataki enacted legislation placing limits on the use and dissemination of Social Security account numbers (the “NY Social Security Number Protection Law”). Enacted alongside two other measures aimed at thwarting identity theft, the NY Social Security Number Protection Law will impose harsh penalties on companies that fail to protect the confidentiality of Social Security numbers in their possession. These obligations become effective January 1, 2008. This Commentary provides a brief overview of the NY Social Security Number Protection Law.

Social Security Number Protection Statute

The NY Social Security Number Protection Law applies to all nongovernmental bodies, including individuals, corporations, and partnerships. Generally, the legislation restricts the use and communication of Social Security numbers in order to maintain their confidentiality and make it more difficult for criminals to acquire the nine-digit number that uniquely identifies almost all Americans. The statute defines “Social Security number” as the unique number issued to citizens and residents of the United States by the federal Social Security Administration. The statutory definition also encompasses any number derived from an individual’s Social Security number.

The impact of this broad definition is far-reaching. For example, records containing only part of the nine-digit Social Security number also fall under the law’s scope. A great number of businesses currently use the last four digits of a Social Security number. These businesses will have to implement new policies in order to ensure compliance. Generally, the statute regulates two activities: (i) the communication of Social Security numbers; and (ii) the maintenance of records containing Social Security numbers.

Read the rest

H.R. 2401: No fly, no buy could set dangerous precedent

2009-06-30T15:51:00.000-07:00

Representative Carolyn McCarthy introduced H.R. 2401: No Fly, No Buy Act of 2009. You Can view the full text here. The bill states, "To increase public safety and reduce the threat to domestic security by including persons who may be prevented from boarding an aircraft in the National Instant Criminal Background Check System, and for other purposes."

To simplify, the TSA's no fly list, which currently has over 1 million names, will be combined with the National Instant Criminal Background Check System used to authorize the sale of firearms.

Here is Rahm Emanuel explaining this process in-depth.

Hold up Rahmbo, did you just say, "if you are on the no fly list because you are known as maybe a possible terrorist you cannot buy a hand gun in America." Read that again, "you are known as maybe a possible terrorist." So let me get this straight, this bill will diminish a citizens natural-born right to own a hand gun because you think he might be? Not good enough. Where did the 5th amendment go?

Before we move on, let's take a closer look at the TSA's current No Fly list. The list is an ineffective joke, there's no other way to put it. Just look at any number of these cases involving the No Fly List and you'll quickly see how ineffective it is.

Here is a document outlining numerous cases of innocent people harassed at the airport for being on the list. These are official reports supplied by a freedom of information act
http://epic.org/foia_docs/airtravel/letter1.pdf

TSA searches, detains 5 year old because his name was on no-fly list
http://www.boingboing.net/2008/01/09/tsa-searches-detains.html

60-Minutes: Average Joes on No-Fly List

Given those instances, it's obvious the list is ineffective at best. Unfortunately as more DHS reports (which outline who the government views as terrorists or extremists)are released one could only conclude those will serve as guidelines to continually add names to the no fly list, therefore robbing citizens of their second amendment based on their views without a judge or jury. The Department of Homeland Security's Lexicon outlines who needs close surveillance for local law enforcement officials. You can see my analysis on the DHS Lexicon in my previous article here.

I have two big problems with these lists. The first being, there doesn't seem to be a clear cut way for an innocent person to get off this list. Could you imagine living your life as well and clean as could be only to be sideswiped by a list you have no business being on? My second problem is this, why aren't you notified? Why must you find out this horrendous surprise at the airport? If you really are a threat to America, why aren't you questioned the moment your added to the list? Why would our government allow over 1,000,000 known or suspected terrorists to roam around the States without interference, I don't know, but I'd sure like an answer.

by Tony Pacheco, Kansas City Headline Examiner

FBI’s Name Check Program Will Eliminate Backlogs Says USCIS

2009-06-25T08:38:00.000-07:00

Immigrants seeking to live and travel to the United States will now get better service from the FBI. The US Citizenship and Immigration Services (USCIS) announced on Monday that the two organizations had “met all milestones” to improve and make the process of checking names against the FBI database, quicker.

