Nightmare for applicants and screening firms

Not sure how to describe this one, but a recent headline in the Cleveland Plain Dealer could pose a nightmare for us all. Summit County Cases Proceeded Without Formal Charges. My wife actually found this one this morning reading our edition of the Plain Dealer, this one hits closer to home because we live in Summit County! When the prosecution virtually ignores the Grand Jury and Prosecutions Nolle Prosequi status and charges the individual anyway, where is the Due Process? How in the world would an employment screening company and, or an employer adjudicate the results of a background check when the case should not have been indicted in the first place? Food for thought, I know the answer but its a good starting point for some good old fashioned commenting to this post!! Comment away!

employeescreenIQ Releases Latest Newsletter

We've just released the latest edition of our Quarterly Newsletter, The Verifier. Please feel free to check it out.

http://theverifier.net/index.php

Hurry Up and Wait: DHS to Revise No-Match Rule

The on-again off-again drama with the DHS No Match initiative continues according to this legislative update from Seyfarth Shaw.

On Friday, November 23, the Department of Homeland Security (DHS) requested that a federal judge stay the litigation regarding its new Social Security “no match” rule. Rather than proceed with the litigation, DHS plans to revise the rule to address the court’s concerns about the rule’s legality. DHS intends to begin a new rulemaking process in December. More

Will this political game of hot potato ever end?

Identity Theft

Just found a great informative article about identity theft. Linda Foley is quoted from the Identity Theft Resource Center. I have met Linda several times most recently at the National Association of Professional Background Screeners (NAPBS) Conference. While Linda is not an expert in Pre-employment Screening, she is in expert in identity theft and privacy. Kudos to Linda and all the great work she is doing.

Holiday Forecase: More e-scams

By Richard Burnett | Tribune Newspapers: The Orlando Sentinel November 26, 2007

ORLANDO - Just in time for "Cyber Monday" and the online holiday shopping rush: A new round of bogus e-mail, identity-theft experts say.

Have you won $2 million in a Christmas sweepstakes held by Coca-Cola in the United Kingdom? Can you make big bucks just by cashing checks for an Irish researcher, Chinese exporter or rich oil consultant in Dubai? Is there a problem with your account at Bank of America, JPMorgan Chase, eBay or PayPal?

No. But you might think so if you fall for some of the recent e-mail scams infesting the Internet.

More

Background Screeners Held Accountable for Inaccurate Work

We've been following a case in the 9th Court of Appeals that is noteworthy for our industry and those that conduct background checks. The case, Dennis v. BEH-1 and Experian Information Solutions involves an individual who requested a copy of his credit report. The results indicated that there was a judgment against him in a civil case. In fact, Mr. Dennis was ordered to pay his landlord $1,959. However, at the time of judgment he entered into a stipulation that allowed for a "no judgment" so long as he made payments on the debt that triggered the litigation. Mr. Dennis did in fact make proper restitution so he disputed the results with Experian stating that that because he made the payments, the case shouldn't be considered a judgment against him.

Experian sent a researcher into the court again to verify the results. The researcher came back and confirmed the original findings. Case ends here, right? Wrong!

Mr. Dennis filed suit against Experian for failing to correct the report and a court ruled in favor of Experian saying that Experian couldn't be held accountable for the public record. Mr. Dennis then filed an appeal and here's where things get interesting. Evidently, if the researcher would have looked at the case file, they would have seen the order about the stipulation. Taking this into account, the appellate court reversed field and ruled that Experian failed to "maintain reasonable procedures" to ensure the accuracy of its reports.

It wasn't the initial findings of Experian that led to this decision. It was their failure to look deeper once the consumer disputed the findings and disclosed the stipulation.

What does this mean? This means that Consumer Reporting Agencies better take seriously their obligation to ensure the accuracy of the public information it reports. This has always been a hallmark of our service and we have always maintained procedures to ensure the accuracy of the information we provide to our clients. That doesn't mean that information can't be flawed when it is first reported. However, that's why you have convictions reviewed for accuracy before you report them. But even that isn't a guarantee 100% of the time. And when an applicant disputes the findings, you better make sure to follow up properly and responsibly.

USCIS Releases New I-9 Form

On Wednesday November 7th, US Citizen and Immigration Services released a revised Employment Eligibility I-9 form to be used by employers. All U.S. employers are mandated by Federal law to have all employees complete an I-9 form within the first three days of work. The use of the newly released form is not yet mandated, but soon will be. Feel free to download a copy of the new form below:

New I-9 Form

Final Rules Issued for Identity Theft Prevention

The FTC and the federal financial institution regulatory agencies have submitted their final rules and guidelines on how creditors and financial institutions must handle identity theft "red flags" and address discrepancies.

Highlights of the rules include the following measures that must be taken:

1. Identify relevant patterns, practices, and specific forms of activity that are “red flags” signaling possible identity theft and incorporate those red flags into the Program;
2. Detect red flags that have been incorporated into the Program;
3. Respond appropriately to any red flags that are detected to prevent and mitigate identity theft; and
4. Ensure the Program is updated periodically to reflect changes in risks from identity theft.

