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)
July 2008            Vol. 8, No. 7

ESR Newsletter and Legal Update

1. The Reasons Employers Should Not Rely on Resumes 

2. Ten Critical Items Every Application Needs

3. Three Problems with Application Forms Asking About Past Convictions

4. Where to Find a Good Application Form

5. Top 10 Signs You are Hiring a Lawsuit Waiting to Happen

6. ESR Speaks Summer/Fall 2008 Speaking Schedule

1. The Reasons Employers Should Not Rely on Resumes

Some employers still hire based primarily upon a resume. This can be a major mistake from the viewpoint of safe hiring. For an applicant, a resume is a marketing tool. Many resumes start by describing the type of job that an applicant is looking for, or a statement of skills and experience. In a resume, an applicant picks and chooses whatever information he or she wants to share. Many job hunters use a resume writing service, and while there is nothing wrong with using a service to prepare a professional looking resume, the service typically will attempt to enhance the applicant’s experience. The service’s goal is to get the applicant to the interview stage.

Employers, however, need facts in order to make hiring decisions.

What are some of the dangers in using a resume?

First, job applicants often feel compelled to reveal things about themselves that an employer does not need, or legally should not, know. Resumes often reveal volunteer affiliations, hobbies, interests or memberships in groups that reveal such prohibited information as race, religion, ethnicity, sexual orientation, or age. For example, a resume may reveal a person does volunteer time with a church, or belongs to a group that is clearly associated with a particular race or nationality. The problem is the Federal EEOC and states’ rules prohibit an employer from obtaining or using such information. Having this information in the form of a resume in the employer’s file is not a good practice in the event the employer is ever the subject of civil litigation or a government investigation into their hiring practices.  By using an application form, an applicant cannot volunteer irrelevant information an employer should not possess.

Conversely, resumes may not give an employer all the information needed to make an informed hiring decision. With a proper application, an applicant cannot skip over jobs he or she would rather not mention. An application can allow an employer to spot unexplained employment gaps. Also, job applicants typically do not self-reveal their criminal records in a resume.

In addition, it is much easier for an employer to prescreen candidates using a standardized application. An employer trying to screen a large number of resumes can more easily compare applicants.

Finally, an application form can contain critical elements that an employer may want to convey to the applicant, or critical questions that an employer way want to ask, such as whether the applicant has a criminal record

2. Ten Critical Items Every Application Needs

These ten critical areas need to be addressed in every application as part of a Safe Hiring Program—

1. The application needs to clearly state that “there will be a background check” or “a background check will be performed.” A well-worded application form discourages applicants with something to hide, and encourages applicants to be open and honest.
2. There should be the broadest possible language allowed by the laws of your state asking about convictions and pending criminal cases.
3. An application should state that “untruthfulness or material omissions are grounds to terminate the hiring process or employment, no matter when discovered.” This is critical for example when an applicant is not truthful about a criminal conviction.
4. The form should clarify that “a criminal conviction is not automatic grounds for rejection.” It could be a form of discrimination to automatically reject an applicant because of a criminal record. The keyword is “automatically.” Without the statement that there is no automatic rejection, an applicant may be deterred from applying in the first place out of fear of being automatically rejected upon honestly answering the question. The chilling effect on an applicant could be a form of discrimination in itself, which is why this additional language is necessary. Conversely, if a person has lied about a criminal violation, then dishonesty may become the basis for disqualification.
5. The application form should indicate the applicant consents to “pre-employment background screening, including verifying educational and professional credentials, past employment and court records.” Such a release may discourage an applicant with something to hide, or encourage an applicant to be forthcoming in an interview. If an employer uses an outside service to perform a pre-employment screening, the federal Fair Credit Reporting Act requires there must be a consent and a standalone disclosure form separate from the application.
6. The consent portion on any release form used for a background check should indicate the release is “valid for future screening for retention, promotion or reassignment (unless revoked in writing).”
7. The application form must ask for ALL employment for the past 5-10 years. This is critical. A standardized application form makes it easier to spot unexplained gaps in employment. That is an important step in the hiring process and a critical part of exercising due diligence. Even if an employer hires a background company to perform a pre-employment criminal check, records can be missed because there is no national criminal record resource available for use by private employers. Criminal checks must be done in each county where the applicant has lived, worked or attended school. If a person has an uninterrupted job history, an employer may have more confidence that the applicant has not been in serious trouble over the years.
8. The form should indicate that all educational accomplishment the applicant wishes the employer to consider should be listed.  This covers an employer in a situation where an applicant was not honest about their educational accomplishments, but a degree is not part of the job description.  The lack of honesty can be the basis for an employer to take action regardless of the listed job qualifications.
9. The form should allow the applicant to indicate whether the current employer may be contacted for a reference.
10. Finally, an employer can cover other standard matters. Examples include: the organization’s “at will” policy; the employer is “a non-discriminatory employer;” uses mandatory arbitration in disputes; and requires that applicants provide original documents to verify their identity and right to work in the United States.

