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Many employers struggle with the question of whether they should perform a criminal background check under the candidate’s current name or if it should be expanded to include alias names or AKA’s (i.e. maiden name, nick names, etc.).

Of course, it’s important to bear in mind that nearly every U.S. court files records by the name the person was using at the time of the conviction.  However, in some very rare instances you could pick up convictions that were filed under an alias name.

For instance, famous pop music star Prince has also gone by the following names: Prince Rogers Nelson, Jamie Starr, Christopher, Alexander Nevermind, Joey Coco, Prince logo.svg (not a typo, he actually referred to himself as this symbol), The Artist Formerly Known As Prince and The Artist.  So if your conducted a background check on “Prince”, you wouldn’t find a record that was filed under the name Joey Coco.  Just to clarify, I am not aware of any crimes committed by Prince.  By all accounts, he a normal (maybe not), law-abiding citizen.  Now, this is a fairly ridiculous example because who has this many names and in fairness, only a couple of these would have been legal names.

That said, we wholeheartedly tell our clients that if you want to conduct a comprehensive search, it is always best to include additional names.  These names can be identified using a combination of that which is provided to you by the candidate and that which is found on an address history or social security number trace.

Based on our exhaustive research, here are the numbers that should guide your decision.

Records Found Under Alias Names Only (for any type of criminal record search: county, state, national, etc.)

  • If a record is filed under an alias name and that name is not searched, you will miss the record 89% of the time.
  • Conversely, only 11% of the time will a record be found under an alias name if that specific name is not searched.
  • On average, 12% of all the records we find at EmployeeScreenIQ are felonies.  However, 25% of the records we find under alias names are felonies.

National Criminal Database and Alias Name Hits

  • 79% of applicants with hits were based on the current name only.
  • 21% of applicants had alias names listed as well as the current name. Zero records were returned with an alias name only.
  • The national database will not find records under alias names, if the alias name was not originally part of the search.
  • The national database will not find records missed at the county level because clients declined to run alias names.

So when it comes down to it, the numbers don’t lie.  Any time you conduct an employment background check, you should definitely consider all of the names identified by the candidate and on the address history search.  Do this and you will dramatically increase your ability to thoroughly vet the candidate and hire with confidence.








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Raise your hand if you think business executives should be “spared the embarrassment” of an employment background check.  Earlier this summer we held a panel discussion on the things job applicants will do to cheat a background check.  One of our panelists, Lisa Kaye from greenlightjobs.com, shared a story about her time as a chief human resources officer at a major entertainment company in which she was told not to conduct a background check on a potential C-level candidate.  She fought them tooth and nail, and ultimately did a little digging by connecting with some of her colleagues from the company the candidate worked for.  Long story short, the feedback she got from more than one person was that she was totally unqualified the role.  Imagine how grateful Lisa’s colleagues were when she reported what she found and they decided not to move forward with an offer.

Okay, now raise your hand if you still think employee background checks shouldn’t be conducted on business executives.

Still not convinced?  Check out HR Executive’s article, “Vetting at the Top”.  It’s a brilliant piece on why screening should be more meticulous on business executives compared to the rank and file.  See excerpt below. We’ve all seen the results when high profile execs are not thoroughly vetted; Yahoo’s Scott Thompson, Radio Shack’s David Edmundson, Notre Dame’s George O’ Leary, etc.  And if candidates for these positions are offended by this process and don’t understand why this needs to be done, perhaps they aren’t the right man or woman for the job.  I know we recently performed a search on a potential CFO candidate for a major Fortune500 organization.  The background check actually took a while to complete because the person had lived outside of the U.S. for a period of time.  Both our client and their candidate stuck with the process and only when the check came back without any blemishes did both parties proceed.

Vetting at the Top by Will Bunch

Tracy McCarthy, currently the senior vice president for human resources at Chicago-based SilkRoad technology inc. — with a 20-year background in the HR field (including as a CHRO at a mail-order retailer and in HR leadership posts at other retailers) — says one of the worst pieces of advice she’s ever received came during an earlier job when her 200-employee company was searching for a new CEO.

A leading and well-known candidate had emerged for the post and a board member told McCarthy there was no need to run a very extensive background check. “They said that we shouldn’t do that, that a background check would be insulting, that this is a known person,” says McCarthy, whose current employer, SilkRoad, offers HR services to high-tech firms.

McCarthy says she went ballistic at the suggestion. “I said I think we owe it to ourselves, and our investors, to do an extra, extra deep background search — to look at everything that might be out there,” she says.

