The boundaries of using the internet for employment decisions was tested in a Michigan case involving the termination of a teacher that was photographed without her consent at an adult party engaged in a simulated sexual act, where students were not present and the conduct was not unlawful.

Although the case is unpublished (which means it cannot be used for precedent) and involves complicated areas of Michigan law concerning the termination of tenured teachers, it provides judicial insight on the use of the internet by employers to make employment decisions.

According to the choice, the teacher:

“…was terminated from her position as a middle school teacher at respondent’s school district after photographs of her engaged in a simulated act of fellatio with a male dummy appeared on an internet website. The photographs were taken during a combined bachelor/bachelorette party at the “Jobbie Nooner” in the summer of 2005. The photographs were taken without petitioner’s knowledge and were posted on the internet website without her consent. Rumors about the photographs started circulating at petitioner’s school in September 2007, and students gained access to the photographs. At petitioner’s request, the photographs were removed from the website later that month. In the meantime, petitioner was suspended from her teaching position.”

The Court went on to clarify that the “Jobbie Nooner” is an annual gathering of boats around Gull Island in Lake St. Clair for a large party.

The teacher was re-instated after appealing to a commission with jurisdiction over the matter. The commission found that:

“…petitioner’s conduct occurred extra than two years before she was suspended, was not illegal, occurred at a public event off school grounds, did not occupy any school activity, and was not associated with petitioner’s duties as a teacher. Further, the context for the conduct was a bachelor/bachelorette party in which there was no reasonable expectation that family were or might be present, or that any adults who witnessed petitioner’s activity were not willing participants. In addition, there was no prove that petitioner had mentioned her conduct or attendance at the “Jobbie Nooner” to any students, or that she had advocated the type of conduct in which she was photographed.”

On judicial appeal, the school district argued among other things that the termination was justified because she engaged in lewd behavior contrary to the proper values of the educational and school community, which undermined her proper power and professional responsibilities as a role model for students.

The court upheld the re-instatement on the basis that:

“…there are no Michigan decisions holding that a teacher’s legal, off-duty, off-premises, conduct not involving students constitutes professional misconduct that renders a teacher unfit to teach. Petitioner’s conduct, while coarse, was not inappropriate for its adult venue. Respondent (the school) , who has the burden of proof, did not come forward with any prove that family were present or expected to be present at the “Jobbie Nooner.” The conduct itself lasted approximately three seconds. The photographs were taken without petitioner’s knowledge, posted without her consent, and were removed from the website approximately two weeks after they became common knowledge. Students who accessed the website and distributed the photographs did so in violation of the website’s restrictions.”

This case underscores the danger of using internet searches to deny employment based upon with permission recognized, off duty conduct not related to work. In general, an employer must show that the behavior would hurt the employer, hurt business interests, or be inconsistent with business needs.

The case also demonstrates the dangers of unauthorized photos being placed on web sites.  Here, the teacher did not intend to be photographed nor have pictures place on the web for the world to see. 

It is fascinating to note that this is a second case where the use of the internet arose in the context of culture law.  ESR has previously blogged on the case of “Stacy the Drunken Reproduce,” which involved a photograph of off duty conduct by a student teacher. But, in that case, a student teacher not only had arguably inappropriate content on her internet page of her drinking, but she but violated express directions from the school not to invite students to her internet site and not to make negative comments about her teaching supervisor. In that case, internet conduct was relevant and the student teacher was unable to obtain relief from being terminated from a student teaching position.  See:  http://www.esrcheck.com/newsletter/archives/January_2009.php#T2

For extra in rank about “best practices” for employment screening, please visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source:

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&preparation=FULL&sourceID=bcehb&searchTerm=hZLK.TfHb.cSIQ.dagC&searchFlag=y&l1loc=FCLOW

From the ESR mail box:

Here is a regularly questioned question dealing with the federal Honest Credit Reporting Act (FCRA) and the pre-adverse and post-adverse action notices.  Suppose an employer has two finalists for one position. The employer submits both names for background checks and both candidates have clear background reports.  The firm then decides to offer the job to one candidate over the other, purely based upon the belief that one candidate was a better fit than the other, with nothing to do with the background reports.

