Article from the ESR Newsletter and Legal Update
A critical issue for employers is the nature of the employee-employer relationship. Employers typically hire on an "at will" basis, meaning there is no employment contract and either side can terminate the relationship. Of course, nothing is that simple. Employers are normally advised to be very clear in all stages of the recruiting, interviewing, and hiring procedures that no promises or contracts are made, either expressed or implied, that modify the at-will arrangement. Again, nothing is that smooth. An applicant may argue that, by certain employer's actions or deeds, there is an implied promise of future employment that can only be terminated "for cause" as opposed to "at will." Examples of instances where an employee may argue they are no longer "at will" are listed below.
�Language in an interview that says "if a person does well, the company will take care of them," or other similar promise of special treatment on the part of the employer.
�Language in the employee manual that creates a "probationary period." The implication is that if a person passes the probationary period, they have vested or obtained a more secure status and there must be "good cause" to terminate rather than a right to terminate "at will."
�Employee manual language that sets out a series of progressive disciplinary steps where an employee has a chance to improve performance. The implication is if they meet the standards, then the person is no longer "at will." Employers could add language that restates that nothing in the progressive discipline system modifies the at-will nature of employment, but it still can create issues.
�A listing of actions or omissions that are grounds for discipline or termination. The argument is if one of these enumerated acts or omissions is not committed, then the employer needs cause to terminate.
�When an employee has been with the employer for a period of time and has received promotions, regular pay increases and good performance reviews, the employee can argue he or she is no longer at will.
Along with appropriate statements in the application, the employee manual is also a critical tool to reinforce the "at will" nature of employment.
It is also necessary to insure that everyone with hiring responsibilities is trained not to make statements that imply a commitment beyond "at will." There are also other exceptions to the "at will" status, such as civil service employment, collective bargaining agreements, or public policy exceptions to "at will" status.
From the perspective of a Safe Hiring Program, maintaining the "at will" relationship can be vital to an employer in the event issues arise related to workplace violence or misconduct, or it is later discovered the employee made material misstatements or omissions during the hiring process. Even though an employer may have grounds to terminate based upon the misconduct or misrepresentation, the "at will" status will assist the employer's position.
(Excerpt from The Safe Hiring Manual, chapter 18 on "Important 'After Hire' Issues.") See Safe Hiring Manual
Article from the ESR Newsletter and Legal Update
Recently, at a software conference for major online business connecting services, apparently the suggestion was made that profiles maintained by a candidate on such an online business service are more accurate than the resume maintained by the same candidate.
Looking at business connection sites during the recruiting or selection stage can certainly be another tool for HR or recruiting to try to differentiate a large group of candidates and whittle it down to a smaller group. Even then, there are significant issues to keep in mind, such as the potential for discrimination.
However, in terms of accuracy, keep in mind that if a person lies on a social networking site, there is no direct consequences. These sites do not contain a comment area where others can disagree, or warn employers that qualifications are overstated. In addition, colleagues may not even know that an applicant has lied. If an applicant has listed a certificate or educational accomplishment that is not true, exactly how are colleagues suppose to know that, much less bring it to anyone's attention. There certainly would be no mention made of past criminal records or civil suits for things such as harassment or trade secret theft. Those things are usually not going to be volunteered on a business connection site.
In addition, the suggestion without metrics that people do not lie on a social network site because others will view it will not likely be much of a defense in court if a firm hires a fibber, and it turns out a background check costing a few dollars would have revealed it.
The bottom line: To a certain extent, using these sites may be helpful in deciding who to hire, but it does not replace the employer's due diligence obligations. The fact remains that there is nothing as effective as actual verification of a candidate's claimed experience. The Internet may provide tools for sourcing candidates, but it simply does not provide due diligence.
For more information on the use of social network sites and employment, see ESR Social Networking Blog Entry
Article from the ESR Newsletter and Legal Update
No discussion on recruiting these days is complete without an analysis of how the Internet is used for sourcing candidates. From social networking sites such as MySpace or Facebook, to blogs, Twittering, online videos, and business connection sites such as LinkedIn or Plaxo, recruiters have become focused with laser-like intensity on how to make use of these sites.
What is sometimes overlooked in the rush to use the Internet to recruit is the one question that needs to be asked first: What are the legal risks in using the Internet for recruiting, and how do we manage those risks?
First, allegations of discrimination is one critical area where employers and recruiters can find themselves in hot water when utilizing social networking sites such as MySpace and Facebook (sometime shortened to "MyBook"). Recruiters may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by a Facebook or MySpace search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as "Too Much Information" or TMI.