McCarthy — and other human resource executives and experts — say double- and even triple-checking a C-suite job candidate’s resume, references and educational background isn’t just a way to spare the company from future embarrassment; it also offers career protection to the candidate who might be able to correct a resume error before it becomes an indelible stain on his record. And some experts argue that problems with the hiring of the very top executives run deeper than the resume, that candidates should be psychologically assessed and past co-workers should be mined better for information.

Earlier this year, the business world learned, yet again, just what can go terribly wrong when candidates for the highest-level jobs are not properly vetted. In May, Scott Thompson had been CEO of the large but troubled Internet-content giant Yahoo! for just four months when an activist investor challenged his educational background as listed in one of the firm’s filings with the U.S. Securities and Exchange Commission.

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FTC Flexes its Muscles with Criminal Backgrounds: Employers Take Note

Earlier this week,  the Federal Trade Commission (FTC) announced a settlement with background screening giant, HireRight. The scenario is pretty much every compliance officer or in-house counsel’s worst nightmare. The company has signed a consent decree that requires it to pay $2.6 million in penalties. Along with the payment, HireRight has to submit to monitoring by the FTC, is enjoined from some allegedly bad practices, and agrees to regular reporting and ongoing investigation by the agency for at least five years.

The FTC charges that the company violated the Fair Credit Reporting Act by failing to use reasonable procedures to assure the maximum possible accuracy of criminal background check information it provided, failing to give consumers copies of their reports, failing to re-investigate consumer disputes, and failing to sufficiently notify consumers when public record information is used in a background check.  In plain English, the FTC is saying that consumers were denied protections that are required under the law.

While the consent judgment does not admit any wrongdoing, the company has agreed to cease certain practices, and they are paying a hefty fine, to boot. For more of the legal nitty gritty, our friends in the privacy practice group at Arnall Golden Gregory LLP have done a great job of laying out the statutory violations here.

Up until now, the FTC’s investigation and enforcement of the FCRA, specifically the accuracy of consumer reports, has not shown much muscle. It’s been focused more on credit reports than criminal backgrounds.  The recent scrutiny by the FTC is, in my opinion, due to a convergence of a few things. First, with the ongoing job crisis, there is increasing attention on potential barriers to employment, including a criminal past or a bad credit report.  When background companies get it wrong and someone is unjustly denied a job, those applicants are crying foul.  As well they should.

In addition, watchdog organizations are sounding the alarm. Groups like the National Employment Law Project (NELP) are reaching out to regulators and providing a platform for ex-offenders and potential victims of discrimination to protest inaccuracies in reports and potential FCRA violations.  I can’t argue with that. And the CFPB is now in the mix, asking questions as well.

Finally, technology and price pressures have converged to make the quick and easy instant database search an attractive but dangerous product.  Don’t confuse a cheap and cheerful web search with a real background check. Databases and public records are invaluable tools if used properly. But they can be inaccurate and damaging if not vetted and verified.

Full disclosure—I am employed by a background screening company.  Moreover, I am on the board of directors for the National Association of Professional Background Screeners. With that said, I firmly believe that if you are running or managing a business, doing a criminal background check is a must. It’s a sound and best practice. In some instances, it might be negligent not to do so, and it may actually be required by law. But how do you know if your background company is following the law? I have a few recommendations, based on the FTC’s allegations and the resulting judgment and order.
1.    Look for NAPBS accreditation: This standard, established a couple of years ago by the National Association of Professional Background Screeners, identifies that a background screening firm is committed to best practices, subjects itself to on-site audits, and has submitted to ongoing monitoring and approval of policies and procedures by an accrediting board.
2.    Ask your provider about accuracy: The FCRA requires “reasonable procedures” to ensure “maximum possible accuracy.” Ask your background company about this requirement. They should know what you’re talking about. If they don’t, start looking for a replacement.
3.    Does your background firm use databases? Databases are great. They are highly effective when used properly.  So if they use them, how do they confirm that the information is up-to-date? A database is NEVER completely up-to-date. Even the FBI and state police databases are full of holes and gaps. By definition, a database is stored information that does not keep up with the real-time activity of a court. Unless a provider is confirming with an on-site or real-time court level check, the information may not be accurate.
4.    What about expungements? Again, if the information is not verified at the county court level, you run the risk of making a decision based on an expunged or sealed records.
5.    Does your provider publish duplicate offenses? If a case is reported in multiple places, the right thing to do is only report it once. Courts and regulators agree–reporting duplicates can make an applicant look worse that they really are.
6.    Does your provider send required notifications to consumers when public record information cannot be verified? This is one area where the FTC came down hard. In this case the FTC alleged that they had a “complex, multistep process for notifying consumers that public record information was being reported.” This process delayed notification, and could have been avoided altogether if the information had been verified at the source before being reported.
7.    How does your provider deal with consumer inquiries? Ask for a copy of their dispute resolution policy. Take it to your attorney to review. The law says disputes must be responded to within 5 days, resolved within 30 days, and the background screening company must provide a copy of the report upon request. If it seems like they are making your job applicants jump through hoops when they have a question about the report, be on notice. The law exists to help consumers and job seekers, and the background screening companies are a critical part of that process.

