This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR's statements about any legal matters are not given or intended as legal advice but only general industry information.  For specific legal advice, employers should contact their attorney.  If this was sent in error, you can be removed from this mailing by simply using the “remove" feature at the end of the newsletter and you will not receive any future newsletters.

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April 2008            Vol. 8, No. 4

ESR Newsletter and Legal Update

1. The “Social Trace” – What It Is and What It Isn’t

2. Anonymous E-mail Reference Checks—Another Way to Get Sued

3. Tip of the month: Carefully Review the Application

4. ESR Speaks Spring/Summer 2008 Speaking Schedule

1. The “Social Trace” – What It Is and What It Isn’t

One of the most common questions among HR professionals is: What really is the Social Security Trace?

Good question.  We’re glad you asked because it is important to know what the “Social Trace” does and what it doesn’t do.

It DOES find addresses and aliases.  It DOES NOT verify your applicant’s identity with the Government, even though it uses the government issued Social Security Number for part of the search.  We will cover how to use the I-9 verification process to “match up” the Social Security Number with your applicant’s name in the next newsletter.

The “Social Trace” takes the information found in the credit headers of the three major credit bureaus and “bounces it off” 400 separate PRIVATE data bases.  Here’s the information that can be returned:

• Previous names, AKAs, alias names, misspelled names, and changed identity.
• Whether the Social Security Number is a valid number, when it was issued and what state it was issued in. This is based upon how the Social Security Administration classifies its numbering system, and not based on applicant’s data.
• Whether the person with that number has been reported as deceased.
• Additional addresses where the applicant has lived or might be living now.
• Other names that could be associated with a particular Social Security Number.
• Extraneous “junk data” that can be ignored.

This information can provide the HR Professional with additional addresses to search for possible past criminal activity and other names that may have been used in committing a crime.

Expanding searches to undisclosed counties – where all but federal court information is stored – and to undisclosed identities can help provide a more complete Background Screening Report.

At ESR, we provide the Social Security Number Trace along with examination of the “Social Trace” by our in-house experts to help determine whether any of the names on the trace are associated with your applicant. 

2. Anonymous E-mail Reference Checks—Another Way to Get Sued

Employers have been presented with yet another “new” and supposedly revolutionary hiring tool—reference checking done by e-mail.  The idea is that each reference is promised that their evaluations will remain confidential and anonymous because the results are aggregated.    Job candidates are the ones that select the references that get the e-mails.  Instead of making phone calls, the references can just fill out an e-mail questionnaire.  The questionnaire is itself a scientifically designed assessment instrument that gives an assessment of the applicant.

On the surface, it can sound appealing as a reference can quickly respond to an email—no more time wasted on playing phone tag and the e-mail evaluations provides a scientific assessment for what is under the candidate’s hood.  And finally, the employer gets a candid assessment because the person giving the reference believes the actual scores to be confidential.

There are areas of concern for employers:

First, if a background firm is the conduit for such a service, it falls under the federal Fair Credit Reporting Act (FCRA).  One of the fundamental tenants of background checks is that there are no secrets.  If a candidate receives a bad score, the candidate arguably has a legal right to find out exactly what each individual reference said about them.  The problem of course is that the reference giver is led to believe that whatever they say will remain confidential.  Under certain circumstances, that simply may not be true.

Another issue is that an employer cannot conduct due diligence by letting job seekers dictate which past employers to check.  It is difficult to exercise due diligence when the applicant gets to pick and choose who is contacted for a reference.  There is also the possibility of a fake or set-up reference, or an applicant creating a fake identity and evaluating themselves.

Background firms on the other hand do not take the applicant's word for whether the past employer even existed.  A background firm will typically independently verify that the past employer existed as well as verify that the phone number is real. The whole idea behind due diligence as a legal defense is independent verification.  Even if past references are contacted for evaluation purposes, the task of verifying the truthfulness and accuracy of the employment history still requires a screening firm to independently obtain information from past employers.

Another issue is defamation. Just because an applicant signs a consent, that does not give permission for a reference to defame them with false or malicious information without liability. 

The bottom-line: Although these e-mail assessment tools may well be an excellent tool for giving in-depth scientifically formulated assessment about a candidate during the decision-making stage, their proper use should be carefully considered.  An employer should evaluate whether or not they provide protection if the employer is sued for negligent hiring and what other measures should be utilized.  Nor can a reference really rest assured that they can give anonymous evaluations without the candidate ever finding out how they specifically rated the candidate.   

This is yet another area where litigation may eventually decide what course employers should take and what rights applicants have.

3. Tip of the month: Carefully Review the Application

Employee lawsuits often catch employers by surprise. Yet, an examination of the employee's application shows that an employer could often have predicted, well in advance, that they were hiring a lawsuit just waiting to happen.

