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When denying employment based on the results of a background check conducted by a Consumer Reporting Agency (CRA), the Fair Credit Reporting Act stipulates that the employer follow very specific adverse action procedures set forth in sections 604(b) and 615(a).  Two companies were apparently not well versed in these rules and ended up with a combined fine of $77,000.  That’s a big chunk of change – struggling economy or not. 

Our recommendation:  Employers should brush up on their obligations as users of consumer reports and speak with their legal department to ensure compliance. 

For release: 08/11/2009

Two Companies Pay Civil Penalties to Settle FTC Charges; Failed to Give Required Notices to Fired Workers and Rejected Job Applicants

Two companies that fired workers and rejected job applicants based on background checks without informing them of their rights under the Fair Credit Reporting Act (FCRA) have agreed to settle Federal Trade Commission charges that they violated federal law. The settlements require the defendants to pay $77,000 in civil penalties and bar future FCRA violations.

Employers often conduct background checks and seek employees’ and job applicants’ credit records, criminal histories, and other background information from a consumer reporting agency (CRA) such as a credit bureau or background screening company. The FCRA requires that before taking adverse employment actions based on these consumer reports – for example, firing employees or denying job applications – employers must provide the employees or applicants with a copy of the report, identify the CRA that provided it, notify them that the CRA did not make the adverse action decision, and inform them that they have the right to obtain a free copy of the report from the CRA and dispute its accuracy.

According to the FTC’s two complaints, both defendants contracted with a CRA to conduct background checks including criminal record reviews for employees and job applicants, and made hiring and firing decisions based on those background checks. The companies allegedly failed to provide the employees and applicants with pre-adverse action notices and adverse action notices as required by the FCRA.

The settlements require Quality Terminal Services, LLC and Rail Terminal Services, LLC to pay $53,000 and $24,000 in civil penalties, respectively, and to provide the FCRA-required notices in the future. The settlements also contain record-keeping and reporting provisions to allow the FTC to monitor compliance.

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Deciding whether to hire someone who has a past criminal record is not an easy process.  Federal law prohibits employers from discriminating against those with criminal records.  Conversely, one has to weigh the potential liability of having someone with a criminal conviction working at their company.  For many HR professionals, it’s a “damned if I do and damned if I don’t” scenario.

The following article provides a nice description of how HR professionals can take the overall question of “Should I hire someone with a criminal record?”, break it down and come to a decision they are comfortable with.  But, as with any question regarding the type of information that can or should be used to deny employment, employers should consult with their legal department to ensure compliance with both state and federal law.

If job candidate has a criminal record, ask questions

By Victoria Stagg-Elliott, AMNews Staff – August 10, 2009

If you run a background check on a potential receptionist, and you learn he was convicted of marijuana possession many years ago, can you still hire him?

Or what about offering a job to an otherwise strong candidate who, in answer to the application question, “Have you ever been convicted of a crime?” writes, “Yes, drunken driving, six years ago.”

Can you employ them? Should you? What are the risks if you do? What are the risks if you don’t?

Considering hiring someone with a criminal background, no matter how minor, is tricky. On the one hand, anti-discrimination laws prevent you from instituting a ban on hiring anyone with a criminal record. On the other, you could open yourself up to a negligent hiring lawsuit if it is determined that you should have known someone was at increased risk of causing harm to patients or staff.

This question is becoming more important, because background checks are easier than ever, meaning that job applicants are more likely to have this type of information disclosed during the hiring process even if the conviction is far in the past.

Also, the percentage of people of the labor pool who answer “yes” to an application question about past convictions is growing. According to the U.S. Dept. of Justice’s Bureau of Justice Statistics, in 2007 more than 7.3 million people, or 3.2% of adults, were on probation, in jail or in prison. The agency estimates that if trends continue, approximately one in every 15 people will serve time at some point in their lives.

“A physician has to be so careful,” said Linda Stimmel, a founding partner in the Dallas-based law firm Stewart Stimmel. “But I would not have any kind of policy on the subject. I would handle every hire on a case-by-case basis.”

So what should you do? Experts recommend asking these questions:

What was the offense? This is key, because a direct link between the crime and the work environment are strong grounds for not hiring someone. That’s because an employer could be held liable for negligent hiring. Employing someone with a child molestation conviction in a pediatrician’s office would be a clear example.

Most situations are not quite so clear-cut, but other questions may clarify the decision.