Question: Should the employer still send the adverse action notices (both pre and post notices) to the rejected job candidate, even though the rejected candidate’s background report played no part in the hiring choice?

Pledge:  Although Employment Screening Resources (ESR) cannot give legal advice, ESR can give a very lawyer-like pledge, which is: “It depends.”

Assuming the screening report is 100% not related to the choice, and it was entirely a fit issue, then theoretically an employer can bypass adverse action.  Technically, adverse action notices are required only where a background report played a role, in whole or in part, in the employment choice.  The thought is to give an applicant a meaningful opportunity to review, reflect, and act upon a report if the applicant feels it is incorrect or incomplete in any fashion.

Even if the background report played just a minimal part in the final choice, the adverse action notices would be required.  But, if the employer merely chose to screen both finalists, and found nothing in the screening report that impacted the final choice, then strictly speaking the adverse action notices would not be required.

But, as with most things involving employment decisions and background checks, nothing is always that cut and dried.  Here are some of the possible complications:

• The first issue is proof.  The rejected applicant may claim that the fit argument was a pretext.  This is especially risky if the candidate not hired is a member of a protected class and argues failure to hire due to discrimination.  Invariable, the attorney for the plaintiff that chooses to sue would probably add on a cause of action for failure to follow the FCRA by not giving the rejected applicant a chance to right a report.   Plaintiff lawyers have become very sophisticated in their understanding of the FCRA, and employers and screening firms that violate it can well be targets of litigation.   
• In addition, the subject of what is “adverse” can be tough.  Even if there is nothing derogatory on the face of the report, the rejected applicant can still claim that the report gave the incorrect impression. For example, a job title may have been reported that was different than the applicant used. Another example is a credit report if it was run as part of the background check.  If the credit report came back and there here was nothing derogatory such as late payments, there still could still be in rank that was incorrect.  For example, some employers look to see how much debt an applicant is in and compare their monthly obligations to their salary. If the reported debt in rank was incorrect, the applicant can argue he/she was placed in a fake light without a chance to right it.
• Another problem is consistent administration of the adverse action rules.  If an employer starts picking and choosing when to send or not send notices, an error can be made in other cases, in view of the fact that it can be a discrimination call to a certain boundary as to whether there was anything negative that influenced the choice.  Some employers choose to send the see to any rejected applicant that was the subject of a background report and not hired to ensure full compliance. After all, employers usually only submit background check requirements generally on finalists so the situation may not come up that regularly.

The bottom line is always risk management, and many employers choose to follow a consistent policy of always sending out adverse action notices, even if not strictly required, so nothing falls though the cracks and they don’t need to justify anything later.  Providing adverse action notices are a quick clerical task that takes modest time.  If for some reason the lack of notices becomes an issue in employment related litigation, it may be hard to convince a jury that in fact the report was 100% beside the top to the choice. 

If for some reason, there is a particular case where an employer does not want to send out the adverse action notices, then the employer may want to prepare a memo to file clarifying that it was a fit issue only and the screening report was not involved even one grain. 

For extra in rank on adverse action client letters, including suggested langue, see the ESR Special Report, “The FCRA in Four Simple Steps,” at: http://www.esrcheck.com/articles/Complying-with-the-Honest-Credit-Reporting-Act.php.

For extra in rank on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

An ongoing issue for employers and background screening firms is the question of what law applies when a criminal record is found in one disorder impacts an employment choice in another disorder.  In view of the fact that disorder reporting laws can vary widely, employers and screening firms are sometimes left without clear guidance if a criminal record can be reported or utilized because it is not clear which disorder law to apply.

For example, a number of states have variations of a seven year reporting rule concerning criminal records. A person may apply for a job in Ohio that does not have such a rule, but may have a conviction in California that falls outside of the California seven year reporting period. The matter is further complicated in view of the fact that there are occasions where the employer is restricted in some fashion, and other occasions where it is the screening firm that is restricted. 