At the end of the day, employers can help themselves and their applicants by asking these questions. And if the answers don’t sound right, it might be time to make some changes.








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For those of you interested in keeping up with the latest in pre-employment background screening compliance and the laws that affect your use of  employee background checks, check out our latest publication, BTW: Your Guide to Staying Out of Hot Water.  This compliance resource has been crafted by our VP of Compliance and General Counsel, Angela Bosworth and is a must-read for human resources and security professionals.

Our June issue features a employment background check conundrum: Would your hire an applicant with a 37 year old murder conviction?  

Check it out.

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Federal contractors take note—yesterday Baldor Electric Co., which holds $18 million worth of government contracts, agreed to pay $2 million to settle allegations that its hiring process discriminated against female and minority job applicants.  Baldor is a subsidiary of Zurich, Switzerland-based ABB Ltd., and has received nearly $100 million in U.S. government contracts since 1997.

The US Department of Labor (DOL) alleged that the company’s background screening process prevented nearly 800 women and minorities from getting jobs.  Sound familiar? The DOL investigation mirrors the disparate impact cases filed by the Equal Employment Opportunity Commission (EEOC) that we have been tracking all year.  The DOL looks to be taking a chapter straight from the EEOC’s playbook, using its enforcement authority over federal contractors to allege discrimination by challenging the impact of background screening programs.

The agreement with the DOL says that Baldor will pay $2 million in back wages and interest to the affected individuals and will make at least 50 job offers to members of the original class of job applicants as positions become available.  If divided equally, the settlement comes to about $2,500 per person.

Arkansas-based Baldor had been fighting the claims since 2006, and finally grew tired of the fight and the expense.

“It was going to be a much lengthier process to fight it any longer. We don’t admit that we’ve done anything wrong. This was purely a statistical analysis on their (the Labor Department’s) part. But it would have been so long and so much more expensive to fight, it was just time to be done,” Baldor spokeswoman Tracy Long said.

“We’ve ensured that the screening process is in compliance with the Department of Labor’s expectations. We’ve had lot of time to work on it,” Long said.

Long’s comments defended the company decision to maintain a U.S. workforce , while taking a swipe at enforcement policies, claiming “It makes it hard to have this (U.S.) manufacturing strategy if you have policies like this, but we still feel it’s the right place to be.” Lesson for federal contractors—document your hiring policies and adopt best practices.  Even then, be prepared to defend your screening program, or shell out a multi-million dollar settlement.

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With the 95 degree heat we’ve been experiencing in Chicago lately, the summer is most definitely upon us.  It’s time to break out that new Speedo, throw some shrimp on the barbee and do to get your summer groove on.

For many employers, summer also means an explosion of hiring for seasonal staff.  Whether it’s interns, camp counselors, life guards, etc. the heat is on to get people hired and get them on the job as quickly as possible.  So, it’s up to you as the human resources professional to make sure things don’t fall through the cracks (here’s the part where we start talking about employee background checks).

The people you hire during the summer, even if they are only temporary, come with the same risks as any other employee and it is imperative that pre-employment background screening practices remain the same.

The best way to ensure this happens is to make sure you start the process early.  We have a number of clients whose employment rosters soar during the summer and many of them start making job offers as early as March.  In many cases, they have made a significant portion of their hires by the end of April.  This allows them all the time they need to make sure everything is in order.

One practice that we think is vital is to have all of the paper work in order, make the job contingent on the successful completion of an employment background check and then conduct that check as close to the person’s starting date as possible.  This way, you have the most current and up to date information before the person is on the job.

For those that don’t have a program, now is a great time to check out background screening companies.  I suggest looking companies that are NAPBS Accredited (by the National Association of Professional Background Screeners). (NAPBS).

