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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. (Reading time: Less than 5 minutes) ESR Newsletter and Legal Update
1. ESR Releases its "Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry" for 2010 Employment Screening Resources (ESR) a leading national employment screening firm, has released its annual top Ten Tends in Screening and Hiring. ESR hasidentified new trends that are starting to make a difference, as well as old trends that have evolved as the screening industry matures and as plaintiff's attorneys, including class action lawyers, have started to focus on background checks. In 2009 for example, ESR noted that the use of social networking sites as a hiring tool would merely be a "hot topic." In 2010, the trend has been upgraded to concerns over the potential for litigation alleging the unfair use of social networking sites. Additional forces that will shape the screening industry in 2010 are advancements in technology as well as the constant struggle to balance privacy and fairness with security and due diligence. For instance, the ease with which criminal records can be aggregated conflicts with the laws against the discriminatory use of criminal records. Another issue related to the industry maturing is the proliferation of fly-by-night background check sites that have jumped on the screening bandwagon to make a quick buck, often using fear tactics or the lure of getting "inside information." Of course, legitimate employers understand that employment checks are a professional service that is heavily legally regulated. In fact, concerns over accuracy and compliance with the requirements of the federal Fair Credit Report Act (FCRA) are likely to cause an increase in lawsuits and class actions in 2010. Other trends are related to privacy, government-mandated screenings, and the emergence of best practice for international background checks. An issue related to the recession is problems associated with fraudulent educational and employment claims. One very positive development that will help employers in 2010 is that the National Association of Professional Background Screeners (NAPBS) has been firmly established as the voice of the screening industry, and is very pro-active in promoting best practices. "Employers that do not exercise due diligence to weed out potential bad hires are certainly taking an unnecessary risk and exposing a business to serious legal and financial consequences," said Lester S. Rosen, attorney at law and founder of ESR and author of two books on background screening. "On the other hand, an employer also faces a risk if they are not using appropriate tools and do not appreciate that, as with all matters related to employment, this area is heavily legally regulated." The trends are reviewed at: 2010 Trends 1. Increased focus on whether credit reports and criminal records are discriminatory. 2. More lawsuits including class action litigation over accuracy, privacy, and consumer rights. 3. Pressure on privacy and data protection including the physical location of data. 4. The battle over databases will continue - latest wrinkle is the proliferation of cheap "do-it-yourself" websites and even apps for smart phones. 5. Lawsuits for unfair use of Social Networking Sites may arise. 6. Increased technology will bring about the end of paper and faxing for employment screening. 7. An increase in fraudulent employment and educational claims due to the pressure of the recession. 8. I-9 and other government requirements will grow. 9. Screening will expand beyond new employees to vendors and others on premises and even consumer-generated checks. 10. International screening will be under more scrutiny and best practices will start to emerge, 11. Bonus Trend: The emergence of the National Association of Professional Background Screeners (NAPBS) as the voice of the industry and the continuing efforts to establish best practices. 2. Performing Background Checks on Attorneys, Doctors and other Regulated Professions It is an urban myth that licensed professionals such as doctors, lawyers or teachers, do not need background checks. Just because a person is in a regulated profession, employers cannot assume that background checks are not needed. One of the reasons perhaps that employers may sometime let their guard down when it comes to regulated professions is that employers may assume that a person would not have obtained the professional license in the first place if there was a relevant criminal record or the person had falsified their credentials. Although this approach may carry some weight when it comes to brand new doctors, lawyers, etc, it quickly falls apart for professionals that are no longer new. That is because the disciplinary and regulatory systems to track, process and react to criminal violations or misconduct varies widely by profession and by states. It is not difficult for matters to fall through the cracks. For example, a person with a professional license can commit a crime and "beat the discipline" by getting licensed in another state before the regulatory body takes action in the first state. In some professions, it can take considerable time for the regulatory agency to take action. Depending upon the state and the profession, it is possible that the regulators may even miss the criminal matter entirely, not have enough staff to investigate or the crime may result in some lesser sanction short of denial of a professional license. Another reason to perform a background check on licensed professionals was demonstrated recently in story reported in Connecticut in January, 2010. According to the account given, an attorney faces a grievance action based upon allegations that when he applied for the legal department of a state agency, his resume contained false statements. The allegation is that the attorney lied by falsely claiming he graduated with honors and served on the Law Review, and that he worked for a law office that turned out never existed. In an interesting twist, the accused lawyer defended against the allegation on the basis that the attorney never applied for the job or went to the interview, and that someone pretended to be him. See the full story at: Although such incidents may be less likely when it comes to regulated professionals, it is also true that the impact and potential harm can be substantial. If a doctors, lawyers or teachers for example are able to get away with hiding a criminal record or falsifying a resume, the public can be put at great risk. The bottom line is that law firms, medical facilities, schools or other institutions that hire regulated professionals put the public at great risk with a bad hiring decision, and therefore has a higher duty of care. Conducting due diligence with a background check is the bet way to avoid a lawsuit for negligent hiring and harm to the public. Professional background screening firms such as Employment Screening Resources can conduct background checks nationwide on licensed professionals. 3. Background Checks: What Screening Firms and Employers SHOULDN'T Do An opinion issued by the U.S. District Court in Northern District of Illinois in 2003 provides a case study on what an employer and screening firm should NOT do when it comes to employment background checks. According to the allegations filed in the case, the plaintiff was contacted by a major hotel and offered a position. On his first day, he completed several forms, including an employment application where he truthfully stated he had no criminal record. The application contained an authorization for a background check that the plaintiff did not initial. There was no indication in the court's opinion that any separate disclosure was signed as required by the FCRA. After employment began, the major hotel had a background screening firm to do a background check. The screening firm mistakenly reported that the plaintiff had been convicted of a misdemeanor and served six months in jail. According to the court opinion, the plaintiff in fact did NOT have a criminal conviction. Neither the major hotel nor the background firm investigated the denial, and the plaintiff was terminated. To make matters worse, the plaintiff alleged that after he was fired the major hotel told third parties that he was fired because he lied on his application and spent time in jail. The plaintiff eventually found a new job, but at a substantially lower compensation. Assuming for educational purposes all these facts were true (keeping in mind that allegations are not proof) , how many mistakes did the major hotel and the background firm make? Here are some of them;
The allegations in this case demonstrates the importance of understanding the legal requirements for a screening program. To determine if an employer is legally compliant, contact ESR for an audit of your program, or see the book by ESR, "The Safe Hiring Audit" at Safe Hiring Audit Also, see an article by ESR called, The FCRA in Four Easy Steps for employers. To determine if your current screening firm knows what they are doing, do a vendor audit using: ESR Due Diligence Audit ESR Articles (click for more info) The FCRA in 4 Easy Steps Criminal Records and Employment Applications 10 Safe Hiring Tools Negligent Hiring 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) |
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