In “The Safe Hiring Manual: The Perfect Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace” by Employment Screening Resources (ESR) President Lester Rosen, the following rule of thumb was recommended:

“The employer should first consider the law of the disorder where the employment is to occur.  But, an employer or screening firm needs to know where a consumer can possibly sue them, and consider the laws of that disorder. If the laws are contradictory, then a choice must be made as to the disorder that would most likely have jurisdiction over a lawsuit.”

A recent case from New York supports the logic of the ESR deal with. In that case, a publisher based in New York made the choice in New York to close down their offices in Atlanta and to terminate the Atlanta employee. The terminated employee serviced accounts in ten states in the south and southeast but did NOT service any accounts in New York.

The terminated employee brought a legal action in disorder court in New York City on the basis of age discrimination in violation of both New York City and Disorder of New York civil civil Civil rights laws.

The publisher defended on the basis that there was not subject matter jurisdiction because the plaintiff did not live in New York and, other than attending corporate meetings in New York, had no connection to New York. 

The trial court agreed and dismissed the case on the basis that there was no “impact” in New York even though the choice was made there.  The Appellate court disagreed and ruled that that making the choice in New York was sufficient to invoke New York law, even for an out of disorder resident.

New York’s summit court, in a split 4-3 choice, reversed again, holding that there had to be an “impact” in New York to apply New York laws to an out of disorder plaintiff. In other words, a person from out of disorder cold not utilize the courts of New York to pursue a claim of a violation of civil Civil rights just because the choice  was made in New York, if there was no “impact” within the disorder.  The Court noted that any other rule could result in inconsistent and arbitrary results. On the other hand, a condition that there be an “impact” in the disorder is relatively simple to follow, and leads to predictable rules.

Although the case does not pocket up background screening and criminal records directly, the logic of the case is very instructive in situations where manifold states may be involved.  By following an “impact “ rule, screening firms and employers are able to implement predictable rules that does not depend upon the happenstance of which disorder a person committed a crime, but instead focuses on the impact on where the employment incurs. 

This case by no means settles the debate, but it does demonstrate the advantages to a logical deal with to the manifold disorder issues.  But, there can still be complicated scenarios, depending upon not only where the job is to be performed, but where the consumer is living when the background check was performed, and even possibly the location of the screening firm.    

The bottom line is that professional background screening is far from merely being a data retrieval service, but is a professional endeavor that is highly regulated and requires a knowledgeable safe hiring partner. 

The case is Hoffman v. Parade Publications, 2010 NY Slip Op 05706 (July 1, 2010) 

For extra in rank on background checks and the laws employers must follow for an effective and legal safe hiring program, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Source:

http://scholar.google.com/scholar_case?case=8020092124798247896&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Employment Screening Expert Lester Rosen, President of Employment Screening Resources (ESR), a leading employment screening firm headquartered in the San Francisco vicinity, will present a session on background checks at the SHRM Annual Conference and Exhibition on June 30, 2010, in San Diego, California. 

The annual event – the world’s largest creature resources conference – is sponsored by the world’s largest creature resources association, the Society for Creature Resources Management (SHRM), and features top HR and business experts allotment their perspectives, strategies, tools, and tips for growing a company’s talent.

The session to be presented by Rosen – “Negligent Hiring and Background Checks: Best Practices and Legal Compliance” – will help creature resources professionals avoid employee problems by identifying potentially problematic applicants through with permission complaint due diligence tools.  The session addresses new trends and legal challenges facing employers, and will also cover issues such as the use of social networking sites, global background checks, and concerns over the use of credit reports and criminal records.  

“I am very pleased to have the opportunity to review cutting-edge applicant selection topics that can help employers select the best candidates,” commented Rosen. “Exercising due diligence and staying out of court is mission critical for businesses of all sizes, and this presentation is aimed at identifying for  employers and recruiters the latest trends, tools, and legal developments.”