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If your company is looking to hire someone from the United Kingdom between roughly 117 and 218 years of age, have no fear – there is a criminal records check available for you.  The trial records of 18th and 19th century U.K. citizens convicted of poaching from a rabbit warren, bad language, scrumping for apples and other crimes are now available online courtesy of Ancestry.co.uk.  Due to the age of the records, it is highly recommended that any employer looking to take advantage of this new service contact their legal department regarding the use of these records in denial of employment.

Ancestry puts criminal records online

Genealogy site provides snapshot of criminal trials in 18th and 19th centuries

Written by Dinah Greek, Computeractive – August 7, 2009

All criminal trials reported to the Home Office from 1791 to 1892 have been put online by Ancestry.co.uk.

The list of names includes Jack the Ripper suspect Dr Neill Cream. At a time when 222 crimes were punishable by death, these records, available through the genealogical website, provide a brutal account of the ‘Bloody Code’ period in England and Wales.

Ancestry.co.uk managing director Olivier Van Calster said: “These registers testify to the fact that crime and punishment was and always will be a controversial subject; they also highlight the often colourful nature of crime, and in particular how creative criminals could be, even in less sophisticated times.

“This collection will be of great use to social historians as they contain a variety of in-depth information about crime and criminals in England and Wales during a period of great poverty, change and, ultimately, reform.”

The England & Wales Criminal Registers, 1791-1892, detail over 1.4 million criminal trials that took place during this period, with the records painting a detailed picture of Britain’s early legal system.

Each register gives information on the crime, the full name and date of birth of the accused, the location of the trial and the judgment passed. During this period, almost two in three tried for their crimes received sentences of imprisonment and offences could be as minor as bad language or scrumping for apples.

Almost one in 10 people were either transported overseas or sentenced to death. Crimes carrying the death penalty included stealing anything worth more than five shillings (equivalent of £30 today), theft of livestock, poaching from a rabbit warren, or cutting down trees. Among the 10,300 executions during this period was that of a boy aged just 14; hanged for murder.

The records have been taken from 279 original paper volumes held at the National Archives in Kew. The Registers are the first collection to be transcribed as part of the Ancestry World Archives Project.

This provides the public with indexing software and training support to enable them to contribute in making even more historical records available and searchable online. To date, thousands of Britons have contributed their time to this project.

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A new study conducted by the Institute for Corporate Productivity (i4cp) shows that roughly 75% of the companies polled conduct pre-employment drug tests, urine testing being the most common type of screen performed.  And it’s not just those workers in safety sensitive positions being screened.  The study indicates that 84% of the respondents stated that workers, no matter what the position or job responsibility, are fair game to be tested for drugs and/or alcohol.

With many employers having their pick of the employee litter, we will be seeing background screening and drug testing policies and procedures become much more stringent. 

Looking for a Job? Prepare to be Drug Tested

i4cp Study: Most Companies Drug Test, Especially During Pre-Employment

Seattle, WA, July 28, 2009 –(PR.com)– If you’re looking to land a job in today’s economy, you’ve got a much better chance if you’re drug free, suggests a new study by the Institute for Corporate Productivity (i4cp). The study found that three-quarters of companies polled have a drug screening policy, and almost all of those with a program say that pre-employment screening is the most common type.

A full 95% of companies that screen employees for drugs do so prior to hire; increasing to 100% in organizations with 10,000 or more workers. Seventy percent test when there is “reasonable suspicion” of drug use, 62% test following an employee accident, and 41% say they do random testing.

Among companies that do pre-employment drug screening, the largest share (47%) require that the test be conducted within four days of the applicant’s acceptance of a position, while 30% say it can be done at any time before the new employee’s start date.

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Truth in Advertising

Published on 22 July 2009 by in Resume Verifications

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If you’re anything like me, you typically mass delete the dozen or so spam emails in your inbox every morning without looking too closely at them.  I do, however, briefly calculate how many of those emails are from diploma mills as that is a topic we frequently write about.  I would say I receive no less than five “buy your degree” emails per day.  One in particular caught my eye this morning which caused that old Sesame Street song to get stuck in my head:

One of these things is not like the others,
One of these things just doesn’t belong,
Can you tell which thing is not like the others
By the time I finish my song?

Let’s see if you can pinpoint what seems out of place in this email:

Subject:  Diplomas for everybody.

GET YOUR DIPLOMA TODAY!If you are looking for a fast and effective way to get a diploma,(non accredited) this is the best way out for you. Provide us with degree you are interested in. Call us right now on: For US: XXX.XXX.XXXX Outside US: +1.XXX.XXX.XXXX”Just leave your NAME & PHONE NO. (with Country Code)” in the voicemail. Our staff will get back to you in next few days!

If you guessed the term “non-accredited”, then you are spot on!