The FBI’s National Name Check Program is used by the USCIS, but also by other agencies to run background checks on people who want to work for the federal government, attend a White House function, or obtain a Green card or naturalization, according to the FBI’s website.

But processing all those names clogged the system after September 11, 2001. The FBI says that there was a surge on name checking requests from the USCIS creating a backlog, which created monumental delays in the application process for the USCIS as they waited for the FBI to clear people’s identities. There were some 349,000 names needed to be processed in March; of that, 150,000 names had been pending for more than six months, according to the USCIS.

The delays sparked public outrage after the Justice Department inspector general did an audit back in 2008 and found that the FBI’s Name Check Program, “[relied] on outdated technology and poorly trained workers. Some immigrants awaiting resolution are denied the right to work or to study. And, significant in an election year, they are denied the chance to vote.”

Soon after the Department of Justice’s audit, the Washington Post published an editorial on June 14, 2008 accusing the FBI of being “incompetent” and for “punishing immigrants who play by the rules.”

Here is a snippet of the Post’s editorial, “The Name Game.”

WHAT’S IN a name? For Ali Rahimian, it may be the difference between a quick path to citizenship and a two-year sentence to immigration purgatory. Dr. Rahimian has lived in the Washington area for 17 years, and, among other useful pursuits, has helped operate a free clinic for people who lack medical insurance. Two years ago, Dr. Rahimian, who was born in Iran, applied to become a U.S. citizen. His application was sent to the FBI for what should have been a routine background check, and Dr. Rahimian said he has not heard from the bureau since.

The FBI’s Assistant Director William Hooton wrote a letter to the editor of the Post that appeared on June 19, 2008 defending his agency and saying that after 9/11 the “then-Immigration and Naturalization Service resubmitted 2.7 million names to be rechecked on a much broader criterion: whether they had been referenced in a negative manner in an FBI file,” Hooton wrote.

The FBI teamed up with the USCIS to finds solutions to the backlog in April, 2008, just two months before the Post’s editorial.

Monday’s announcement included a list of what the FBI and USCIS have done to solve the backlog problem including hiring more people to do the name checks, offer more training to current agents who work in this department, and by refining the search criteria.

“Our close partnership with the FBI has resulted in the accomplishment of this significant achievement with national security as its foundation,” said USCIS Acting Deputy Director Michael Aytes. “This continued working relationship will help to ensure that name check processing is accomplished as quickly as possible without compromising security concerns.”
By Dolores M. Bernal, NEWS JUNKIE POST

New Background Check Law Passed in California

2009-06-17T15:33:00.001-07:00

Background checks can save employers in all industries from many problems, but they are particularly important in certain lines of work. Employees that will be responsible for the well being of others have a larger chance of effecting the lives and health of others and, therefore, should always be subject to a pre-employment background check.

Read more

New Background Check Law Passed in California

2009-06-17T15:33:00.000-07:00

Mandatory Use of E-Verify For Federal Contractors Delayed

2009-06-09T15:21:00.000-07:00

The implementation of regulations requiring federal contractors and subcontractors to use E-Verify has been delayed again until September 8, 2009 so that the Obama administration can review the proposed rules.

E-Verify is a free, internet-based system that allows employers who are enrolled in the E-Verify program to confirm the legal status of new employees. Although use of E-verify is currently voluntary, the proposed regulation will make its use mandatory for all federal contractors who are awarded a new contract after September 8, 2009 that includes the Federal Acquisition Regulation E-Verify clause.

Additional information on the proposed E-Verify regulations can be found here.

New Carnegie Mellon Study Provides Empirical Basis For Employers To Use in Assessment of Prior Criminal Records

2009-05-28T14:37:00.000-07:00

The new study, which appears in the current issue of Criminology, estimates that after five years of staying clean an individual with a criminal record is of no greater risk of committing another crime than other individuals of the same age. The research comes at a time when President Barack Obama's crime agenda includes breaking down employment barriers for people who have a prior criminal record, but who have stayed clean since their earlier offense.

