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This newsletter and legal update is sent to clients of Employment Screening Resources (ESR) as well as employers, HR and Security professionals and law firms who may have a need for information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this list by using the "remove" feature at the end of the newsletter. (Reading
time: Less than 5 minutes) Employment Screening Resources (ESR) Newsletter and Legal Update1. FCRA Changes Moving Through Congress 2. New York Changes Access and Fees for Criminal Records 3. "Only in California" Rules and Spanish Language Forms Revisited 4. Safe Hiring Training Video Available for Employers 1. FCRA Changes Moving Through Congress As reported in previous editions of the ESR Newsletter, Congress is taking up crucial issues this year concerning the federal Fair Credit Reporting Act (FCRA). The first critical issue deals with the investigation of current employees. Under an interpretation of the FCRA issued by the Federal Trade Commission in the "Vail" letter, the FTC indicated that the full FCRA notice and disclosure rules that apply to pre-employment screening must also be followed when it comes to any investigation of current employees for misconduct. This has been criticized by Human Resources, Legal and Security experts as crippling investigations of sexual harassment claims, as well as investigations of misconduct, such as theft or threatened workplace violence. Legislation has been introduced by Texas Congressman Pete Session to exempt third party investigations of current employees from the FCRA. The bill is H. R. 1543. The second critical FCRA issue deals with the expiration in 2004 of sections of the FCRA that preempts states from passing laws that conflict with certain portions of the FCRA. These provisions require one uniform credit system governed by the federal law rather than a hodge-podge of different laws, varying from state to state.H.R. 2622 has been introduced in the House of Representatives to "re-authorize" the FCRA in 2004 so that there is one national standard under the FCRA. It also contains provisions similar to the Sessions bill that overrules the "Vail" letter. ESR will continue to follow and report on the progress of these important laws. 2. New York
Changes Access and Fees for Criminal Records One of the immediate impacts on employers is that New York City area courts will now charge a court fee of $52 for a statewide search. That replaces the previous court fee of $16 per court. For courts that are not in the New York City area, it is unclear whether they will be allowed to provide criminal records to employers, or if all background checks can only be done with the new and more expensive statewide system. For employers who only need one New York City area court searched, this new procedure may add to the cost of pre-employment screening. However, employers that search two or more New York City area jurisdictions are not only ahead, but receive a statewide search that provides much more protection. However, for counties outside of the New York City area, it is not yet clear whether the statewide searches will be as complete as the old searches, in terms of the time periods covered and the inclusion of misdemeanors for all counties. It is also not clear if the court clerks in the courts outside of New York will continue to provide records, or if all New York searches must go through the new system. Until these issues are resolved, employers need to be aware that New York criminal background checks have inherent problems. However, employers have a legal duty to exercise due diligence, and therefore should proceed with the new searches in New York in order to satisfy their legal due diligence obligations. 3. "Only in California" Rules and Spanish Language Forms Revisited An article in our June, 2003 newsletter about Spanish language forms sparked some additional questions. Under both federal and California law, a consumer must authorize a background check and be given various disclosures. If an applicant only speaks Spanish, then the forms must presumably be in Spanish in order to fully protect an applicant's legal rights. In addition, a special burden has been placed by the California legislature on background screening firms. According to the California Investigative Consumer Reporting Agencies Act, as amended in 2002, when a California consumer asks a background firm for either a copy of their report, or to view the background firm's files, the background firm must provide a notice to the consumer in both English and Spanish. (California Civil Code Section 1786.29(b)). ESR has all necessary background screening forms in Spanish. The special California requirements underscore the fact that when it comes to pre-employment screening, there are a number of "only in California" provisions. Forms and procedures used in the other 49 states are useless in California. In addition, California has some of the most restrictive and technical rules in the US when it comes to locating and utilizing criminal records. As outlined in previous ESR newsletters, ESR has played a substantial part in amending California laws concerning safe hiring and pre-employment screening. If there is any question about forms or procedures being used, ESR can perform a compliance check-up. Employers may contact Jared Callahan at 415-898-0044, ext. 240 or by e-mail at jcallahan@esrcheck.com. 4. Safe Hiring Training Video Available for Employers A new professionally produced training video on safe hiring is now available for employers. The 23-minute video is produced by Kantola Productions, a leading national provider of cost-effective and high quality training videos for the business community. The video follows the fictional story of a company that makes a bad hire and discovers the steps they need to put in place to ensure it doesn't happen again. The narrator is ESR President Les Rosen, an attorney and Certified Specialist in Criminal Law. As the story unfolds, the video demonstrates the details of an effective safe hiring process, and sheds light on the legal background that employers need to know. Viewers will learn:
More information is available at: http://www.esrcheck.com/safe_hiring_video.php Other educational opportunities where ESR is participating includes: November 10, 2003- Tampa, FL-National Convention of Background Screening Firms-"Legal Update-- What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening." (For background firm and record retrievers only). Details to be announced. October 10, 2003-Dallas-Ft. Worth, TX-The FCRA: Avoiding the Traps" Presented at the HRSouthwest Annual Conference. See http://www.hrsouthwest.com September 30, 2003--Oakland, CA-- "Safe Hiring Audit-Implementing and Measuring Due Diligence in Your Hiring." Northern California Human Resources Association (NCHRA) Annual Conference. (See www.NCHRA.org) September 18, 2003--Los Angeles, CA.--"Safe Hiring Audit-Implementing and Measuring Due Diligence." 2003 Professionals in Human Resources Association (PIHRA) Annual Conference. (see www.PIHRA.org) August/September, 2003--"Pre-employment Screening and Safe Hiring." Full -day seminars on safe hiring and due diligence by ESR in conjunction with Lorman Educational Services at five locations in California: 8/22 San Diego; 8/27 Santa Barbara; 9/5 San Francisco; 9/23 Sacramento and 9/26 Stockton. Contact ESR for further details. July 23, 2003-Buffalo, NY--"Crimes, Criminals and Human Resources." New York State SHRM HR Conference at the Buffalo Convention Center. See www.nysshrm.org. 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 but only for purposes of general information. Employment
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