The fact that the company offering me the opportunity to “earn” this diploma is blatantly stating their organization is non-accredited is surprising to me.  Some diploma mills have gone as far as creating fake accrediting agencies to make their product look legitimate to their buyer as well as anyone looking to verify it.  Maybe this company thought it wasn’t worth the trouble…

For those positions that require a certain level of education, it is important for employers to distinguish whether the person they are looking to hire has a degree from an accredited school or evaluate if the non-accredited institution taught the skills needed for the job.  It is important to point out that the terms “non-accredited” and “diploma mill” may not be synonymous 100% of the time as there may be schools that lack accreditation but still provide a sufficient standard of quality education.  But certainly more often than not, when you see the term “non-accredited”, it will mean diploma mill (as is the case here).

For more information and coverage regarding diploma mills, click here.

And because I can’t resist…

Sesame Street: Cookie Monster\’s Sorting Song

 

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Six Pittsburgh city workers may be out of the job after city officials discovered they did not reveal previous criminal convictions on their applications for employment.  Some of the omitted cases include felony convictions for  drug possession, aggravated assault and terroristic threats.  One worker has a criminal conviction for acquiring or obtaining possession of a controlled substance – 110 counts to be exact.

These are pretty serious cases – I can understand why an applicant would want to keep this information under wraps.  But doing so is not recommended for the obvious reason that you run the risk of losing your job if your deception is uncovered.  And the only thing worse than being terminated for lying about a criminal conviction on your application for employment is discovering that if you had been truthful, the employer would still have been willing to give you a chance…

Pittsburgh prepares to fire 6 workers for unreported convictions

By Adam Brandolph, Pittsburgh Tribune-Review – July 14, 2009

City officials Monday suspended and prepared to terminate six Pittsburgh Public Works employees in the wake of controversy over unreported criminal convictions.

City Operations Director Art Victor said the employees were suspended because they didn’t report their convictions on job applications, not due to the charges themselves.

“It’s clearly stated that any falsification could result in termination,” he said.

The city does not have a blanket policy on hiring employees with criminal records. A pending lawsuit against the city, filed by former Public Works employee Paul Grguras, alleges the city unfairly targeted him when he was fired for not revealing a felony conviction.

The six employees suspended yesterday were:

• Mallory A. Craig, 39, who was hired in July 2006, pleaded guilty in November 1991 to terroristic threats. Craig’s salary is $38,865.

• Mario J. Cutruzzula, 48, hired in February 2007, pleaded guilty to fraudulently obtaining food stamps or other assistance. Cutruzzula’s salary is $38,495.

• Carl A. Huntley, 48, a laborer hired in August 2004, pleaded guilty in January 2003 to retail theft. In August of the same year, Huntley pleaded guilty to drug possession with intent to manufacture or deliver. His salary is $38,495.

• Joseph A. McCoullum, 26, hired in 2005, pleaded guilty in June 2003 to possession of a controlled substance with intent to deliver, according to court records. His salary is $38,037.

• Richard M. Shiloh, 52, hired in March 2007, pleaded guilty in January 1996 to 110 counts of acquiring or obtaining possession of a controlled substance. Shiloh’s salary is $40,285.

• Quint R. Weaver, 41, a tree pruner hired in September 2001, pleaded guilty to aggravated assault in June 2000. His salary is $39,374.

“There is a mistake,” Shiloh said last night. “I know there is. I plan on fighting it.”

Weaver refused to comment and the other workers couldn’t be reached for comment.

“At the time these guys were hired, the city didn’t have any policy on doing background checks on anyone,” Victor said. “It was only since 2008 that every perspective new hire has had a background check done.”

The suspended employees have until the end of the day Friday to explain, in writing, why they should not be suspended. The city will look at their letters before making a final decision, Victor said.

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What a genius idea!

Wanted: Fake Employees

By Cindy Perman, CNBC – July 2, 2009

For many professionals, there’s a stigma around doing odd jobs like mowing the lawn or cleaning houses: What if someone saw me? I would be mortified!

As the layoffs keep piling up — another 467,000 jobs were lost in June — it may be a while before a lot of people get back to full-time work.

 Enter filmmaker Jeremy Redleaf, who has done the impossible of making odd jobs seem cool with job-listing site Odd JobNation.com, which launched in February. Their motto is: “Turn that Pink Slip Into a Golden Ticket.”

“We’re sort of celebrating this moment in time for anyone who’s been laid off or looking for extra money,” Redleaf says. “But we’re making it cooler — we’re getting rid of the stigma.”

The site collects its own listings from word-of-mouth but it also mines Craig’s List in various cities for listings.

