We reported earlier this week that the state of California had banned the use of E-Verify for the state’s employers.  It has since been pointed out and confirmed that state has not banned the use of E-Verify, but instead banned anyone in the state (i.e. state, county, local governments) from mandating its’ use.

We apologize for the oversight on our behalf.

Author’s Note as of 10/20/2011: There has since been an update on this story which can be found at http://www.employeescreen.com/iqblog/update-on-new-e-verify-law-in-california/

This comes from TLNT’s John Hollon.

For better or for worse, California always seems to want to go its own way.

So it is with the controversial federal E-Verify system that “provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.”

While states such as Arizona, Louisiana, and South Carolina are passing laws to mandate the use of E-Verify as a check against illegal immigration, California is going the other way.

According to the Los Angeles Times, ” (state) legislation signed into law … prohibits the state, cities and counties from mandating that private employers use E-Verify,” forcing cities and other local municipalities that have been working to comply with the E-Verify requirements to reverse course and undo what they have previously done in order to comply with state law.

Gripes about reliability of E-Verify system

And the reason for the E-Verify ban in California, at least publicly, is the gripe that many have had about it nationwide — the unreliability of the federal E-Vertify system. According to the newspaper:

The state ban (of E-Verify) received broad support, including the California Chamber of Commerce and the California Farm Bureau Federation, which questioned the accuracy of the databases used by the federal system.

Assemblyman Paul Fong (D-Sunnyvale), who introduced the bill, said he felt that mandatory E-Verify was an unnecessary burden on businesses.

“It was costly, time-consuming. It’s unfair for big businesses and definitely for small businesses,” he said. “Why make a flawed system mandatory?”

Fong said the system often misidentifies U.S. citizens and legal immigrants. One such worker is Jessica St. Pierre, 22, who said she was fired from her job at a telecommunications company because her name was not correctly entered into the E-Verify system. It took her four months to get another job.”

SHRM’s problems with E-Verify

The Society for Human Resource Management has lobbied for a national verification system, but has specifically criticized the reliability of E-Verify, outlining “problems with the system, including identity fraud — which poses substantial problems for employers who are held accountable for enforcing the law — mistakes in data accuracy and burdens on legal U.S. workers.”

In addition, “A SHRM survey showed that 92 percent of employers want to participate in an electronic verification program provided ‘the system is accurate, efficient and easy to use.’ ”

Despite the public pronouncements, California’s ban of E-Verify is less about the reliability of the federal system and more about a state (and a legislature) that is overwhelmingly dominated by Democrats making a political statement against imposing sanctions that might limit opportunities for illegal workers.

But no matter what the reason behind the E-Verify ban, California’s legislative actions will surely reignite the national debate about immigration, E-Verify, and the long-standing inability of the federal government to fairly and consistently enforce workplace immigration laws.

For more of the Los Angeles Times story, click here.

About the author: John Hollon is Vice President for Editorial of TLNT.com, and the former Editor of Workforce Management. He has written extensively about human resources and talent management, including here at TLNT. Contact him at john@tlnt.com, and follow him on Twitter at http://twitter.com/johnhollon

EmployeeScreenIQ will be exhibiting at the 70th Annual HR Southwest Conference and Exhibition at the Fort Worth Convention Center in Fort Worth, TX October 30th through November 2nd, 2011.

The HRSouthwest Conference is the largest regional human resources Conference in the United States. The Conference offers world-renowned keynote speakers, two and a half days of educational sessions networking opportunities and exposure to the latest HR products, techniques and services. The HRSouthwest Conference is THE Conference that meets and exceeds your HR education needs!

Please stop by to talk employment screening and background checks in the state of Texas.

It’s official. The state of California becomes the seventh state to prohibit employers from using credit reports to make employment decisions. California Governor Jerry Brown signed AB 22 which will take effect on January 1, 2012. Like it’s counterparts in the states of Maryland, Oregon, Hawaii, Illinois, Washington and Connecticut there are some exceptions. Employers may consider a credit report under the following circumstances only if the candidate is informed that a report will be sought and they have obtained written permission:

• A managerial position
• A position in the state Department of Justice
• A sworn peace officer or other law enforcement
• A position for which the information contained in the report is required by law to be disclosed or obtained
• A position that involves regular access to confidential information such as credit card account information, Social security number, or Date of birth
• A position which the person can enter into financial transactions on behalf of the company
• A position that involves access to confidential or proprietary information
• A position that involves regular access to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client, during the workday

On a personal level, everyone saw this coming. Former Governor Arnold Schwarzenegger vetoed similar measures during his tenure on two occasions. And the rising tide of similar legislation in other states only bolstered the state assembly’s efforts to make this happen.

While I was once opposed to this type of legislation, I have slowly warmed to the concept. The truth is that employers that do not use credit reports for the exempted purposes probably shouldn’t have been using them to make hiring decisions in the first place.

Any employer that operates in the state of California and utilizes credit reports or might do so in the future should consider evaluating their employment screening policies.

Everything is big in Texas . . . Including a gaping wide hole in the state’s Department of Public Safety Computerized Criminal History System (DPS).  A 2009 state audit revealed that state prosecutors and courts failed to report arrest records on 1 in 4 arrests.  That might be funny if prospective foster parents, teacher applicants, members of law enforcement, day-care employees, doctors, nurses and real estate agents weren’t mandated to use the system for background checks let alone a host of private sector employers who do so voluntarily.