The problem is that once a recruiter is aware that an individual is a member of a protected group, it is difficult to claim that the recruiter can "un-ring the bell" and forget he or she ever saw it. It could be argued that if a passive candidate is passed over because of discriminatory criteria revealed on a social network site, they can be harmed, since they did not even know they were disregarded and are none the wiser. The problem with that approach is three-fold. First, discrimination and civil rights laws would likely still apply, even in recruiting passive candidates. Secondly, there are few secrets in the world. If a firm is using discriminatory criteria, a member of the recruiting team who feels uncomfortable about such a practice may well say something - either publicly on the web, or within the organization. Third, it can be argued that discriminatory criteria were being used if it turns out that the entire workforce happens to be homogeneous and does not include members of protected classes.
Of course, the analysis is complicated by the fact that the aggrieved individual may have placed the information on the web themselves. However, it would be challenging to suggest that a person somehow consented to discrimination by placing material on the web that was then used illegally by recruiters. Until courts rule on these issues, employers can only try to apply established legal concepts to their online recruiting efforts.
The issue for employers and recruiters is how to protect themselves from allegations of discrimination if no further action is taken after the recruiter discovers on the Internet that a person is a member of a protected class. For employers that want to use social network sites to screen a current candidate, the safest path for the use of social network sites is to obtain consent, and only search once there has been a conditional job offer. This helps ensure that impermissible information is not considered before the employer evaluates an applicant using permissible tools, such as interviews, job-related employment tests, references from supervisors, and a background check. At that point, the reason for searching social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about your firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.
For sourcers and recruiters who are looking for passive candidates, however, that approach does not apply. By definition, the recruiter does not have consent, since sourcing is at the start of the hiring process. Employers and recruiters in the sourcing stage may want to consider some of the following:
1. Ensure each position has a detailed job description written for that specific position that clearly lays out the essential functions of the job and the knowledge, skills and abilities (KSA) required for the position.
2. Have a clear internal policy that internet sourcing is NOT being used in violation of federal and state discrimination laws and that only factors that are a valid predictor of job performance will be considered, taking into account the job description and the KSA require for the job.
3. Have documented training on legal recruiting techniques. The training should include clear information on what would constitute a discriminatory practice.
4. Have a clear procedure that outlines key words, criteria, and methodology for sourcing, so recruiters can demonstrate that they are searching for objective requirements to be considered as part of the pool. Even better is if the criteria being used can be measured or have a metric attached.
5. If someone meets the objective requirements but is not placed in the pool of potential candidates for other reasons, a recruiter may want to note why the exception is being made. For example, if the social networking website demonstrated behavior inconsistent with business interests, that should be noted.
Another issue is whether the websites utilized are authentic. Social network sites need to be taken with a grain of salt. Employers need to be careful that the site they are looking at actually refers to the applicant. Many Americans have "online computer twins" - people with similar names. Another problem is "cyber slamming," online smearing usually done anonymously, such as derogatory comments on websites or even setting up a fake website that does not truly belong to your applicant. Yet another issue is whether the statements made are even true and credible, keeping in mind that the idea behind these sites is "friends talking to friends," and users of these sites have been known to embellish.
A problem yet to be fully explored by the courts is privacy. Contrary to popular opinion everything online is not necessarily fair game. Certainly if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that - a place to freely socialize. The argument would be that in their circles, it is the community norm, and a generally accepted attitude, that MySpace or Facebook pages are off limits to unwelcome intruders, even if the door is left wide open.
Until the courts sort this out, one thing does seem fairly certain - if an employer uses subterfuge to gain access, such as by creating a fake online identity just to penetrate a social network site, then the privacy line has probably been crossed. Of course, if using a screening firm to search the Internet, the federal Fair Credit Reporting Act (FCRA) would apply.
The bottom line as always when using the Internet for employment related matters: Proceed With Caution. There has yet to be clear law or court cases that set forth how to proceed in this area. In the meantime, employers and recruiters may want to approach the Internet with some caution before assuming that everything is fair game in the pursuit of passive candidates.