"In the past, employers had no way of knowing when it might be safe to look past a criminal record," said Alfred Blumstein, co-author of the study and the J. Erik Jonsson University Professor of Urban Systems and Operations Research at Carnegie Mellon's H. John Heinz III College. "Hiring an ex-offender was a totally arbitrary decision. We believe our model can change that and help provide employers with data in making such decisions. Or it can be used by state criminal-record repositories in deciding when a prior arrest is too 'stale' to warrant distributing." Blumstein's co-author is Kiminori Nakamura, a Ph.D. student at the Heinz College.

The issue of employing ex-offenders has become more of a problem, as a vast majority of larger U.S. employers now perform criminal background checks, Blumstein said. He noted that advances in information technology allow criminal records to be kept longer and to be distributed easily, and employers are concerned about liability risk if the former offender commits a new crime. Blumstein said this makes it difficult for a large number of people who have committed crimes when they were much younger, but have stayed clean since then.

The study, funded by The National Institute of Justice, used criminal-history records of more than 88,000 first-time offenders in New York in 1980. Most committed new crimes within the first few years after their initial arrest, but only a small minority had a new arrest after staying clean for at least five years.

After determining whether the offenders had remained clean during the ensuing 25 years, the data on the 1980 offenders was compared against two comparison groups. The study determined that after about five years those in the offender group were at or below the risk of arrest as people in the general population who were the same age. A more demanding comparison is with people of the same age who had never been arrested. Those with a prior record had to stay clean longer, but their risk could be close enough even to that low-risk group.

Future studies will address other states and sampling years to assess the consistency of results. This effort is intended to develop standards for employers and record repositories to help reduce the handicaps imposed on those who had committed a crime when they were younger.

Criminal Background Check Bill Passes Senate

2009-05-26T08:52:00.000-07:00

The California State Senate today (33-1) approved legislation to help protect children involved in youth organizations from sexual predators and other violent criminals. Senate Bill 447, authored by Senator Leland Yee (D-San Francisco/San Mateo), would reform the criminal background check policy at the approximately 36,000youth organizations and human resource agencies across the state that work with children and vulnerable populations.

Such organizations, including the Boy Scouts and youth soccer leagues, are currently required to conduct criminal background checks of their staff and members. Each group appoints a "Custodian of Records" to review the background checks for their organization and assess if a person´s criminal history poses a potential danger to the population the agency or organization serves.

Read more here

New computer program checks school visitors

2009-05-19T08:18:00.000-07:00

MEMPHIS, Tenn. — Shelby County schools are installing computer software that alerts staff to any visitor who is on a sex offender registry.

The V-soft program by Houston-based Raptor Technologies was tried at three schools last year, then school officials bought it for all 51 schools.

An office assistant scans the driver's license of all visitors into the program. If a person's name and photo match a sex offender on any registry nationwide, the system alerts the operator. If the office assistant verifies the match, a text message is sent to school security officers, who go to the office.

Schools security director Gary Gitchell told The Commercial Appeal the system so far has found one sex offender who had no reason to be at a school. He was arrested.

reported by chron.com

Handling Resignation Letters

2009-05-13T09:40:00.000-07:00

Question:
We just received a resignation letter from an employee with a five week notice eriod. We'd like to let her go immediately and pay her for two weeks. We do not have a formal resignation policy, but two weeks notice is our standard practice. Does anyone see any concerns with paying her out only two weeks when she offered five weeks notice?

Answer:
"Code of Conduct" is the operative word here, in lieu of a stated policy.If you can document multiple instances of a two week period being the standard practice, so you actually do in fact have a policy in place, not to mention that once you accept the 5 weeks, you start to go down a slippery slope that effectively voids your existing de facto 2 week policy.