And here’s where it gets really scary.  The audit also looked at 21,351 offenders in jail, in prison or on probation who were convicted of crimes and began serving sentences in November of 2009. There were court records in the system for 1,634 of those offenders.

We’ve often warned about the dangers of relying on state database systems to conduct criminal background checks and this gives you a snapshot as to why.  Is the state’s criminal database cheap?  It sure is, but now maybe you can see why you get what you pay for.

And while, the statewide search might be a good screening tool as a complement to a thorough criminal background check, the gold standard is still to conduct a county criminal record search in each county where an individual has resided.

The Fayetteville Observer is reporting that Cumberland county, North Carolina plans to “ban the box” on all government jobs.  For those not familiar with the term, “ban the box” refers to employers excluding the question on their job application which asks the applicant if they have been convicted of criminal activity.  While we’ve written extensively on this topic, I’ve never been a vocifierous supporter or detractor of this measure.

But given the EEOC’s recent hearing on the use of criminal background checks, I’m beginning to warm to the concept.  Banning the box will effectively give everyone a fair chance to be interviewed for a given position.  While not asking about an individual’s criminal history on the application will just delay this eventually coming out, it will give the applicant the opportunity to shine in the interview and even come clean about their past, offering an explanation about what happened and when.

Of course, the employer will still conduct a background check, but at least the candidate will have been allowed a fair chance to convince the employer that they are the right person for the job.  Perhaps measures such as these will make the EEOC moderate their position.

We just published The Verifier XXIII, Summer 2011 Edition, a publication intended as an educational tool and information resource for human resource professionals or anyone interested in keeping abreast of recent employment screening and background check industry developments.

Highlights of this issue include the following:

Articles:

• Trends in Employment Background Screening: 2011 Results
• Introducing iEmployeeScreen mobile: Background Screening News at Your Fingertips
• A Modest Proposal: Social Network Background Checks Still Concern Me
• Background Screening Under Fire by The EEOC and Others
• Background Screening and The Candidate Experience

Announcements and Legislative Updates

• EEOC Hearing Scheduled on Use of Criminal Background Checks
• Connecticut Passes Law to Curb Use of Credit Reports
• Maryland Gov. Enacts Law to Curb Use of Credit Reports
• EmployeeScreenIQ Gives Back to the Community

Check it out!

On July 13, 2011, Connecticut governor Daniel P. Malloy signed into law a bill which will prohibit most employers from evaluating a candidate’s credit report as part of the employment screening process.  The law is akin to a similarly a passed measure in the state of Maryland earlier this summer in that it carves out a number of exemptions and that it does not allow a private right of action.

According to labor and employment attorney Pam Devata of Seyfarth Shaw, “The Act also provides limited exceptions that allow employers to request or use credit information where a credit report is ‘substantially related to the employee’s current or potential job.’  This exception generally applies to those positions involving money-handling and other confidential job duties. For instance, employers may request credit information for employees in managerial positions that involve the direction and control of the business; employees who have access to financial information; employees with fiduciary duties to the employer; employees who have an expense account or corporate debit or credit card; employees with access to an employer’s nonfinancial assets valued at $2,005 or more (i.e., museum and library collections, prescription drugs, and other pharmaceuticals); and employees with access to confidential or proprietary business information. Notably, where an employer chooses to request credit information pursuant to the substantial purpose exception, it must disclose its intent to do so in writing to the employee or applicant.”

Violators will be subject to $300 fine per incident but will not face a private action from offended parties.

Connecticut now joins a growing list of states that have adopted similar measures including Oregon, Washington, Hawaii, Illinois, Maryland.

Employers note that this law will go into effect on October 1, 2011.

I know that mine might be an unpopular point of view in our industry, but I actually think that recently bills passed in Illinois, Maryland and Connecticut are effective models to curb the misuse of this background screening instrument.  While I believe that credit reports are an integral part of the screening process for some, it should not be a requirement for all positions.  Quite honestly, it is those that have been misusing these reports for positions where credit really shouldn’t be required that has caused the states to take these actions.  I feel like the exemptions that are carved out effectively allow those that should be conducting credit reports do so.  I also think that disallowing private action is fair to employers.

There, I’ve been holding that in for about a year. I feel better already.  Feel free to rip me and my position now.

I can just see it now.  The investigative team at Boston’s Fox channel 25 is high fiving and sipping on their Appletinis while celebrating the huge story they broke about the loopholes in the state’s CORI background check system.   Ron Burgundy would be jealous.

It turns out that these intrepid reporters discovered that the CORI system only provides information on criminal records from the state of Massachusetts.  Cue the sinister music.

One question.  How hard did these reporters have to work to identify this loophole?  How many hours did they spend toiling away.  Perhaps they did a little undercover work, Fletch-style.

Well, we could have saved them the trouble.  We’ve been breaking this “hard-hitting news” for at least 3, maybe 5 years.  And we probably weren’t the first ones to say it either.

Okay.  I’ll be serious now.  The station found a woman that was employed by a state contractor was a wanted fugitive in the state of Florida.  They also found that the state court reporter accused of rape that we told you about a couple months ago had convictions for other sexually deviant crimes in South Carolina.

The state really needs to rethink their screening program.  See the full story below.

Background check loophole exposed: MyFoxBOSTON.com