For more information on due diligence in hiring, contact Jared Callahan at ESR at 415-898-0044 or jcallahan@ESRcheck.com
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A new study just released by researchers from Carnegie Mellon University has attempted to devise a model to quantify the relevance of a criminal record for employment on the basis that the importance of a past criminal record 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))
The study, based upon limited data just from the state of New York, found that with time, a person with a criminal record was no greater threat than persons without a criminal record. It suggested that depending upon the offenses included in the study and the age at which the offenses were committed, that after approximately 4½ to 8 years without further arrests, an offender had a minimal risk of re-offending. Of course, the more violent the offense, the longer the time would be required before a person could be considered “redeemed.” Serious crimes such as murder, rape, or child molestation were not part of this particular study, but presumably more serious crimes would have a different result.
Although there is a temptation for the press to take “sound bites” from the findings, it is abundantly clear even from the authors of the study themselves that this is only a beginning. The authors were clear that much more study was needed and that there are substantial issues still to be addressed. The authors’ characterization that the study represents a “significant step forward in an area where so little is known empirically” is well-taken.
The study does not have nearly enough data to reach conclusions from which policy recommendations can be effectively made, has not been reviewed critically by other professionals, and most importantly has a number of drawbacks that can affect its reliability. Many of these limitations were acknowledged by the authors. There are also unstated assumptions in the study that would certainly skew any results.
For a more in-depth analysis of why this study cannot be the basis to make policy changes, see a more complete analysis by ESR at: http://www.esrcheck.com/Blumstein-and-Nakamura-study-on-redemption-in-Criminology.php
Over the Governor’s veto, the Hawaiian legislature passed a new law effective July 1, 2009 that put limits on the use of employment credit history or credit reports unless it “directly related to a bona fide occupations qualification,” or falls under another exception.
The bill amends the Hawaiian Fair Employment Practices Act by making it an unlawful discriminatory practice for any employer to refuse to hire or employ, continue employment or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification. Hawaii Revised Statues Sec. 378-2(8).
The new law also indicates that in terms of hiring in the first place, the employer can only inquire into the credit history or credit report on a prospective employee only after there has been a conditional job offer, and only if the information is directly related to a bona fide occupational qualification.
The law makes exceptions for employers that are expressly permitted to inquire into credit history or a credit report by federal or state law, financial institutions that are insured by a federal agency or to managerial or supervisory employees. The law sets out a specific definition of what constitutes a “Managerial” or “Supervisory” employee.
The Governor’s strong veto message (http://www.capitol.hawaii.gov/session2009/Bills/GM813_.pdf ) argued that employers should not be subject to, “another restriction on employers that could impact their ability to protect the safety and financial security of their workplaces.” The Governor indicated that credit reports can have value in particular situations and that Congress has regulated the use of credit reports in the Fair Credit Reporting Act (FCRA).
For a copy and history of the new law, see: http://www.capitol.hawaii.gov/session2009/lists/measure_indiv.aspx?billtype=HB&billnumber=31
It should be noted that even without the new law, an employer that obtains a credit report for employment does NOT obtain a credit score or FICO number. A credit score is not part of an employment credit report since it is not a valid predictor of job performance. However, as noted in an article in USA Today where ESR President Lester Rosen was quoted, credit reports have been strongly criticized for preventing some consumers from obtaining employment. http://www.usatoday.com/news/washington/2009-02-12-creditcheckinside_N.htm
The California legislature, in fact, passed a law in 2008 that would have severely restricted employment credit reports, but it was vetoed by the Governor and did not become law. The new Hawaii law is similar to a restriction passed in the State of Washington in 2007, that required a credit report to be substantially job-related and for the employer's reasons for the use of such information to be disclosed to the consumer in writing. http://www.esrcheck.com/newsletter/archives/June_2007.php#T2
It is likely that more states will be reviewing the use of credit reports and employment in the future.
In a 2008 federal appeals case, two past medical employers gave past employment information for the same anesthesiologist. After the anesthesiologist, Dr. Robert Berry, moved on to yet another hospital, he botched a routine 15 minute procedure, leaving a patient in a permanent vegetative state due to Berry’s own addiction to drugs.
The new hospital and its insurance company settled with the victim and in turn sued the previous two medical organizations for misrepresentations in the past employment information given to the new hospital. The allegation was based upon misrepresentations since the new hospital claimed it hired Berry because the defendants did not give accurate information by withholding information about misconduct and drug use.
The first defendant was a medical group that was fully aware that Berry had a drug abuse issue. After giving Berry a second chance, Berry continued to misuse drugs. Berry was terminated for that reason.
Against that backdrop, when asked for a recommendation by the new hospital, members of the medical group made statements suggesting Berry was an excellent clinician, would be an asset to any anesthesia service and that he was recommended highly as an anesthesiologist.
