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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. Can a Background Check be Started Before a Conditional job Offer is Made? From the Mailbox: Can background checks be started before making a job offer? Or do we need a conditional job offer first? There are times we may want to screen three finalists before making an offer. Sometimes, it is too difficult administratively to offer the job, and then to coordinate the background screening process. Although Employment Screening Resources (ESR) cannot offer legal advice, we can offer a very lawyer like answer, which is, "it depends. The short answer is that generally an employer can initiate the background check before an offer is made, provided that the check does not include anything medically related such as workers compensation records, the date of birth is handled properly and state law does not prohibit it. Currently, Hawaii does not allow a criminal record check before a job offer, and New York is considering similar legislation. In hiring, as in life in general, timing can be everything, and certain processes can only be done at certain times. For example, if the background check included workers compensation records, then that would probably not be permissible pre-offer. Under the Americans with Disabilities Act (ADA) and numerous state laws, anything impacting a medical condition must be addressed in the state of hiring that occurs after the offer is made but before employment begins. That is sometimes referred to as "post-offer, pre hire." If there is a condition that must be satisfied during that period, then the offer is a "conditional offer." (As discussed in another blog, running workers compensation records even post-offer has its own pitfalls. See previous blog. Assuming the background includes standard screening searches such as criminal records, driving record, past employment or education, an employer can probably request those pre-offer, unless there is a specific state law the prohibits it. Hawaii for example does not permit a criminal record check to occur before the offer is made. HAWAII EMPLOYMENT PRACTICES ACT, section § 378-2.5(b). Under that law: Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position. The state of New York is considering legislation that would operate in a similar fashion to the Hawaii law, by making it a discriminatory practice to inquire into a criminal conviction unless there has been a conditional offer of employment, and only allowing the offer to be withdrawn in accordance with Article 23-A of the New York Corrections laws, which essentially requires that there be a job related reason to deny employment based upon a criminal conviction. That pending legislating is A05330. (For more about New York corrections Law Article 23-A, see article.) It should be noted there are advocacy groups that are pushing for a similar approach to the New York bill in order assist ex-offenders to get employment. Another sensitive area that touches on the issue of timing of background checks is the federal Age Discrimination Act of 1967 as well as similar state laws. A background check requires a date of birth in order to run criminal records. As discussed in detail in a previous blog on this topic, there are workarounds to allow the background check to proceed that can protect both employers and job applicants. (See previous blog on this topic.): Under federal law, obtaining date of birth is not strictly prohibited, but does create a risk unless an employer makes certain that only the background firm sees the date of birth and it is not asked in a way that tends to discourage or deter workers over 40 from applying for a job based upon an apprehension their age will be used against them. This apparently simple questions once again underscores that employment screening is an area that is heavily legally regulated, and employers need to ensure that their background firm does more then jut provide data, but also understands the legal environment in which hiring occurs. 2. Fake College Accrediting Agencies As mentioned in earlier blogs by Employment Screening Resources (ESR), diploma mills and degree mills have created fake accreditation agencies to try to make fake degrees legitimate. According to one source, the following represents a listing of 30- plus agencies that employers may want to look at in more detail. This list is reprinted with the kind permission of http://www.geteducated.com which is responsible for its content: Here is a list of 30-plus agencies that claim to accredit a variety of online and distance learning college degree programs. NONE of these accrediting agencies are recognized as college accreditors in the U.S. by the Council on Higher Education Accreditation or the U.S. Department of Education. As such, colleges claiming "accreditation" by these agencies are not widely accepted as valid providers of higher education online and should be approached with great caution if online college credibility is important to you.
Source: GetEducated.com, a consumer advocacy group that reviews, rates and ranks screened, accredited online universities: More information on this topic is available at: http://en.wikipedia.org/. 3. Applicants who Embellish their Education Accomplishments From the Employment Screening Resources mailbox: We had an applicant for a job that did not require a degree. However, the applicant listed a degree but it turns out he never graduated and never earned the degree. Can we consider that even though the job did not require a diploma? Answer: Generally speaking, if an applicant is dishonest in the hiring process, there is evidence to suggest that person may well be dishonest once on the job. The dishonesty can be either making a material omission or a material misstatement of fact. Dishonesty is typically a valid reason not to hire. The applicant put down a fake qualification on the application for the employer to consider, and the employer may well take that as an act of dishonesty. The applicant can hardly complain that they are the subject of discrimination, since dishonest people are not a protected class. First, an employer should consider including the following language on the employment application where questions about education are asked: "Please list all degrees or educational accomplishments that you wish to be considered by the employer in the employment decision." This statement has the advantage of putting the burden on the applicant to determine if they want to report a degree or educational accomplishment. The applicant is on notice that any degree they report can be used by the employer for the employment decision. If the applicant chooses to report a worthless degree, or a degree not earned, they can hardly complain if an employer uses that to deny employment, even if the degree was not a requirement of the job. Secondly, an employer may consider adding the following type of language to their application, if not already there: "The information provided by the applicant is true and correct, and that any misstatements or omission of material facts in the application or the hiring process may result in discontinuing of the hiring process or termination of employment, no matter when discovered." This language, in general, protects an employer if an applicant is dishonest, even if the information comes to light after the person is hired. Often times, the key to a successful hire is a well written employment application. For more information on this and other topics, see: The Safe Hiring Manual. 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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