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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January 2009            Vol. 9, No. 1
 

ESR Newsletter and Legal Update

1. ESR Releases Its Second Annual Top Ten Trends in the Screening Industry (2009 Edition)

2. Stacy the "Drunken Pirate" - a Federal Court Case in the MySpace Age

3. Dumb Criminals: It could be Funny if it wasn't So Sad

4. See the ESR Press Release http://www.prleap.com/pr/124407/ on our New Book, The Safe Hiring Audit (click within this headline)

1. ESR Releases Its Second Annual Top Ten Trends in the Screening Industry (2009 Edition)

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.

2. Stacy the “Drunken Pirate” - a Federal Court Case in the MySpace Age

As ESR has noted in numerous presentations on the use of social networking sites such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions.

An opinion was rendered by the United States District Court for the Eastern District of Pennsylvania on December 3, 2008.  Although this decision involved issues surrounding the awarding of a degree and does not deal with private employers,  this appears to be the first published decision that deals with the  issue of utilizing a social networking page to deny a consumer an opportunity and may contain important lessons for employers. 

In that case, a would be teacher named Stacy Snyder sued administrators from Millersville University alleging that the school violated her freedom of speech by looking at her MySpace page, with the eventual result that Snyder did not receive an educational degree needed for a teaching certificate in Pennsylvania.

Snyder was engaged in a required student teaching program.   The high school teacher assigned to her was Nicole Reinking.  Even before the MySpace page became an issue, Reinking had already been critical of Snyder’s abilities, and noted an ignorance of basic grammar, punctuation, spelling and usage, as well as inadequate classroom management, poor understanding of the subjects she attempted to teach and her inappropriate manner with students.

The final straw was apparently the discovery by another teacher of Snyder's MySpace page, where according to Snyder's own testimony, she had on a pirate‘s hat, was holding a plastic cup containing a mixed drink that said, ”drunken pirate,”  and had a “stupid expression” on her face while giving the peace sign.  In addition, her page contained text that suggested her supervisor, Reinking, was the reason Snyder would not be applying for a job at that high school.

As a result, the superintend of the high school suspended Snyder from the student teaching program and therefore she was not entitled to obtain a degree in education, and was instead awarded an English degree.

In ruling against Snyder, the federal court noted the school had no legal authority to award her a degree in education where she did not complete the required student teaching program.  However, the Court went on to address the freedom of speech issue, ruling that as a teacher, Snyder only had first amendment rights as it related to public issues and not personal matters.

It is also important to note that prior to posing for her “Drunken Pirate” picture:

• Snyder was told during the orientation not to direct any students or teachers to a personal web page. 
• Snyder admitted that she recalled being told not to post any information about her supervising teacher on her web page.
   
• A universality office had warned students that, in the past, a student was dismissed from the student teaching program for placing information about his supervisor on his personal web page.
   
• Her supervising teacher specifically warned her not to discuss her personal web page with her students.

Despite these warnings Snyder went ahead and told students about her web page and sought to communicate about personal matters with her students through her MySpace page.  Her post also made what appeared to be a negative reference to her teaching supervisor.

Because the case largely focuses on issues having to do with degree granting requirements for teachers in Pennsylvania, as well as issues involving free speech of teachers and students in public institutions, the actual holding of the case is limited when it comes to private employers.  In addition, since it was a federal district court case, it is not binding on other courts. 

However, the case presents very interesting lessons in how a court may view claims by job applicants that their personal webpages were used unfairly.  What stands out in this case is how clear the University was in telling students NOT to post information about their supervising teachers on a personal web page and to not direct students to a personal site.   Despite these clear warnings from the university, she went ahead and did the very things she was told not to.

The bottom-line for employers:  Where such sites are used for pre-employment in the selection process, employers may gain significant advantage in a lawsuit by making it abundantly clear on their web site, job posting or other places that a person’s public online identity may be viewed.  By giving clear and conspicuous notice, an applicant would have a more difficult time claiming that they had a reasonable expectation of privacy on their social networking site. 

Applicants can still, of course, maintain their own pages, and may well want to vent about a co-worker or supervisor.  However, an applicant may choose to either be more circumspect, or to make sure that their privacy settings are such that an employer could not view such pages by causal web browsing.  Advance notice by an employer, or even consent, does not mean necessarily that employers that resort to exceptional means to penetrate a social networking site, such as the use of pre-texting, are protected. There is still a privacy issue to be resolved on the use of social networking sites.  Nor is advanced notice a defense to discrimination.

For existing employees, an employer is well advised to ensure that they have clear written polices concerning personal online use, such as social networking sites, blogs, personal web pages, business connection sites, chartrooms and  other sites.

3. Dumb Criminals: It could be Funny if it wasn’t So Sad

Over the years, we have run into a number of “dumb criminal” stories. Some of our favorites:

• A guy decides to rob the local liquor store where he has been going every day for the past year.  He uses a paper bag from a grocery store, but forgets to put holes in for the eyes.  During the robbery, he needs to pick the bag up where is seen by the clerk (who, of course, knows him very well).  As he leaves the store with the stolen money and booze, he manages to leave his driver’s license behind for good measure.
• A criminal decides to defend himself in a theft case.  While cross-examining the victim, he asks. “And what exactly did I say as I was stealing your car?”

There is a website that has been collecting dumb criminal stories since 1999 that makes for interesting reading.  See:  http://www.dumbcriminals.com/

4. ESR Speaks 2009 Speaking Schedule

ESR 2009 Schedule

February 19, 2009 Modesto ,CA "Pre-Employment Screening and Background Checks,"  Stanislaus County Employer Advisory Council (EAC)

March 25, 2009 San Francisco, CA Background Checks and Social Networking Sites HR Star San Francisco

March 26/27, 2009 New Delhi, India Third Annual India Global Employment Screening Conference, Taj Mahal Hotel

April 28/29, 2009 San Francisco, CA "The Use of Search Engines and Social Networking Sites to Screen Candidates—Landmines and Pitfalls” HR West, NCHRA’s 25th Annual Conference (Northern California Human Resources Association)

May 19/22 2009 Las Vegas, NV Ten Practical and Proven Tools to Qualify and Hire the Best KennedyInfo Recruiting Conference 

June 24, 2009 Webinar "The Essentials of Background Checking: An Introduction."  Presented as an educational webinar for members of the National Association of Professional Background Screeners (NAPBS)

July 1, 2009 New Orleans, LA "Negligent Hiring Mock Trial"   SHRM 61st Annual National Conference and Exposition. 

November 8-11, 2009 Tampa, Florida Annual Pre-Employment Screeners Conference sponsored by the Background Investigator (Intended for background firms and record retrievers) "The Pre-employed Screening Industry--The Good, the Bad and the Ugly."

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  
1620 Grant Avenue, Suite 7
Novato, CA 94945
415-898-0044

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