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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 Update2. Use of Workers’ Compensation Records: Extreme Caution Advised 3. Adverse Action – How to do it and what it is 1. U.S. Conference of Mayors Holds National Summit on Issue of Re-Entry of Ex-offenders into the Workforce The U.S. Conference of Mayors announced a conference held in February on the issue of mass incarceration and the need to get ex-offenders employed. Featuring mayors form major American cities, including New York Mayor Michael Bloomberg, the announced purpose of the conference was to help former inmates find jobs after their release and to avoid going back to jail. According the press release: With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back. This conference underscores an emerging issue of how society deals with individuals with criminal records. On one hand, if an employer hires someone for a job with an unsuitable criminal record, and some harm occurs, the employer may face the prospects of a negligent hiring lawsuit. On the other hand, without a job, an ex-offender is likely to end up back in custody, and unless we as a society would rather build more prisons than schools and hospitals, some way is needed for ex-offenders to get back to work. In addition, there is an increased likeliness going forward of discrimination lawsuits where ex-offenders were denied employment without a business justification. Background screening firms are often caught in the middle of this debate. Although a screening firm does not make the hiring decision, screening firms are hired by employers to research potential criminal records. A background screening firm should clearly advise employers that there are limitations on the use of criminal records. There are various state laws that limit what an employer can consider. In addition, the federal Equal Employment Opportunities Commission has made it clear that a criminal record should only be used where there is a business justification. There are also special rules governing arrests that did not result in a conviction. For more information on the use of criminal records, contact Jared Callahan at ESR by e-mail at jcallahan@esrcheck.com for more information. In addition, ESR has prepared a special report for the benefit of ex-offenders on how to get back into the workforce called, Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce It has been reprinted online and is available at: http://www.privacyrights.org/ar/rosencrim.htm 2. Use of Workers’ Compensation Records: Extreme Caution Advised Employers have become very aware of the high costs of compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims. At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations. The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim. Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form. The following brief summary describes the major points involved in obtaining and using workers’ compensation records.
What does all this mean? Before attempting to utilize a search for workers’ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney. 3. Adverse Action – How to do it and what it is Some employers have remarked that they are confused by the Adverse Action Process that is required under the federal Fair Credit Reporting Act (FCRA). The federal law kicks in when you use a Consumer Reporting Agency to perform a background check (known as a “consumer report”) and decide not to hire the applicant based on something in the report. The adverse action “Process” itself is simple. It involves sending TWO separate letters to the applicant, along with the consumer report and a summary of their rights, so that the applicant has time to review the report for errors. The timing of the two letters would be such that the applicant has meaningful opportunity to review, reflect and react to the report in order to dispute any perceived inaccuracies in the report. It is the responsibility of the Consumer Reporting Agency to reinvestigate any inaccurate information in the report. The Adverse Action Process The first letter – the “Pre-Adverse Action Letter” – is sent to the applicant saying that his or her application is being considered and asking the applicant to review the report so that a hiring decision can be made. A copy of the report is sent with the Pre-Adverse Action letter. The letter also includes a statement of rights that has been prepared by the Federal Trade Commission. Then the applicant is given a period of time to review the report and to dispute any perceived inaccuracies with the background firm. If the applicant hasn’t disputed the contents of the report within a reasonable time, and the employer wants to make the hiring decision final, then the Adverse Action Letter itself is sent. That letter states that the applicant is no longer being considered for employment. A good practice is to send another copy of the Background Screening Report with the Adverse Action Letter, as well as the statement of rights, so there can never be a question of the applicant having received his or her report. Although the FCRA law does not give a definite time interval between the first letter and the second, the intent of the law is to give the applicant sufficient time to review the report. Allowing a period as long as ten (10) business days between the first letter and the second letter should provide sufficient time to receive and react to the first letter before the second letter is sent. Even though the Adverse Action