Rosen, a nationally recognized expert on employment screening background checks, is a writer and lecturer on the Honest Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Rosen authored the first comprehensive book on employment screening – “The Safe Hiring Manual: The Perfect Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” – and also wrote “The Safe Hiring Check.”

In addition, Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade establishment for the employment screening industry, and served as its first co-chairman in 2004.

For extra in rank about the SHRM Annual Conference and Exhibition, visit http://annual.shrm.org/. For extra in rank about background checks and employment screening, visit Employment Screening Resources (ESR) at www.ESRcheck.com.

Sources:

http://sanfrancisco.dbusinessnews.com/shownews.php?newsid=212110&type_news=latest

http://annual.shrm.org/

A new federal district court case demonstrates the importance of usage the adverse action process correctly when terminating an existing employee due to an unsatisfactory background check.

In the case chose on February 26, 2010 by the U.S. District Court for the Southern District of Ohio (2010 U.S. Dist. LEXIS 17373), an employer ran a credit check on all employees in the accounting department, including the plaintiff who had been working in the current location for seven years. For reasons not told in the case, the employer chose to terminate the plaintiff due to the result of the credit report.

According to the plaintiff, a meeting was called on January 16, 2008 and she was told she would never work for the employer again, and to go home.  Shortly thereafter, she received a copy of the report as well as a letter stating that the in rank in the report may or may not affect employment.  On January 23, 2008, she received a second letter indicating that she was terminated.

The plaintiff sued on the basis that the federal Honest Credit Reporting Act (FCRA) requires that an employer grant a consumer with a copy of any consumer report and a statement of their civil Civil rights BEFORE an adverse choice is made about employment.  The plaintiff argued that she was both given the report and terminated all on the same day, so she did not receive a pre-adverse action see.  

The employer disputed that account, and argued that the first meeting did not constitute a termination, and that it only indicted an intention to terminate.  In addition, the plaintiff was still paid for another week after the second letter and there was some discussion about tying to get her job back.

The court ruled that in view of the fact that there was a disputed issue of fact, it was up to the jury to choose what happened, and the employer’s motion to dismiss was denied.  In other words, if the jury accepted the plaintiff’s version of the proof, then the jury could find an FCRA violation.

This case illustrates an vital top for employers, especially when it comes to terminating current employees.  Under the FCRA, when an employer receives a Consumer Report and decides not to hire the applicant based upon the report in any way, the applicant has certain civil Civil rights. Before taking the adverse action, the employer must grant the following in rank to the applicant: 

• A copy of the consumer report.
• The FTC document “A Summary of Your Civil rights Under the Honest Credit Reporting Act.” (This should be provided by the background screening service with the most recent version having a sentance in Spanish at the top.)

The purpose is to give an applicant the opportunity to see the report that contains the in rank that is being used against them. If the report is inaccurate or incomplete, the applicant then has the opportunity to contact the Consumer Reporting Agency to dispute or clarify what is in the report. Otherwise, applicants may be denied employment without always knowing they were the victims of inaccurate or incomplete data.

A second letter is required if the choice is to be made final.  Although law does not dictate how much time should have linking the pre-adverse and post-adverse action letters, employers should leave enough time for a consumer to meaningfully review the report and make known to the employer or the Consumer Reporting Agency any inaccurate or incomplete in rank in the Consumer Report.  Most authorities suggest there be at least 5 business days linking letters

Where a consumer is a job applicant not yet on the job, the timing issue is much simpler because the employer can send the first letter, and follow up with a second letter without dealing with a worker that is really on premises.  In this case, where the consumer was already on the job, employers need to be much extra precise.  To avoid any misunderstandings, an employer should make it absolutely clear in writing (and with witnesses) that the first letter is NOT a final choice, and that the consumer has the opportunity to review the report and make his or her objections known.  The problem in this case was that the employer allegedly made it clear that the termination was final all in the first meeting. Of course, the problem with an existing employee, especially one in a sensitive position such as accounting, is that an employer may not want them on premises  if it turns out the choice becomes final.