The site has opportunities for everyone, from actors to investment bankers. In fact, Redleaf started the site after helping five i-banker friends get jobs after they were laid off.

Sure, it has your typical odd jobs, but also some listings you might not expect:

Arm Candy for a Celebrity. A celebrity once posted a listing looking for an attractive young lady to be his arm candy for Fashion Week. Pay: $50 for the afternoon.

Fake Employee. An ad agency laid off a bunch of its employees, but wanted to keep up appearances when a big client came to the office. So, they posted a listing for “fake employees” to just sit at the desks and look busy. Pay: $15 an hour.

All-Star Foosball Player. Have a Migayi-like command of the Foosball table? Well today’s your lucky day because one Chelsea office is sick of their cocky foosball champion and is looking for someone to take him down. Pay: $40 and beer.

Michael Jackson Impersonator. If you recently lost your job, you’re bad and you know it, this job is for you. A woman in California is looking for a Michael Jackson impersonator for her wedding in Lake Tahoe on August 1. If you’re not free that day, don’t worry: I’m sure there will be more moonwalking opps to come!

Mermaid for a Birthday Party. Perhaps fulfilling a long-harbored “Splash!” fantasy, one poster is looking for a couple of women to pose as mermaids and swim around the pool at a birthday party in July. The pay is $150 for three hours, and they will provide the costume if necessary, but there is one teensy caveat: You have to do it topless.

Actor in a Zombie Movie. A zombie movie starts filming in a couple months in South Florida and they’re looking for everything from actors to special-effects make-up artists and set designers. You won’t get paid — except for getting a copy of the movie — but how cool would it be if, at your next interview, when they asked you about that gap in your resume, you said nonchalantly, “Oh, I was acting in a zombie movie.”

The site isn’t just about job listings, though. It also has the pilot of a show RedLeaf is developing, called “Odd Jobs,” with two more episodes coming next week, as well as a “Recession Channel,” where you can submit your own recession-inspired videos or watch other people’s videos like the R&B rap “Laid Off” by C.H.A.Z.Z.

Redleaf says they’re going add features on unemployed people who are inspiring and add message boards to allow people to vent, network — whatever they need.

“We’re sort of a one-stop-shop for all things unemployment,” Redleaf says.

At the moment, the site only has one sponsor, ResumeDeli.com, but he’s currently in talks with other sponsors.

How he pays for it all is through a sister site called, ResumeShirts.com, where, for $19.99, they’ll print your resume on your T-shirt! The front says, “Resume Attached,” and the resume is on the back. Or, they’ll do your cover letter, with “Dear Sir or Madam” on the front and your cover letter on the back.

Those shirts have been so successful, Redleaf says they’re going to expand the online store to include other sites that sell T-shirts, bags, mugs, etc.

He’s also got plans for a “Worst Resume Contest” in the works, where the winner wins a full resume makeover. Kind of like “What Not to Wear” for your resume. Like a “What Not to Write.”

This is all great but what happens if the recession ends?

“If my business starts to go down — that’s actually a good sign!” Redleaf quips. “But there are always going to be people who need jobs, who want odd jobs,” he says. “For those people, we’ll always be there.”

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The Bozeman City Commission called a special meeting last night to decide whether the city should hire a third party investigator to look into the hiring practices of the city’s human resources, police and fire departments after the city drew worldwide criticism for requiring job applicants to provide passwords to social networking sites like MySpace and Facebook on their job applications.  Needless to say, the vote culminated in a unanimous yes.  Personally, I think a negative vote on this move would have resulted in more criticism for the city.

Since this story broke, we have been all over it like bees to honey.  And we will continue to follow it in anticipation of the outcome.  The use of social networking sites as a background screening tool is a very hot topic for hiring professionals and the result of this inquiry could ascertain its level of appropriateness, if any, in the decision making process.

Stay tuned…

Investigator to look into Bozeman “social media” policy

Montana’s News Station – June 30, 2009

UPDATE, Monday evening: An in depth audit will begin into Bozeman’s former background check policy that called for job applicants to disclose their social networking sites’ usernames and passwords.

Bozeman’s City Commission voted unanimously during a special meeting Monday night to hire a third party investigator to conduct a thorough investigation into the controversial policy, which drew criticism from around the world when news of it broke earlier this month. The investigation will look into everything from how the practice was started to how voluntary the request was.         

The vote was prompted by an employee email that accused city staff of providing inaccurate information on the policy.

“I want to know if there were distinctions between the departments. Were there standards developed for what was considered appropriate content on someone’s personal page, how the applicants were told when the review of their sites would occur and for how long they could expect the city to access those sites,” Commissioner Eric Bryson said.