Process has been initiated, the employer is under no requirement to “hold the job open” for the applicant. The employer can proceed with considering and hiring another candidate. If the applicant disputes the contents of the report, and the dispute is successful, then the employer is always free to consider the applicant again for any open position. That would be a business decision. In other words, using the Adverse Action is not an impediment to the normal hiring process. Although it is an employer’s duty to send these letters, many employers delegate that task to their employment screening background firm. For more information please see the topic: “The FCRA in Four Easy Steps,” by ESR President Lester Rosen at http://www.esrcheck.com/articles/article9.php ESR has a quick and very responsive dispute resolution process if the applicant disputes a report. ESR feels strongly that both the employer and the applicant deserve an accurate report. ESR’s own Jared Callahan, a licensed Private Investigator in California, presents Employment Screening Background Checks – A to Z More than just the basics, this full-day seminar will cover everything you need to know about background checks. From determining where to search for possible criminal records to how to get information from past employers, you will walk away with all the tools and knowledge necessary to effectively manage the employment screening process in your organization. Learn the details about crucial aspects of employment screening, such as;
Presenter: ESR’s Jared Callahan is a licensed private investigator in the state of California and works with ESR’s clients to conduct background checks and teaches them about legal compliance efforts across the 50 U.S. states. He began his career in employment screening in 1996 with a private investigative firm. He has also worked as an investigator in the special investigations unit of a large workers' compensation insurance company. Jared has been quoted in numerous publications, including The Washington Post and MSN Money. Additionally, he has given many speeches on the topic of background screening to the National Human Resources Association, Employment Advisory Council and the Hospital Association of Southern California, to name a few. Mr. Callahan currently sits on the Editorial Review Board of the California Employer Advisor. As this event is sponsored by ESR, an HRCI approved provider, each attendee will receive continuing education credit. This course provides 5.5 hours of continuing education credit. DATE and Time Tuesday, April 22 - Emeryville – Woodfin Hotel Cost: $349 Includes all day seminar, morning coffee and refreshments, lunch, printed binder of material and 5.5 hours of HRCI credits! No charge for ESR clients. For questions, call Jared Callahan at ESR 888-999-4474 or email at jcallahan@esrcheck.com To sign up please go to http://www.esrcheck.com/background_seminars.php ESR 2008 Speaking Schedule March 26, 2008 Los Angeles, CA "Pre-employment Screening: Best Practices and Legal Compliance" HR STAR Conference April 3, 2008 San Francisco, CA "Pre-Employment Screening and Background Checks" San Francisco Employer Advisory Council (EAC) May 15, 2007 Las Vegas, NV Using the Internet and Social Networking Sites to Find and Screen Applicants" Kennedy Information's Recruiting 2008 Conference and Expo, Las Vegas Hilton June 5, 2008 Cooperstown, NY "Cutting Edge Issues and Best Practices in Background Checks and Employment Screening for Hospitals and Healthcare Organizations" Symposium sponsored by the Health Association of New York State (HANYS) June 12, 2008 Santa Cruz, CA "Pre-employment Screening: Best Practices and Legal Compliance," Santa Cruz EAC (Aptos Golf Course) June 23/25, 2008 Chicago, Il "Negligent Hiring Mock Trial" and "Caution! Using the Internet and Social Networking Sites to Screen Applicants". SHRM 60th Annual National Conference and Exposition. July 14, 2007 Boston, MA "Preventing Employee Fraud at the Point of Entry: Legal and Effective Pre-employment Screening" National Conference for the Association of Certified Fraud Examiners (ACFE) July 16, 2008 San Francisco, CA "Pre-employment Screening: Best Practices and Legal Compliance" HR STAR Conference July 18, 2008 Stockton, CA "Pre-Employment Screening and Background Checks" Stockton Employer Advisory Council (EAC), Stockton, CA August 13/14 Online Recruiting Conference -"Using the Internet and Social Networking Sites to Screen Candidates" By NACE (details to follow) August 28/29 2008 New Delhi, India "International Background Screening: Best Practices in the US and in India and the Pacific Rim." The Second Annual International Pre-employment Screening Conference, The Taj Mahal Hotel, New Delhi, India Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly. ESR is pleased to announce new services that are available to U.S. employers:
ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring. The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work. Features of this course include:
Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The $395 course is offered at no charge to ESR clients. The course is available at http://esr.coursehost.com More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php
Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release 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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Video clips used by permission of Kantola Productions The ESR Advantage
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