Now go enjoy your summer!

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Just last week I posted about Spokeo’s woes, including a pending FTC investigation and a request by a consumer to re-open a lawsuit based on alleged Fair Credit Reporting Act (FCRA) violations.  Apparently I was prescient. Today the FTC announced a settlement with Spokeo to the tune of $800,000.

Referring to Pasadena-based Spokeo as a “data broker”, the FTC alleged that Spokeo operated as a consumer reporting agency (CRA) and violated the FCRA by targeting the sale of consumer reports to employers and recruiters without following the law.  The complaint alleges that Spokeo failed to vet its users to certify that the information it sold would be used only for legally permissible purposes; failed to ensure that the information was accurate; and failed to provide user notices, including telling users about their obligations under the FCRA.

According to the FTC’s web site, the investigation found that Spokeo “collects personal information about consumers from hundreds of online and offline data sources, including social networks” and “merges the data to create detailed personal profiles of consumers,” including name, address, age range, email address, hobbies, ethnicity, religion, participation on social networking sites, and photos.  Spokeo marketed the profiles to employers, human resources professionals, and job recruiters under the tag line “Explore Beyond the Resume.”

The settlement bars Spokeo from future violations of the FCRA, and also bars the company from making misrepresentations about its endorsements or failing to disclose a material connection with endorsers.

For it’s part, Spokeo is carrying on, business as usual, but vowing to stay out of the consumer reporting business.  “We have made changes to our site and our internal business practices in order to ensure we don’t infringe upon the FCRA’s important consumer protections,” Spokeo said.   A peek at their web site today revealed this disclaimer:

“What Spokeo Does Not Do:
Credit/Insurance Eligibility: Spokeo does not have access to secure or private financial information. As stated very clearly in our profiles, you may not use Spokeo for credit, tenant or insurance screening purposes.
Employee Screening: Utilizing Spokeo’s People Search technology for purposes of employee screening is strictly prohibited.

Any other purpose specified in the Fair Credit Reporting Act (FCRA): Spokeo is not a credit reporting agency and does not offer consumer reports. Spokeo works hard to ensure that all of our data is strictly within established guidelines.”

So while your privacy may still be compromised, at least Spokeo information may no longer be used against you by your boss or by prospective employers. Which is good news for Mr. Robins, whose case is up for review by the 9th Circuit. Meanwhile, legitimate employment screening companies that follow the FCRA and play by the rules have scored a small victory. While the playing field is still not completely level, the FTC has sent a clear message that they are very interested in social media sites that, up until now, were operating below the radar. Employers may be more likely to work with a credentialed background screening firm rather than hop onto Google or a social media site with little or no assurance of accuracy.

So what’s next? We already know, based on information released earlier this year, that the FTC is looking at mobile apps, and pushing for more Congressional controls of so-called “data brokers.” What that term actually means has yet to be defined, but there are probably a few more search engines wondering if they fit the bill today than there were yesterday.

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In March of this year, I had an opportunity to meet with representatives of the Federal Trade Commission (FTC) to get the pulse on their current enforcement focus, hear about their new privacy report , and to discuss trends in consumer background checks.  Social media sites and mobile applications were at the top of their agenda.

At the meeting we raised an interesting question—would the FTC consider social media “aggregator” sites and “metasearch’ engines, like Dogpile and Spokeo, consumer reporting agencies (CRAs) as defined by the Fair Credit Reporting Act (FCRA)? After all, when those sites are used by employers to look up potential applicants, the search engines are compiling reports for employment purposes, right? And they market their sites to businesses for this very purpose, right? On the other hand, you could look at the site as just a pass-through— software through which information passes. As we debated the issue, one of the FTC attorneys in our meeting commented that, taken to the extreme, one could argue that Google is a CRA. And we wouldn’t want that, would we?

The online search site Spokeo was faced with this very question in 2010, when it was hit with a double whammy–the Center for Democracy & Technology filed a complaint against the company with the FTC, and Virginia resident Thomas Robins filed suit against the company for allegedly violating the FCRA.  In the FTC complaint, the watchdog group claimed “Despite offering credit ratings and promoting the use of its services for employment decisions, Spokeo does not offer consumers any of the protections encoded in the Fair Credit Reporting Act as required by law.” Meanwhile, Robins alleged that Spokeo was acting as a CRA, reporting inaccurate information that was hindering his job search, and that he had no recourse or means to dispute the inaccurate information. CRAs are required to provide consumer protections like procedures to assure accuracy and dispute processes for consumers who find inaccuracies.