By looking for the following ten (10) danger signals, an employer can avoid hiring a problem in the first place.

1. Applicant does not sign application. An applicant with something to hide may purposely not sign the application form so they later cannot be accused of falsification.
2. Applicant does not sign consent for background screening. When a firm uses an outside agency to perform screening, federal law requires a separate disclosure and consent. A background consent form protects employers in two ways: It discourages applicants with something to hide and encourages candid interviews. If a firm does not perform some sort of screening, they become the employer of choice for problem applicants. If a candidate fails to sign the consent, that is not a good sign.
3. Applicant leaves criminal questions blank. An applicant with a past problem may simply skip the questions about criminal record. Every employment application should ask, in the broadest possible terms allowed by law, if the applicant has a criminal record. Most jurisdictions only permit questions about convictions and pending cases. Employers make a big mistake if they only ask about felonies since misdemeanors can be extremely serious. Although employment may not be denied automatically because of a criminal conviction, an employer may consider the nature and gravity of the offense, the nature of the job and the age of the offense in evaluating whether there is a sound business reason not to employ someone with a criminal record. If an applicant lies about a criminal record however, the false application may be the reason to deny employment.
4. Applicant self-reports a criminal violation. Just because an applicant self-reports an offense does not eliminate the possibility of other offences, or that it was reported it in a misleading way to lessen its seriousness. An employer is well advised to check it out.
5. Applicant fails to explain gaps in employment history. It is critical to look for unexplained employment gaps. There can be many reasons for a gap in employment. However, if an applicant cannot account for the past seven to ten years, that can be a red flag. It is also important 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 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, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.
6. Applicant fails to give sufficient information to identify a past employer for reference checks. If an applicant does not give enough details about past employers, that can be a sign of trouble. Verifying past employment is a critical and important tool for safe hiring. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even if a reference check only reveals dates of employment and job titles, this critical information eliminates employment gaps. In addition, documenting the fact that an effort was made will demonstrate due diligence.
7. Applicant fails to explain reason left past jobs. Past job performance can be an important predictor of future success.
8. Explanations for employment gaps or reasons for leaving past jobs do not make sense. A careful review of this section is needed and anything that does not make sense must to be cleared up in the interview.
9. Excessive cross-outs and changes. These can be an indication that an applicant is making it up as they go.
10. Applicant failed to indicate or cannot recall the name of a former supervisor. Another red flag. Past supervisors are important in order to conduct past employment checks.

These danger signs assume employers use an application form. Some employers put their firm at risk by just using resumes. However, using an employment application is considered a best practice. Resumes are not always complete or clear. Applications ensure uniformity and that all needed information is obtained. It also protects employers from having impermissible information a resume may contain, and provides employers with a place for applicants to sign necessary statements that are part of the hiring process.

4. ESR Speaks Spring/Summer 2008 Speaking Schedule

May 15, 2007 Las Vegas, NV
Using the Internet and Social Networking Sites to Find and Screen Applicants
Kennedy Information's Recruiting 2008 Conference and Expo

June 5, 2008 Cooperstown, NY
Cutting Edges Issues and Best Practices  in Background Checks and Employment Screening for Hospitals and Healthcare Organizations
Symposium sponsored by the Health Association of New York State (HANYS)

June 10, 2007 National Audio Conference
Using the Internet and Social Networking Sites to Screen Applicants IOMA

June 12, 2008 Santa Cruz, CA
Pre-employment Screening: Best Practices and Legal Compliance
Santa Cruz EAC (Aptos Golf Course)

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 

July 14/15 2008 Boston, MA
Preventing Employee Fraud at the Point of Entry: Legal and Effective Pre-Employment Screening
19th Annual ACFE Fraud Convention (Association of Certified Fraud examiners)

July 16, 2008 San Francisco, CA
Pre-employment Screening: Best Practices and Legal Compliance
HR STAR Conference

July 18, 2008 Stockton ,CA
Pre-Employment Screening and Background Checks
Stockton Employer Advisory Council (EAC)

August 13/14, 2008 Online Recruiting Conference
Using the Internet and Social Networking Sites to Screen Candidates NACE

ESR Articles (click for more info)

The FCRA in 4 Easy Steps
Find out how to be in compliance with the FCRA

Criminal Records and Employment Applications
What questions should employers be asking?

10 Safe Hiring Tools
These tools don’t cost anything and promote a safe and profitable workplace

Negligent Hiring
What occurs when Due Diligence is not performed

Contact Us
http://www.ESRcheck.com
jcallahan@esrcheck.com

Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com 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)
www.ESRcheck.com
7110 Redwood Blvd., Suite C
Novato, CA 94945
415-898-0044

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