The second medical provider was a hospital where Berry had practiced. Instead of saying anything positive or negative, the hospital simply provided dates of employment and occupation. However, the hospital also claimed the reason it did not go into detail was that “there was a large volume of inquiries.” Even though the hospital gave in-depth recommendations to 13 other physicians, it appeared that the hospital did not want to say anything about Dr. Berry.
The first hospital failed to disclose that Berry had on-duty drug use, and that his undocumented and suspicious withdrawal of Demerol had “violated the standard of care,” or provide other negative information.
In the decision, the appeals court had no difficulty finding that the medical group was clearly liable, under the theory that once a party volunteers information, it has a duty of care to insure the information is correct. Otherwise, it amounts to a misrepresentation by material omission. The court clarified that a party does not incur liability every time it casually makes an incorrect statement. However, the court noted that:
“But if an employer makes a misleading statement in a referral letter about the performance of its former employees, the former employer may be liable for its statements if the facts and circumstances warrant. Here, defendants (medical group) were recommending an anesthesiologist, who had the lives of patients in his hands every day. Policy considerations dictate that the defendants had a duty to avoid misrepresentations in their referral letters if they mislead plaintiffs into thinking that Dr. Berry was an “excellent” anesthesiologist, where they had information that he was a drug addict.”
The situation with the first hospital, however, was more complicated. The first hospital knew that Berry was a potential danger, but yet chose to say nothing, hiding behind a claim that they were too busy to provide more details.
The Court noted that it found no Louisiana case, or cases outside of Louisiana, that imposed a requirement that a past employer reveal negative past information, absent a situation where the past employer made some sort of affirmative misrepresentation. In other words, the first hospital did not have a legal duty to voluntarily step up and give negative information, as long as it limited its report to just factual employment data such as dates and job title.
The court noted that,
“And although the (first hospital) might have had an ethical obligation to disclose their knowledge of Dr. Berry’s drug problems, they were also rightly concerned about a possible defamation claim if they communicated negative information about Dr. Berry.”
The Court noted that if such an obligation were imposed upon employers, there would not only be privacy concerns, but it would create a burden if employers had to investigate each time if negative matters about a past employee was the type that had to be disclosed. The bottom line: if an employer limits itself to just dates of employment and job title, it has no obligation to warn of future dangerousness, provided the employer did not falsely mislead the new employer.
That is why so many employers choose to not say anything either way. However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Some employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.
That is why so many employers choose to not say anything either way. A practice has developed essentially that if you do not have something good to say, then don't say anything at all.
However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.
Just documenting the fact that an effort was made will demonstrate due diligence. Verification of dates of employment and job titles are also critical because an employer must be concerned about unexplained gaps in the employment history. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.
It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.
The case is Kadlec Medical vs. Lakeview, 527 F.3d 412 (5th Cir. 2008)
For a copy of the case, contact Jared Callahan at jcallahan@esrcheck.com or by phone at 415-898-0044.
The typical search fee is $26.00 per item (one party name or case number). Copy fee is $.50 per page. Certification fee is $9.00 per document; double for exemplification, if available. Most courts require prepayment. Mail requests should enclose a SASE unless otherwise noted. Before releasing records, most courts require prepayment.
District courts index by defendant and plaintiff and by case number. Bankruptcy courts usually index by debtor and case number. While most courts now have their indexes on computer, many may still maintain index card files as well. Courts will archive closed case files at different times.
There are numerous public access programs available to online subscribers. Search the U.S. Party/Case Index to find party names and case numbers among all courts. Individual case data is provided on PACER. A search of CM/ECF provides copies of cases filed electronically. For details about PACER, the US Party/Case Index, and CM/ECF see the Appendix or go to http://pacer.psc.uscourts.gov or call 800-676-6856.
� excerpt from The Sourcebook to Public Record Information
BRB Publications annouced today a new website that enables the public to verify individuals and businesses required to be licensed or have a certification or registration.
This free, new resource enables a researcher to check the representations people make to the public in day-to-day personal or business life. Users of www.verifyprolicense.com can choose an occupation or business category, by state, to find the direct address, phone number, and web page of the licensing or certification board. The resulting screen also provides a hot link to a License Validator to verify the license, permit, and registration information for individuals and or businesses. Another valuable feature of the search is that it often indicates when disciplinary action has been taken against an individual or business. This site is updated weekly and includes over 8,000 occupations with over 4,500 "name searchable" links providing immediate results.