These guidelines seem like things you would think most creditors and financial institutions would already be doing. Hopefully, these measures can help protect consumers.

Click here to view the entire FTC Release

California Regulations on Background Checks Backfire for FedEx

For those outside the state of California, you might be surprised to learn that employers can only consider criminal convictions on an applicant's record that have taken place within the past seven years. The state enacted these laws to help those with past convictions on their records get on with their lives and to remove the potential barriers to employment. Seems like a pretty noble cause until you consider what has recently taken place at FedEx.

FedEx Fires Employee, An Unregistered Sex Offender

FedEx claims to have conducted a background check on an employee that had a forcible rape conviction on their record from 1978, and they probably did. The problem is that when they conducted the check, due to the California law, they weren't allowed to see the past conviction; and even if they were allowed to, they couldn't consider it. The employee made it even more difficult by failing to register as a convicted sex offender and FedEx only found out when authorities caught up with him for failing to do so. This has obviously created an embarrassing situation for FedEx and could have put them in hot water should something have happened.

If you ever read this blog, I know I'm going to sound like a broken record, but you have to trust employers with this information so that they can make an informed decision that insulates their employees, their customers and their business from negative incidents. I think that the state of California's inclination to wipe the slate clean on past convicts has merits, but it's got to be balanced with what can happen if you don't allow the information to be considered.

New U.S. Immigration and Customs Enforcement Rule (Ice) Creates Greater Risk for Employers

Check out this update from Seyfarth Shaw concerning a recent rule established by ICE concerning tougher enforcement of Social Security Mismatch Numbers.

Social Security Mismatch Letters: New ICE Rule Increases Risk to Employers

Employers that don't properly follow up on and resolve errors stemming from workers with social security numbers that come back as mismatches now face greater risk. If the government actually follows through on this employers should take note.

There are some affective tools out there for proactively determining an employee's right to work status. One such tool is the Electronic I-9 Process which has developed by experts to allow employers to fill out a "smart" electronic I-9 form and submit it to the Social Security Administration and Department of Homeland Security for instant status. They then can electronically archive the report and the results. It's a great solution to handle the I-9 process, but until the federal government enacts and enforces legislation my experience is that employers aren't going to bite.

Legislative Updates from Seyfarth Shaw

Many of you may be aware of the law firm Seyfarth Shaw LLP. They are one of the country's largest labor and employement firms and widely respected as a foremost expert in such matters. employeescreenIQ is proud to be a client of this esteemed firm and as such get regular legislative updates from them concerning employment topics that can affect all of us.

Seyfarth had been kind enough to allow us to post such updates in this blog, so beginning today we will screen these updates for information that might be of interest to our loyal blog readers.

Just another opportunity for us all the learn together.

ABA Commission Drops Proposal to Seal Criminal Records

ABA Commission Pulls Proposal on Criminal Records

Thankfully, the American Bar Association caved in to business advocacy groups in it's efforts to seal certain criminal convictions from the records of those seeking employment.

As I've said in the past and will continue to say as this issue comes up, it is not the goal of an effective background check to exclude people from getting a job. The purpose of a background check is to make an informed decision about a candidate. Just because someone has a been convicted of a crime should not alone disqualify that person from employment. However, employers shouldn't be left in the dark. They are the ones who will be left holding the bag if something happens. If you want to correct this problem, teach employers how to make proper decisions and hold those accountable who do not.

Thank you to the folks at BRB Publications for bringing this story to our attention.

Interview with Experian's Maxine Sweet

I recently conducted an interview with Maxine Sweet, Vice President of Public Education at Experian. The interview was geared towards getting the low-down on the often misunderstood topic of Credit Reports and their use in hiring decisions. The article was published in our quarterly newsletter, The Verifier.

Hopefully, this sheds some light on what a credit check is and how it can be used to make an informed hiring decision.

State of Georgia Mandates Verification of Work Status

Another day, another state passing a law that requires employers to verifiy their employee's work eligibility status. (Okay, this actually took place on June 29th, but I've been busy blogging about other topics) This time, the State of Georgia has enacted Senate Bill 529 that mandates that all businesses the contract with the state and have 500 or more employees must confirm their employees legal right to work status with the Social Security Administration or Department of Homeland Security (DHS)for residents of other countries who are legally permitted to work in this country.

In addition to enforcing federal immigration laws, the state feels that this measure will discourage those doing business with the state from human traffiking and taking state deductions for undocumented workers.

What I find interesting about this measure is that they only require this of those that employ over 500 employees. Why? Do they trust that small employers wouldn't hire illegals and are they just starting somewhere? Also, this should be an interesting test case for the state. What if these contractors now cannot find enough legal workers to complete the jobs the state has contracted for? Do they rescind this measure? Do they look for out-of-state contractors? Can they require out-of-state contractors to do the same? Will they eventually mandate this for all employers in the state of Georgia?

Who knows? We'll keep following this story and update you from time to time.