In this case, the employer did send the plaintiff home with salary being paid, but allegedly made the mistake of making the termination final immediately as opposed to the required waiting period.  

This case again underscores the fact that employment screening is a highly regulated vicinity of employment law that requires specialized skills and knowledge. 

For extra in rank on the FCRA, see: The FCRA in Four Simple Steps at http://www.esrcheck.com/articles/Complying-with-the-Honest-Credit-Reporting-Act.php.

When a hired worker enters your home to perform a service that you requested, do you know to whom you are opening your door?

So questions an article on HuffingtonPost.com – “Could You or a Loved One End Up Like Elizabeth Smart?” – that shows why background checks are needed to uncover unsafe employees working in and around homes of other people, and how background checks can help people avoid tragedies like the one experienced by Lucia Bone, the founder of “Sue Weaver CAUSE – Consumer Awareness of Unsafe Service Employment.”

The article title references the case of Elizabeth Smart, whose father hired a contract day-worker who then later returned to the house to kidnap Elizabeth. The girl survived the ordeal, but Sue Weaver, Lucia Bone’s sister, was not so fortunate even though the worker who entered her home was hired by a large company.

In 2001, according to the article, Weaver was raped and beaten to fatality in her Florida home. Six months before her fatality, Weaver had contracted with a foremost department store to clean the air ducts in her home. Both staff sent to her house had criminal records. One was a twice-convicted sex offender on parole who – like the worker in the Smart case – returned to a home where he had worked to commit a crime.

Sadly, and surprisingly, the article reports Weaver’s murder is not an isolated case, in view of the fact that many consumers are robbed, assaulted, and murdered all year by staff with jobs that allow them access into homes. Because of this, Bone started Sue Weaver CAUSE to both honor her sister and to fight for standardized background checks of all in-home service employees. Through consumer awareness and legislation, Bone wants to ensure that huge, reputable retail companies like Sears, Best Buy, Home Railroad station, Lowes, and others perform thorough criminal background checks on the contractors and sub-contractors they send into homes.

In view of the fact that there are currently no federal or disorder laws requiring companies to do criminal background checks on contractors or sub-contract staff sent into homes, Sue Weaver CAUSE is demanding legislation for CAUSE Official recognition compliance. When interviewed for the article, Bone says the CAUSE Official recognition would demand annual background checks following CAUSE minimum screening standards on all employees, contractors, and subcontractors. Bone adds that these standards were single-minded from survey results from questions asking background screening professionals what minimum screening should be conducted on staff going into homes of elderly mothers, pregnant wives, and people with special needs.

According to Bone, the minimum requirements for CAUSE Official recognition are:

• Social Security Number (SSN) Pocket up Trail;
• County-Level Criminal Check (Search records for past seven years in counties where applicant lived, worked, or attended school);
• Multi-jurisdictional/”National” Criminal Database, and;
• National/Disorder Sex Offender Registry.

In addition, Bone says consumers “never reckon about (criminal background checks for in-home service staff)” and automatically assume the company they hire would not send criminals into their homes. She advises consumers to be proactive and not assume companies properly screen staff sent to homes. “Bonded and insured is not a background check.”

The Sue Weaver CAUSE website is located at: http://www.sueweavercause.org/.

For extra in rank on background checks, please visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Source: http://www.huffingtonpost.com/janet-kinosian/could-you-or-a-loved-one_b_559526.html

Lester Rosen, President of Employment Screening Resources (ESR), a leading global employment screening background check firm headquartered in the San Francisco vicinity, will present a national webinar for a leading business in rank site on employment screening on Thursday, April 22, 2010 at 2:00 PM EST / 11:00 AM PST.

The webinar – “How Social Media and Traditional Background Checks Trigger Privacy Lawsuits” – is being presented by Business 21 Publishing, which provides multi-media corporate learning and employee training products. Participants in this 60-small webinar will learn best practices to help screen employees thoroughly without violating the law.