Reprinted from The Safe Hiring Manual by ESR President, Lester S. Rosen (2004)

3. Three Problems with Application Forms Asking About Past Convictions

One of the most effective uses of an application form is to enable an employer to directly ask an applicant if he or she has a criminal record. Unfortunately, many employers use language in their applications that is either too narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in a difficult situation. Let us go over this language in detail—

Too Narrow

An example of a question that is too narrow is to only ask about felonies. Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states.  However, misdemeanors can be very serious. Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state

Too Broad

On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. An example may be, “Have you ever committed a crime?” Or “Have You Ever Been Convicted of Any Crime?”   There are a number of limitations under state and federal law concerning what an employer may legally ask about or “discover” concerning an applicant’s or employee’s criminal record. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where he is forced to reveal information about himself that he is legally entitled not to disclose, an employer can actually be sued in some states for “defamation by compelled self-publication.” In other words, if forced to say something defamatory about himself, an applicant may be able to file a lawsuit against the employer for defamation.

Too Ambiguous

The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor?” or “Have you ever been convicted of a crime of violence?” or a similar question that calls for an opinion. The problem occurs when an applicant is called upon to make a judgment about his own offense. To determine if a crime can be labeled as "serious" can call for a very complex legal and factual determination on which lawyers and even judges could disagree. At times an applicant may be simply confused by court proceedings and may not understand the results or what they mean. By asking a question that is ambiguous and leaves waffle room, an applicant can argue that in his or her mind the offense was not serious and a “no” answer was truthful. That is why a question cannot contain any ambiguity

4. Where to Find a Good Application Form

Application forms are available from a number of sources.

The local or state Chamber of Commerce may have forms available.

A firm’s business or labor attorney will normally have a new employee package  available with an application form.

Human resources consultants and HR organizations may have forms.

Office supply stores sell basic business forms including application forms (but be careful about some of the points raised in this newsletter).

Books about hiring are available from local book stores and HR associations, such as SHRM, and contain sample forms.

There are firms that specialize in selling employment related forms and products
on the internet.

Many firms design their own employment forms to reflect the particular needs of their firm or industry.

One word of caution — many states have unique rules regarding what can and cannot be on an application. Some of these rules concern what an employer may ask about past criminal convictions. It is beyond the scope of this newsletter to review the requirements for all fifty states. However, an employer is well-advised to consult with a labor attorney for every state they hire within to review the legality of their application forms.

5. Top 10 Signs You are Hiring a Lawsuit Waiting to Happen

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 records. 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. 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.

6. ESR Speaks Summer/Fall 2008 Speaking Schedule

August 12, 2008 

Online Web Conference

Conducting Legally Compliant Background Screening: A Hospital Perspective for Non-Physician Staff."  Sponsored by the World Research Group www.worldrg.com

August 13/14, 2008          

Online Recruiting Conference

Using the Internet and Social Networking Sites to Screen Candidates

NACE

September 25, 2008

National Webinar

"The Difference Between Reference Checks and Background Checks:  Figuring Out Who to Hire and Who NOT to Hire," held in conjunction with www.Checkster.com  Register at: https://www2.gotomeeting.com/register/986284650

October 2,  2008

National Webinar

"Using the Internet and Social Networking Sites to Screen Candidates,"  BNA Webinar

October 13-14

St. Louis, MO

Negligent Hiring Mock Trial--College and University HR in the Hot Seat,"--CUPA-HR National Conference and Expo 2008

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

3Back to Newsletters