Applicant Release & Authorization: An FCRA Must

One of the most basic mandates outlined in the Fair Credit Reporting Act (FCRA) is the need to obtain a signed release from a job applicant before allowing a Consumer Reporting Agency to conduct a search for employment screening purposes. A compliant release informs the applicant about the scope of the search, who will be conducting the search and grants the employer with the waiver they need to execute a background check. It is a simple process, but when not followed can cause all sorts of trouble for employers, as illustrated in a recent Washington Post Report about large organizations in the rail road industry's failure to do so.

Further complicating matters was these employers failure to notify candidates when they were not hired due to adverse information being found on reports and their failure to authenticate the records to ensure that they indeed belonged to the subjects of these reports. This is another big FCRA no-no. Those who are not hired due to adverse information found on their background check must be provided with a letter that states so, that provides information on disputing their record and includes a free copy of the background check. As you can see from this article, it appears that none of this was done.

The good news is that the process for following these mandates is extremely easy. A couple quick forms and some best practices advice from your counsel and, or your employment screening provider and the problem can be fixed. Remember though that the process is supposed to fair to all parties. Employers must protect the rights of their candidates so that their right to seek a background check is also protected.

State of Arizona Set to Mandate Tougher Regs for Employment Eligibility

Some trends take longer than others. Take for instance beanie babies, bell bottom pants, swatch watches, or cabbage patch kids. These things took off like wild fire. For better or worse, it seemed like everyone couldn't wait to participate. Okay so maybe the trend for states to enforce employment eligibility laws isn't setting world records for speed, but Arizona is now set to be the second state to pass a law that puts teeth into the enforcement of only hiring legal U.S. citizens and it is believed that Georgia is close behind. Arizona house bill #2779 threatens to suspend the business license of first time offenders and even includes a "death penalty", permanent revocation of a business license for failing to verify work status on all employees. Of course, so far the state's efforts are only being bolstered with a $100,000 budget, but if these efforts actually do take shape, employers in the state of Arizona better take note, and fast!

I was recently speaking with an employment attorney about states adopting such laws for the enforcement of a federal statute and she questioned whether the state could actually adopt legislation that mandates the enforcement. It's a question I still haven't been able to answer but one that we should most definitely follow up on.

In the meantime, should this trend continue, it puts further onus on the employer to ensure that their employees are working legally in this country. It dictates that they must spend more time making sure that I-9 documentation is filled out correctly, that identification be scrutinized and that the employer confirm the employees eligibility status with the Social Security Administration. With the threat of the aforementioned sanctions, failure to do this could really hurt . . . now.

International Background Checks

As more organizations participate in the global economy, international background checks are becoming increasingly important.  However, as opposed to conducting background checks in the United States, the rules and methods for doing so are not clearly defined.  For instance, the type of information varies from country to country.  By and large, the most common types of overseas checks are limited to Criminal Records Searches, Employment and Education Verifications and Terrorist Watch List Searches.  However the depth and detail of information can differ greatly by country. 

Further, there is no international version of the Fair Credit Reporting Act (FCRA) that governs the use of background checks.  Organizations can become Safe Harbor Certified with the U.S. Department of Commerce.  Such a certification mandates some general best practices when it comes to applicant authorizations and the transmission of private information across international borders.  In general, it is best to afford overseas applicants with the same rights as domestic applicants when no clear regulation has been established (i.e. dispute resolution).

Lastly, since every country operates differently it is important to know where to access information, what information is needed to locate records and what you can expect in terms of results, turnaround time and cooperation. 

A good screening partner should be able to help you with direction and recommendations on all of the above.  Know of any?

Credit and Background Checks

Many companies utilize credit checks as part of their pre-employment screening programs.  While credit checks are often confusing, they can shed light on an applicant's personal responsibility.  It is important for employers to bear in mind the following when contemplating this type of search.  First the basics, you must have a signed authorization from the applicant before you can check their credit.  Second, you want to make sure that credit is not the only thing that you look at to determine an applicant's suitability for employment.  Other valuable pieces of a background check can include a criminal record search, employment verifications, education verifications, etc.  Next, you want to make sure that you evaluate how poor credit might affect your candidate's ability to work in the position they seek.  Credit checks are great for executive level applicants, those in the financial sector or those and, or those with access to large amounts of money.  For others, the extension might not be so obvious. 

Next is understanding the different between an Employment Credit Report and a Consumer Credit Report.  There are many differences that require far greater explanation, but the for the purposes of this discussion let's point out a couple of the highlights.  A Consumer Credit report contains a credit score (which cannot be used as part of the hiring decision) and account numbers (which an employer shouldn't need to make a hiring decision).  Running them also counts against the applicant's credit score, unlike the Employment Credit Report.  For simplification purposes, this makes the Employment Credit Report the preferable of the two. 

Lastly, there are three primary credit bureaus in the US.  They are Experian, Equifax and TransUnion.  Information can vary from bureau to bureau, but as far as determining the best, all three have their strengths and weaknesses.

Now comes the hard part.  Making employment decisions based on the results of a credit report.  And that my friends is something that can and should be dealt with on a unique employer by employer basis.