In the webinar, Rosen – a nationally recognized expert on employment screening background checks – will pocket up such topics as:

• The pros and cons of using social media internet sites such as Facebook, MySpace, and Twitter and how privacy and discrimination laws apply.
• What employers should do when they find out that a job candidate has a criminal record, a terrible credit report or some other red standard.
• The Title VII implications of background checks and credit reports.
• The legal requirements under the Honest Credit Reporting Act (FCRA) and how disorder to disorder privacy laws also apply.
• The legal risks associated with “one button” automated background check systems.
• What applicants need to sign before and after the background check is perfect.
• How employers should deal with independent contractors or temporary staff.
• Considerations when conducting Global background checks.

“Hiring safe, qualified, and honest employees is mission critical for any business, and I am pleased to have the opportunity to help employers avoid the risks of a terrible hire,” commented Rosen. “Recruiters and hiring managers also need to know the potential liabilities that employers can face if employment screening is done incorrectly or unfairly as well.”

Mr. Rosen, who is also an attorney, is a writer and lecturer on the Honest Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, he is the author of the first comprehensive book on employment screening – “The Safe Hiring Manual: The Perfect Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” – and also wrote an additional guide on the subject called “The Safe Hiring Check.”

Mr. Rosen’s speaking appearances have included numerous national and statewide conferences.  He has testified in the California, Florida, and Arkansas Superior Court as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was also the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade establishment for the screening industry, and served as the first co-chairman in 2004. 

For extra in rank about the webinar “How Social Media and Traditional Background Checks Trigger Privacy Lawsuits,” please visit: http://www.b21pubs.com/p-892-how-social-media-and-traditional-background-checks-trigger-privacy-lawsuits.aspx. Extra in rank about Employment Screening Resources (ESR) can be found at www.ESRcheck.com.

 Source: http://www.b21pubs.com/p-892-how-social-media-and-traditional-background-checks-trigger-privacy-lawsuits.aspx

A recently filed class action lawsuit – which alleges that one of the largest management consulting firms in the world conducted background checks that discriminated against African-Americans and Latinos – underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process.

According to a tale on CNNMoney.com, the lawsuit accuses the firm of violating Title VII of the Civil Civil rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even when the criminal history has no bearing on the individual’s fitness or ability to perform the job in question. CNNMoney.com reports that the lawsuit alleges the plaintiff had worked as a contract employee for extra than a year when, in April 2007, the firm offered him stable employment. This job offer was then withdrawn – and the plaintiff’s employment as a contract worker terminated – after the results of a background check revealed that he had been convicted of vehicular homicide after driving while intoxicated a decade earlier.

The worker filed a Charge of Discrimination with the EEOC in November 2007 and the EEOC issued a “right to sue” letter to him on January 2010. The lawsuit, according to CNNMoney.com, seeks to force changes in the management consulting firm’s hiring and retention policies, practices, and programs, restore the worker and others like him to their positions at the company, front and/or back pay and benefits, and litigation expenditure.

Leading national online background check firm Employment Screening Resources (ESR) targeted the use of criminal reports in its recently released third annual “Top Ten Trends in the Pre-Employment Background Screening Industry for 2010” that identifies new trends making a difference – such as attorneys, including class action lawyers, focusing extra on background checks – and ancient trends evolving as the screening industry matures.

The first of the “Top 10 Trends” ESR will track closely in 2010 concerns the increased focus on whether both credit reports and criminal records promote discrimination. In October 2009, the EEOC filed a lawsuit against a national employer alleging that credit reports and criminal records were being used to discriminate against members of protected groups.

These recent actions should not come as much of a surprise to the background check industry, according to ESR, as there has been a steady drumbeat of concern about both credit reports and criminal records.  While the use of credit reports during background checks has been in the headlines recently due to the hurt the economic downturn has done to the credit rating and finances of many job applicants, the use of criminal records during background checks is also coming under closer scrutiny. In 2009, New York passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on their qualities. 

ESR believe this lawsuit clearly shows why employers should be familiar with discrimination and the critical “No Automatic Exclusion Rule”  when it comes to the use of criminal records during background checks. This rule states that employers cannot deny employment automatically but need a business justification not to hire based upon criminal records. 