According to BRB Publication’s CEO Michael Sankey, "Professional occupational licensing and non-voluntary certifications and registrations are generally a matter of public record, intended to protect the public from fraud and the misrepresentations of qualifications. It is simply a smart business practice to check on those with whom you deal, particularly if strangers come into a home, or if money and property are involved."
Also, the new website is dedicated to educating the public about The Sue Weaver C.A.U.S.E. (Consumer Awareness of Unsafe Service Employment).
About the Sue Weaver C.A.U.S.E.
On August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender. Ms. Weaver’s attacker was hired through a major department store to do service work in her home. In memory of Sue Weaver, C.A.U.S.E. was founded in 2004 as a non-profit organization that brings awareness and education to consumers and employers regarding the necessity of criminal background checks on all service employees, contractors and subcontractors hired to work in or near clients’ homes. For more information about C.A.U.S.E. visit www.sueweavercause.org.
Even with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks. Described below are seven common concerns that employers express.
Is screening legal?
Yes. Employers have an absolute right to conduct lawful pre-employment screening in order to hire the bestqualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know who is being hired with an applicant’s right of disclosure and privacy. Under this law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated equally. A qualified screening company will assist an employer with legal compliance issues.
Does screening invade privacy?
No. Employers can find out about only those things that an applicant has done in his or her “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that can be seen as valid, non-discriminatory predictors of future job performance. Employers should also take steps to maintain confidentiality within an organization, such as keeping background check reports in a separate file from the personnel files.
Is screening cost-effective?
Yes. A pre-employment screening will typically cost less than the expense of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire or one incident of workplace violence can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, so not all applicants are screened. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, so any money spent in an effort to avoid problems in the first place is money well spent.
Does screening discourage good applicants?
No. Employers who engage in screening do not find that good applicants are deterred. Good job applicants have a desire to work with qualified and safe coworkers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion.
Does screening delay hiring?
No. Background screening is normally performed in just 48 to 72 hours. Keep in mind that most of the information needed is not stored in databases, but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays, such as previous employers who will not return calls, schools that are closed for vacation or a court clerk who needs to retrieve a record from storage.
Furthermore, an organization that is careful in its hiring practices should find a lower rate of “hits” during background checks. There are a number of steps a firm should take to ensure safe hiring well before a name is submitted to a background company. These techniques include making it clear your firm does background checks in order to weed out bad applicants, knowing the “red flags” to look for in an application and asking questions in interviews that will filter out problem candidates.
Is screening difficult to implement?
Not at all. For an overburdened HR, security or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. In a short period of time, a qualified preemployment screening firm can set up the entire program and provide all the necessary forms. Many firms have secured Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.
How do you select a service provider?
First and foremost, an employer should look for a professional partner, not just an information vendor who is selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if an employer were choosing a law firm for legal representation, it would not select the cheapest—it would clearly want to know the selected firm is competent, experienced and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal FCRA and applicable state laws. An employer should only utilize firms that have committed to professional standards, as evidenced by membership in the professional organization for background screening firms, the National Association of Professional Background Screeners (www.NAPBS.com).
Both employers and applicants need to accept that pre-employment screening is an absolute necessity in today’s business world. Pre-employment screening is a key element in any program designed to prevent workplace violence.
Lester S. Rosen is an attorney at law and president of Employment Screening Resources, a national background screening company (www.ESRcheck.com). He is a consultant, writer and frequent presenter on safe hiring, pre-employment screening and legal compliance. He is also an experienced criminal attorney and has and testified in court as an expert in safe hiring. He is the author of The Safe Hiring Manual–the Complete Guide to keeping Criminals, Terrorist and Imposters out of Your Workplace (512 pages/Facts on Demand Press).
ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring. The full report is online at: http://www.esrcheck.com/2009-trends-backgroundscreening-industry.php
1. Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries. In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.
2. Privacy and Accuracy: Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations. A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse. A new organization called Concerned CRA’s (www.concernedcras.com) 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. The State of New York, for example, to deal with this issue directly, has passed new “second chance” laws that became effective this year. The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.
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 in 2009. These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.
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 or education history.
6. Data Security, 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 sending confidential consumer data offshore for processing to places such as India for cost savings. Once data leaves the United States, it is beyond U.S. privacy protections. Concerned CRA’s (www.concernedcras.com) has also 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 (www.napbs.com) 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 accreditation 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 year. Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.
10. International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.