My feeling is that you will get less than zero performance from her for even the two week period, especially since she is going to blab to everyone about whatever her new adventure is, so the sooner you get her down the road the better.

Frankly, if you don't need her to train her replacement, I'd pay her for two weeks and let her go because anything other than giving her what she wants is going to result in poisoning the workplace while she is there.

New ways to beat drug tests?

2009-05-07T08:39:00.000-07:00

Quick Fix synthetic urine 5.7 which is the newest version.

The Quick Fix synthetic urine is premixed laboratory urine designed to protect your privacy during a urinary test. The Quick Fix is unisex so a male or female can use it to pass nicotine tests. To ensure passing a urinalysis, the Quick Fix contains all the ingredients normally found in urine and is balanced for pH, specific gravity, creatinine, and several other urine characteristics.

The Quick Fix synthetic urine bottle comes with an attached temperature strip and heating pad to ensure the sample is at body temperature. The Quick Fix contains two ounces of synthetic urine as required by guidelines. If a lab demands more than two ounces, that demand is operating outside of most guidelines. Request the lab record the volume of the sample before disposal and be sure to document the error.

"Quick Fix by Spectrum Labs is designed to keep your medical history private and will cover nicotine, pregnancy, and ailments such as diabetes. Also great for those who experience a shy bladder."

Each bottle is for one use only. Not intended for unlawful use.

Product Directions:
Heat Quick Fix in advance and simply pour contents into sample cup. Quick Fix temperature must be 90°-100°F. The Quick Fix container can be microwaved up to 10 seconds for initial heat. If the temperature remains out of range after first eating, repeat procedure (read the blue dot on temperature strip). If the bottle is out of temperature range after two heatings, cool down (over heated) and retry. Using the enclosed heater pad alone will require approximately an hour to heat to 90°-100°F (see enclosed heater pad for heating instructions). Attach heater pad with tape or rubber band to the bottle, opposite the temperature strip. The heater pad will last up to six hours. Coloration may vary from batch to batch. Shake bottle before and after heating. If unused, sample can be reheated for random usage.

Social Media Poses Legal Risks to Banks

2009-05-04T17:31:00.000-07:00

Redondo Beach, CA – Banker and social media author, Jesse Torres, today warned banks about using social media tools as part of the applicant screening process. Whether used as a hiring tool or an ongoing employee monitoring tool, social media platforms such as Facebook and MySpace may create substantial legal problems for banks that make use of these tools as part of their background check procedures.

“Social media tools are a great resource for determining the personal traits of employees. Through postings, photos and other information contained in an applicant’s public profile, potential and existing employers can learn much more about an applicant than they can through a resume,” said Mr. Jesse Torres. “Unfortunately, state and federal employment laws have not kept pace with the capabilities of Web 2.0 and any organization that relies on such information is traveling into unknown and potentially litigious territory. Unless laws have kept pace with technology, which is rare, courts apply existing statutes and case law to current litigation which can result in inconsistent outcomes.”

Researchers have found that almost 40% of employers have used Facebook and other social networking sites to gather information on job candidates and that more than 80% of employers consider negative information discovered when making hiring decisions. A difficult economy may provoke adversely affected applicants into filing employment-related complaints as their employment options may be limited.

“While it has been said that the Internet is the new resume, banks should carefully craft their hiring and monitoring procedures - especially those that utilize social networks. For example, use of LinkedIn would likely be acceptable since it is primarily used for professional purposes. However, other platforms such as Facebook and MySpace may be undesirable,” said Mr. Torres. “While the use of these sites may provide helpful information relative to determining the true character of the candidate or employee, certain information contained on public profiles may expose the bank to litigation.”

Read more

What is E-Verify?

2009-04-23T10:15:00.000-07:00

E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.

Read more here

ESR’s Second Annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2009

2009-04-17T14:55:00.000-07:00

Employment Screening Resources (ESR), a leading national employment screening background firm, released its "Second Annual Top Ten Trends in the Pre-Employment Background Screening Industry" for 2009 today. Although issues from 2008 remain on the list, the 2009 trends reflect increasing concerns over the over the use of Facebook and similar sites, lawsuits looming over inaccurate Background Screening reports, increasing government scrutiny of the screening industry and privacy and security issues.

