This newsletter is sent to clients of Employment Screening Resources (ESR) and employers, HR and Security professionals and law firms who have requested information from ESR 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.

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June 2003            Vol. 3, No.6
www.ESRcheck.com

1. Employers Sued for Improper Questions on Application Concerning Criminal Information

2. Spanish Language Forms Mandated by California Law

3. Negligent Hiring Exposure Extends to Independent Contractors

4. ESR to Present Workshops Throughout the US in 2003

1.  Employers Sued for Improper Questions on Application Concerning Criminal Information

A class action suit against over 100 California employers in April, 2003, demonstrates the importance of paying close attention to language concerning past criminal behavior in an employment application.

The legal action alleges that employers violated California Labor Code Sections 432.7 and 432.8 by asking illegal questions.  These sections prohibit an employer from asking an applicant to disclose, either in writing or orally, information concerning any arrest or detention that did not result in a conviction, participation in a diversion program or certain minor marijuana related offenses over two-years old. 

ESR has long advised employers to carefully review their application forms to ensure that the questions are not either too narrow or too broad.  Applications that only ask about felony convictions are too narrow, since in many states a misdemeanor conviction can be very serious. Conversely, applications that ask about any criminal matter can be too broad by inquiring into matters that are prohibited in many states, such as an arrest not resulting in a conviction.

For detailed information on application forms, including how applications are a critical safe hiring tool, a sample application form and suggested language to be used in an application, visit the ESR Knowledge Base at http://www.esrcheck.com/articles/index.php#6

 2.   Spanish Language Forms Mandated by California Law

Forms in Spanish for use in the hiring process have been mandated in California as part of the sweeping changes in background checks that occurred in 2002.  According to the California Investigative Consumer Reporting Agencies Act, a consumer in California must be given a statement of their rights in both English and Spanish when they ask an employer for either a copy of their background report, or the ability to view the background firm's physical location.  (California Civil Code Section 1786.29(b)).

ESR has all necessary background screening forms in Spanish, including the legally required consent and disclosure notice under both federal law and California law. 

These laws underscore the fact that employers hiring in California must be in compliance with a large number of special "only in California" provisions.  Failure to be in compliance with California laws can potentially expose employers to liability.  Forms that are 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 a previous ESR newsletter, ESR has played a substantial part in amending California laws concerning safe hiring and pre-employment screening. For more information about compliance with California's unique rules, see:  Only in California: The Strange Saga of AB 655--Critical New Rules Affecting Safe Hiring in California  (Available at www.ESRcheck.com )

Employers may also contact Jared Callahan at 415-898-0044, ext 240 or by e-mail at jcallahan@esrhire.com.   If there is any question about forms or procedures being used, ESR can perform a compliance check-up.  

3. Negligent Hiring Exposure Extends to Independent Contractors

Many employers are aware that they have a duty to exercise due diligence in hiring employees.  Recent multi-million dollar jury verdicts across the US have confirmed that an employer has a duty to exercise reasonable care in hiring, and that an employer can be held liable for negligent hiring if they hire someone that they either knew or should have known was dangerous or unfit for a particular job.

However, due diligence can also extend to firms that hire independent contractors as well.  For example, in the case of Chevron USA, Inc. et. al v Superior Court (Kern County), 4 Cal.App4th 544 (1992), the court ruled that a firm could be held accountable for injuries caused by an independent contractor, if the firm failed to exercise due care in selecting the contractor.  The fact the injury was caused by an independent contractor instead of an employee does not change the fact that a business has a duty of care to others. 

The case underscores that businesses must exercise due diligence in hiring both employees and independent contractors.  Many businesses hire a score of independent contractors or vendors to either perform jobs on their premises or to carry out the firm's work.  The critical lesson is that employers also have a duty of care when they retain the services of independent contractors, and can be held responsible for negligent hiring.  ESR can assist in screening individuals employed as independent contractors, or who are employed by a business's vendors. 

4. ESR to Present Workshops Throughout the US in 2003

ESR will be presenting seminars on pre-employment screening, due diligence, the Fair Credit Reporting Act and other topics relating to safe hiring across the US.  Here are some of the future dates.   

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 HR Southwest 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 29 and 31, 2003--"The How To of Background Screening."  (Pasadena, CA at the Pasadena Hilton on July 29 and Orange County, CA at the Double Tree hotel in Orange on July 31). Sponsored by the Professionals in Human Resources Association (PIHRA), as part of the Part of the Practicum Series-How to Be A More Effective HR Practitioner.  See www.PIHRA.org

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.

June 18, 2003--San Francisco, CA--  "HR Audit-Are you Up To Date,"  sponsored by Lorman Educational Services with Lester S. Rosen as moderator and speaker.  Click for details>>>

June 12, 2003-Sacramento, CA--  "Background Checks and Reference Checking:  A Catch-22 for Employers."  Sponsored by the NCHRA (www.NCHRA.org)  Sheraton Grand, Sacramento, 9-12. 

Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrhire.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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