Commissioners say they were unaware the city was asking for the login information from job applicants.

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The North Carolina Court of Appeals has ruled that a school board who required its districts’ drivers and teachers to submit to random drug and alcohol screening violated its employees privacy.  I couldn’t disagree more with this judgement.  I believe the safety of the students attending school in that district should be of the utmost priority and the school board should have the ability to determine how to best handle that responsibility.  Additionally, I think this ruling sets a very bad precedent that can be used against  any employer who requires drug and alcohol testing as a condition of employment.

One reason given for the judge’s decision:  “There is also a complete want of evidence that any student or employee has ever been harmed because of the presence of ‘a detectable amount of illegal drug or alcohol’ in an employee’s body.”

Just because it hasn’t happened yet doesn’t mean it won’t.  And with this court’s ruling, it now has an even better chance.  A very poor decision.

Court Rejects Random Employee Drug Testing

By Jeff Gorman, Courthouse News Service – June 17, 2009

(CN) – A North Carolina school system violated its employees’ rights by forcing them to submit to random drug and alcohol testing, the North Carolina Court of Appeals ruled. The court cited privacy concerns and the lack of evidence that anyone has been harmed by a “detectable amount” of drugs or alcohol in an employee’s system.

Susan Jones and the North Carolina Association of Educators sued the Graham County Board of Education to challenge the policy, which required drivers to submit to random testing and required all employees to pass “an alcohol or drug test” as a condition of employment.

The testing policy became even stricter in December 2006, when all employees became subject to random testing. The employees sued five months later.     

The trial court ruled for the school board, but Judge Stephens reversed the decision on the grounds that it violated the state Constitution’s ban on unreasonable searches.

“We are unable to conclude from this record,” Stephens wrote, “that any of the board’s employees have a reduced expectation of privacy by virtue of their employment in a public school system.     

“There is also a complete want of evidence that any student or employee has ever been harmed because of the presence of ‘a detectable amount of illegal drug or alcohol’ in an employee’s body.” 

Read the case summary here.

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A local newspaper in Austin, Texas recently issued a follow-up piece to a feature story they published about an 81-year-old female pilot who has logged nearly 29,000 flight hours during her lifetime.  The intention of the story was to make its readers feel good and highlight the incredible achievement of this woman who is still going strong despite her age.  Shortly after the story was published, the newspaper got wind of an incident that occurred nearly 40 years ago that they felt was important to inform their readers about – namely, a murder conviction for the death of her 6-year-old stepson.

The story describes what happened and why they have chosen to inform their readers about the woman’s past.  While this isn’t a case of conducting a background check for employment purposes, one can clearly see the similarities. 

81-year-old pilot still flying high - June 10, 2009

Pilot says she has skeletons in past - June 13, 2009

Why we do background checks

By Debbie Hiott, Austin-American Statesman – June 15, 2009

Last week we ran a front page feature about Smithville pilot Lori Adams, who continues a lifetime of flying at 81. Saturday, we ran another story about Adams, this time pointing out a bit of her history that wasn’t in the original story, that Adams had been convicted in 1973 for the murder of her 6-year-old stepson. Her conviction did not show up in the background check we routinely do on profile subjects before we put them in the paper.

Some of our readers thanked us for the additional information about Adams. Others complained that the murder wasn’t relevant to Adams’ life as a pilot. They wondered why we felt compelled to come back and do the second story. Still others were bothered that we do background checks at all.

The original profile, a nicely-written account by Andrea Lorenz, could easily be seen as a celebration of the pilot’s life and spirit. It was a feel-good piece about how one local woman persists in following her passion.

When we discovered after the article ran that our routine background check had failed to reveal a murder conviction, that information seemed significant enough to Adams’ life story to warrant a follow-up article. We didn’t do it out of any desire to embarrass Adams or to pass any sort of judgment on her. Our sole motivation was that we felt readers deserved a more full picture of Adams’ life in light of the previous profile we had run.

As for those background checks we do, they are checks of public records — the sort of information available to anyone about anyone else. A person can use a service or dig through individual courthouse records. We generally check through a service for criminal background, lawsuits, liens and bankruptcies. We do the checks to make sure we aren’t surprised about someone’s background after a story comes out, as we were in this case. Had we known about the murder conviction in this case, we might have included it in the original profile or we might have decided not to do a story about the pilot at all.

In some cases we decide the information we have found isn’t relevant to the story because it’s old, it’s minor or it has no relation to the current situation. In this case, the nature of the crime for which Adams was convicted was such that we felt we should present the information to readers and let them decide whether it changed their perceptions of the original story.

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