"In the current legal environment, businesses want to make sure they are not only exercising due diligence but are also ahead of the curve on legal issues," said Lester S. Rosen, attorney at law and founder of ESR and author of two books on background screening. "The quickest way to get sued is to not understand the legal environment and latest trends surrounding background checks and employment."

Rosen believes that the federal and state governments will require more background screening in 2009, especially in sensitive jobs, and that more businesses will make Pre-Employment Background Screening a requirement for the job. The increased use of Applicant Tracking Systems will lead to "one button" clicks for background checks, he says.

"At the same time, consumers are worried about their privacy. That’s why data protection and accuracy have become so critical. The use of social networking sites like Facebook and MySpace are another minefield for employers," says Rosen. "We have identified 10 Trends to help alert employers on what to expect in 2009."

Hot topics for 2009 include tighter government regulation, privacy concerns, and controversy over sending sensitive data offshore for processing, increasing demand for accurate criminal record reporting, and the probability of more lawsuits against both employers and background screening firms. Not that the 2008 trends outlined in the January 2008 ESR newsletter are no longer relevant, but a shifting world has reshuffled the challenges facing employers, job applicants and screening firms.

1. More Government Regulation. Likely to increase in 2009 are the requirements by federal and state governments for more background checks in sensitive industries – such as child care workers and certain health workers. Another area where the government requires checks is verification of the eligibility of a new hire to work by using the E-verify program. Although litigation has been filed, the announced rules require employers with certain federal government contracts to utilize the E-verily program starting in 2009. Along with the federal government, the states are becoming increasingly involved in regulating screening.

2. Privacy and Accuracy. The subjects of privacy, accuracy, and fairness will also be major issues for 2009. Privacy Times newsletter, for example, led off its December 2008 issue with an article criticizing the screening industry. The letter noted that a coalition of legal aid groups has called on the Federal Trade Commission to take enforcement actions against background screening companies for “widespread noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.”

The report was especially critical of the use of criminal databases that can falsely accuse an innocent person of being a criminal, and the failure of some screening firms “to take into account the fact that criminal identity theft is unfairly tarring thousands of job applicants.” A leading cause of inaccuracies is matching innocent job applicants to criminal records based upon the same or similar name in a database, without re-verification of the record at the courthouse. A new organization called Concerned CRA’s has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.

3. Second chance for ex-offenders: Unless as a society, we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records. At the same time, placing the wrong person in the wrong job can be a disaster and cause untold grief. As a result of Title VII and notice from the EEOC, employers are well advised to review their hiring practices to ensure that they are not discriminating against members of protected classes by automatically denying employment without considering whether there is a business justification for disqualification based upon the crime and the job. This will continue to be a developing area in 2009. One example are the new laws passed by the State of New York that become effective this year that place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification not to hire a person. The New York law also requires that notice of various rights be provided to job applicants (See an explanation of the New York laws in the December, 2008 ESR Newsletter.

4. Consumer Protection Litigation: As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation. The may include class action lawsuits against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act, and accuracy requirements in the federal law. Since database searches can result in false negatives (meaning a criminal is missed) as well as false positives (meaning an innocent person is labeled a criminal), it is probable that employers and screening firms that rely upon databases may be the subject of litigation where a database search failed to locate a dangerous person.

5. Impact of the recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment history or educational degrees. Another recession related trend may be the increase in applicants who are willing to perform their own background checks in order to present to employers a self-certification that their credentials are for real. Since more temporary employees and Independent Contractors are hired during a recession, the issue of screening non-employees will continue to be important.

6. Data security and data breaches and Offshoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection. Closely related is the continuing issue of employers and screening firms offshoring consumer data to India or other similar places for cost savings. Once data leaves the United States., it is beyond U.S. privacy protections. A new organization called Concerned CRA’s has taken a stance against offshoring such data without notification to consumers. The use of home-operator networks also presents an unnecessary risk to privacy as well. There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.