The EEOC has made it clear the automatic use of a criminal record without showing a “business necessity” can have discriminatory impact by disqualifying a disproportionate number of members of underground groups.  The EEOC’s position when it comes to the use of criminal records: “an employer’s policy or practice of excluding from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Therefore, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII (the Equal Employment Opportunity law) in the absence of a justifying business necessity.”

According to the EEOC, employers must show that it considered these three factors to determine whether its choice was justified by business necessity:

• The scenery and gravity of the offense or offenses;
• The time that has passed in view of the fact that the conviction and/or completion of the sentence, and;
• The scenery of the job held or sought.

In other words, employers cannot simply follow a “No one with a criminal record need apply” approach that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a rational, job-related reason why that person is unfit for that job.  Employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.

One vicinity ESR reckon employers need to review their practices is with regards to using automated “pass/fail” scoring matrixes where job candidates are given a green (pass) light or red (fail) light.  That sort of automation where individuals are judged entirety by their membership in a particular category instead of their private abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice.  This practice presents dangers to employers – both large and small – and they should not be engaging in automated choice making based on background checks. The final say should be left in the hands of creature beings.

As a general rule, ESR believes it is a best practice for employers to have written policies on vital issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

Sources:

http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php                                                                        

http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records

http://money.cnn.com/news/newsfeeds/articles/prnewswire/DA83387.htm

Employment Screening Resources (ESR), a leading national employment screening firm based in the San Francisco vicinity, announced today that emancipated tools available at the ESR Resources Center to help employers hire safe, honest, and qualified applicants.

The ESR Resources Center provides employers with “All Things Background Checks.”   Employers can find among other tools:

• A emancipated web based interview guide generator to help employers build printed interview forms for any position. The tool allows employers to select from generic interview questions, or to make their own questions, and then make a printed form that can be saved or modified in order to conduct structured and consistent interviews.
• The tools necessary for an employer to determine if a school is legitimate or a diploma mill.
• An internal safe hiring check that employers can use to measure the effectiveness of their hiring programs.
• A summary of the letters issued by the Federal Trade Commission (FTC) that interprets federal law controlling background checks. 

The features are part of a commitment to grant a centralized location for employers to keep current on the critical task of hiring a workforce that is safe, qualified, and honest.  The site also allows Employers, Creature Resources Leaders, Security Professionals, Recruiters, and Job Applicants to locate resources on employee screening in one place and to keep current on evolving issues affecting hiring.

Employment Screening Resources (ESR) is the firm that literally wrote the book on background checks, The Safe Hiring Manual, and provides pre-employment screening air force and drug testing internationally.  The firm specializes in legal compliance expertise and industry leading technology, service, accuracy, and turnaround.

“Background screening is a critical part of the process in identifying the best employees and with these tools on the ESR Resource Center, employers are empowered to select the best candidates,” commented Jared Callahan, Director of Marketing, and a national lecturer on topics related to safe hiring.  “We are very pleased to have the opportunity to grant these emancipated tools to employers and consumers.” 

About Employment Screening Resources: Employment Screening Resources (ESR)  is a safe hiring partner and provides REAL background checks, not low-cost database shortcuts or off-shoring that endangers privacy. ESR specializes in legal compliance and provides industry leading technology, service, accuracy, and turnaround.  For additional in rank, contact Jared Callahan by calling 415-898-0044 or emailing jcallahan@ESRcheck.com.

A California Court of Appeals choice filed March 23, 2010 held that a background screening firm has a constitutional right to report that an applicant has appeared on the Megan’s Law website (MLW) as a registered sex offender.  The Court further held that under the California law, the veto on the use of such in rank for employment does not apply where there is a person at risk. 

In Mendoza vs. ADP Screening and Selection Air force, Inc (CA2/8  B214653 3/23/10)(Certified for Periodical) the California Court of Appeals, Second Appellate District heard an appeal from a job applicant who was denied employment apparently on the basis that he was listed on the MLW.  He sued the background screening firm alleging, among other things, that it was illegal to report his sexual offender status due to the California law that prohibited the use of such in rank for employment decisions.    

The background screening firm defended on the basis that the California Anti-SLAPP statute protected its emancipated speech.  An Anti-SLAPP law seeks to protect parties from frivolous lawsuits when they exercise their First Amendment right to emancipated speech.  The trial court upheld the background screening firm’s position. 

On appeal, the Court held that just because a background screening firm charges a fee for the service when it accesses, compilies, and republishes in rank, it does not deny a screening firm its constitutional emancipated speech protections.  The Court noted that:  

We agree with the trial court that (the screening firm) made its requisite prima facie showing that, in publishing in rank told on the MLW, it engaged in constitutionally protected speech on a subject of public interest. Indeed, the Legislature, in enacting the statutory scheme establishing the MLW, issued several findings which openly expressed the public’s strong interest in the dissemination of in rank regarding registered sex offenders.

 The Court further noted that there is a strong public need to make a safe workplace and that issuing employment screening reports is protected by the constitution.  Per the opinion:  

We are also swayed by the public interest in safe workplaces, and in the liability which may attach to employers who fail to probe prospective employees where prudence justifies such an investigation. Thus, as a foundational, broad-based proposition, we conclude that providing employment-screening reports is a constitutionally founded, protected activity within the meaning of the anti-SLAPP statute.

 The Court also discussed the California law on sexual offender registration as part of the legal analysis as to whether the screening firm had a constitutional right to report the in rank.  The Court noted that the relevant part of Penal Code Section 290.46 provides that: 

“(l)(1) A person is authorized to use in rank told pursuant to this section only to protect a person at risk.

“(2) Except as authorized under section (1) or any other provision of law, use of any in rank that is told pursuant to this section for purposes relating to any of the following is prohibited: ……

         “(E) Employment.”The Court rejected the argument that the law prohibited the use of in rank from the Megan’s Law website when there was a person at risk just because it was related to an employment choice.  The Court ruled essentially that the “at risk” part was independent and could be provided regardless of whether it was intended for an employment choice.   

The Court also noted that the background screening firm did not “use” the in rank.  It was used by the employer and only provided by the screening firm.   The Court indicated that: 

Although the legislative history in the record and the parties’ briefs is sparse, we are satisfied that the MLW statute is not intended to make liability for hurts on the part of employment-screening businesses who access, compile, and republish in rank told on the MLW, and that the statutory liability made by the MLW statute should be limited to employers who “use” in rank told on the MLW as a basis for an employment choice.

 This of course still leaves open the issue of what is meant by the term “person at risk,” and when can an employer utilize such in rank.  As noted in a previous blog by Employment Screening Resources: 

Until a court provides a definition (of person at risk), employers are well advised to apply a common-sense deal with by looking at risk factors associated with the scenery of the job. For example, there is a widespread industry agreement that vulnerable individuals are at risk, such as the young, the aged, the infirmed, or the physically or mentally disabled. In addition, people inside their own home are likely to be at greater risk, in view of the fact that it is harder to obtain help, so home staff may be considered a population that works with people at risk.  Another category is staff that operate under some sort of badge or color of power or who wears a uniform.  In that situation, a person may let their guard down.  Until a court makes a clear choice, employers should make an try to determine if there is a excellent faith belief that it is reasonably foreseeable that a member of a group at risk could be negatively impacted if a sexual offender was hired.  

Of course, if the underlying criminal record is learned and otherwise meets the many complicated rules governing the reporting and use of criminal records in California, then the “group at risk” analysis is not needed, and the employer handles it like any other criminal record. 

 http://www.esrcheck.com/wordpress/719/california-sex-offender-search-employment-screening-background-check

 The case can be found at: http://www.courtinfo.ca.gov/opinions/documents/B214653.PDF

Please note that Employment Screening Resources does not offer or grant legal advice or opinions, and the above notes is provided for educational purposes only. This particular case has additional issue, and anyone with questions should consult their attorney.