7. Accreditation by the NAPBS: The non-profit trade organization for the screening Industry, the National Association of Professional Background Screeners has announced the introduction of an accreditation program. NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the process this year.

8. Social network sites: The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates. The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures. Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy. Stay tuned as more courts give their opinions on this issue.

9. Integration of services: With the advent of “Web 2.0,” it is likely that technology will play an even bigger role in the coming years. Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.

10. International background checks: In 2008, we observed that, “With mobility of workers across international borders, due diligence is no longer limited to just what an applicant has done in the United States. Although there are numerous practical and legal challenges as well as data and privacy concerns, international background checks are becoming very accessible to employers.” That will continue to be the trend in 2009 as well.

The 2008 list issued in January, 2008 can be found at: http://www.esrcheck.com/newsletter/archives/January_2008.php

Mr. Rosen has authored two books: The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program." He is a frequent presenter nationwide at human resources, fraud and security conferences, and was the chair of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair. He has testified as an expert in negligent hiring cases in California, Florida and Arkansas.

Background check legislation introduced in congress

2009-04-09T13:36:00.000-07:00

According to a report issued by the National Burglar and Fire Alarm Association on Wednesday, legislation recently introduced in congress could provide installation and monitoring companies with the resources to ensure the employees they hire aren’t a threat to the homes, businesses and families they’re suppose to help protect.

The bill, the "Electronic Life Safety and Security System Federal Background Check Act of 2009" (HR 1939), was introduced by Rep. Blaine Luetkemeyer (R-Mo.) and would give these companies the ability to check a potential employee’s criminal history against the National Crime Information Center or NCIC, a federal criminal database.

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Critical Information about Death Records

2009-03-19T14:38:00.000-07:00

Many may not realize this, but a Social Security Death index search, while seemingly the last word (most perceive this because it is most definitely the “root” death record repository for the nation) it is not, actually.

What most do not understand about the limitation of this repository is that it is “claim-dependent.” That means that, until a “next-of-kin” files for the $250 Social Security Death Benefit, no entry as to the death is made into the system, rendering it useless as a ‘competent’ repository, but certainly good as “one place to search.”

That means, ostensibly that there is no “one-stop shopping” place for death searches, and almost certainly assures anyone interested that still the best place to search for death files is in the jurisdiction where the death occurred, as the law mandates record keeping at those levels, where no publicly available index (except the social Security Death Index) exists on a national basis, excepting law enforcement, which like the SSDI has its limitations, as well.

Is Credit Really Necessary for a Background Check?

2009-03-18T17:01:00.000-07:00

This is a question we get all of the time, and the answer is YES.

We recommend Credit Reports as a "societal responsibility attitude indicator," as proven by the Rand Corporation and Stanford Research Institute when they did their research in the late 70s.

These, in addition to driving histories show, unequivocally societal responsibility attitudes, which translate directly to the workplace.

Credit reports from the practical sense are valuable, for other reasons, not the least of which is that when an employee has the telephone ringing off the hook because of collection problems, they tend to not sleep very well which affects performance.

As the provider to banks and financial institutions, I can say that 99% of our clients use credit reports as a cultural determinant, and about 90% believe that the quality of the maintenance of a person's financial dealings directly relate to the quality of their organizational skills and performance.

Of course, there are those who may disagree, I'm just reporting what I've seen over the last 29 years in the employment screening business.

Weighing in on the legal aspects of employer wellness programs

2009-03-06T09:21:00.000-08:00

As Dr. Lena Edwards explained in her article above, "The Increasing Girth of our Labor Market: What is the Solution?" the health consequences of obesity are taking a heavy toll on U.S. employers. Since a majority of health care costs are attributable to preventable illnesses, many employers have adopted wellness programs to reduce health care costs and absenteeism.

However, employers should be aware of unforeseen legal consequences that may arise when implementing these well-intentioned programs. Before distributing a health risk assessment or lowering health insurance premiums for non-smokers, you might want to take some tips from the hypothetical cautionary tale of the Sunnyside Diner.Sunnyside Diner, which employs 20 employees, implemented a wellness program to reduce health care costs. Sunnyside discounted health insurance premiums for those employees who participated in the wellness program and achieved a cholesterol count lower than 200.

Sunnyside also implemented an anti-smoking policy that made smoking a terminable offense regardless of whether it occurred at work or away from work. It fired four employees for refusing to submit to the company's mandatory smoking breath test to determine whether they smoked cigarettes. Has Sunnyside exposed itself to any legal risks by implementing its wellness program or its anti-smoking policy?

Yes. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits group health plans and insurers from discrimination in eligibility, benefits, premiums, or contributions because of an employee's or dependent's medical condition, disability, evidence of insurability, or other health factors. Sunnyside's wellness program is subject to HIPAA because it relates to a health plan, it offers a financial incentive, and the financial incentive depends on an individual's ability to satisfy a standard related to a health status factor (an employee's cholesterol count).

Therefore, the reward must be available to all similarly situated individuals. Here, some participants may be unable to achieve a cholesterol count under 200 due to a health factor or disability, and the plan does not make available a reasonable alternative standard for obtaining the premium discount. Thus, the premium discount violates the nondiscrimination requirements under HIPAA because it may require an individual to pay a higher premium based on a health factor or disability outside of the employee's control.

Furthermore, the Kentucky Civil Rights Act (KCRA) prohibits employers from discriminating against smokers. The KCRA makes it unlawful for an employer to discharge, refuse to hire, or otherwise discriminate against any individual with regard to compensation, terms, conditions or privileges of employment because the individual is a smoker. It is clear that the KCRA prohibits the type of anti-smoking policy implemented by Sunnyside. A Kentucky employer attempting to implement and enforce such a policy would likely encounter legal challenges and litigation expenses.

Even though Sunnyside Diner's wellness program violated HIPAA, it can be modified to comply with legal requirements. Sunnyside could offer the premium discount to employees simply for participating in the wellness program, regardless of whether the participants achieved a lower cholesterol count. Alternatively, Sunnyside could include the following statement in all of its plan materials describing the program: ''If it is unreasonably difficult due to a medical condition for you to achieve a cholesterol count under 200, or if it is medically inadvisable for you to attempt to achieve a count under 200, call us at the number below and we will work with you to develop another way to get the discount.''

Implementing a non-smoking policy is trickier because the KCRA does not allow the employer to prohibit employees or applicants from smoking outside the course of employment. However, it would be legal for an employer to implement a program that reimburses employees for the costs of smoking cessation programs without regard to whether an employee quits smoking.Employers must also remember their responsibilities under the Americans with Disabilities Act (ADA). The ADA requires employers to offer a reasonable accommodation to an employee with a known disability, and it prohibits employers from making medical inquiries or requiring medical examinations (unless job-related and consistent with business necessity).

It's also unlawful under the ADA to take any adverse employment action based on an individual's actual or perceived disability. An employer may conduct medical examinations and activities that are part of a voluntary wellness and health screening program. Therefore, offering employees the opportunity to voluntarily participate in health screening programs for cholesterol monitoring is not likely to violate the ADA, as long as there is no penalty for not participating.If you are thinking about designing a wellness program, remember that participation in the program must be voluntary, you must keep confidential all information that you obtain, and you cannot use any obtained information to discriminate against an employee.Do you have a question about employment law issues? E-mail Wendy Becker at wlb@gdm.com and your question may be addressed (anonymously, of course) in a future issue.

Wendy Becker, a member in the Lexington office of Greenebaum Doll & McDonald PLLC, advises and defends employers in employment-related matters. She can be reached at wlb@gdm.com. Alexis Kasacavage is an associate in the Labor and Employment group at Greenebaum, Doll & McDonald PLLC.