Spokeo countered that Robins had no proof of damages and that it is not a CRA, but merely a search engine. Last September, the judge dismissed the case, finding that “(t)he alleged harm to Plaintiff’s employment prospects is speculative, attenuated and implausible.”

Now Robins is back.  Earlier this week, Media Post reported that he has asked the 9th Circuit Court of Appeals to revive his case, arguing he does not need to prove damages under the FCRA since it provides for statutory damages, and that he can prove anxiety and stress.

And the FTC is still circling. The agency has not taken any public action against Spokeo, but they have asked Congress to consider new legislation to address so-called “data broker” web sites.  While sites like Spokeo typically say in their terms of service that users are not allowed to use the information for FCRA purposes like employment or credit, the FTC has repeatedly warned that attempts to avoid liability through the use of disclaimers won’t fly. In their Privacy Report issued earlier this year, the FTC calls for legislation that would give individuals more control over the information held by “brokers” making it easier to erase it or modify it.

As the FTC seems to be defining data brokers, the term applies to a very broad spectrum of businesses on the Internet.  Data brokers, the FTC report said, “Buy, compile and sell a wealth of highly personal information about consumers but never interact directly with them.”

Stu Ingis, a partner with Venable who represents the Digital Advertising Alliance recently had this to say:  “The FTC created a term that sounds nefarious. It’s fear-mongering. I’m not sure what they’re talking about. Data is the engine of the economy; it’s not a secret the online world is replicating [in] the offline data world.”

So what is a site like Spokeo? A CRA?  A data broker?  Neither? And what is a data broker anyway? Tell me what you think.

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We have received information through Jackson Lewis attorney, Garen Dodge that Elizabeth Grossman, the lead trial attorney in the New York office of the EEOC recently spoke about the agency’s new guidance on criminal background checks and said that the question on the application—”have you been convicted . . .”—even with all the non disqualifying language is going to be viewed by the agency as a red flag.

Garen mentioned that “the term “Banning the box” is the EEOC’s “best practice” buried in the guidance and not even called a best practice in the recommendations section of the guidance.  Here the NY EEOC has announced that “have you been convicted…” language on an application will be a “red flag” triggering further EEOC inquiry.  Not even state and local legislation on “banning the box” has gone this far.  Employers are asking if they have to delete this question from their applications”.

And unfortunately, we don’t have the answer.  We know that neither a mandate nor best practice recommendation were included in the guidance, so it looks as if  the New York EEO intends to enforce something that shouldn’t be enforced. This is very troubling for employers that are doing their best to comply with the guidance as written.

You would hope that would temper their plans and that employers could disregard, but as we all know, even if you win in court it can cost you a lot of time and money to defend yourself.

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A couple of weeks ago we posted about  California SB1384 –a fast moving bill that would expand the definition of a nationwide specialty consumer reporting agency and would require companies fitting that description to place a freeze on consumer files upon request by a consumer.

This bill is scheduled to be heard today, despite the many concerns and issues including those listed here:

•    Under California law, consumers already have a right to place a credit freeze with a consumer credit reporting agency.  Expanding that to include non-credit consumer information could have significant consequences to employers and consumers.
•    Consumers would be able to suspend access to non-credit consumer report information (i.e. his/her criminal history, evictions etc.) thereby denying business (end users of consumer reports) access to information critical in making risk and hiring decisions.
•    Freezing access to non-credit consumer reports may restrict or deny access to public information by businesses—even those that already have the consumer’s consent as mandated by the FCRA.
•    Before a freeze could be lifted, the business may have already moved on to an applicant whose history could be vetted more immediately.
•    11 states specifically prohibit freezing of non-credit consumer information; several other states specifically exempt non-credit consumer information from their credit freeze legislation.
•    Significant consumer protections already exist in California and under the Federal Fair Credit Reporting Act (FCRA) via oversight by the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB).

The bottom line is this– we foresee many unintended consequences that will negatively impact California business owners and consumers if this bill moves forward, unchecked.

If you agree, please contact the California Senators below by phone, email, fax or web form to urge them to oppose this bill.
Sen. Ron Calderon
Phone: (916) 651-4030
Fax: (916) 327-8755
Sen. Lou Correa
Phone(714) 558-4400
Fax: (714) 558-4111
Sen. Ed Hernandez
Phone: (916) 651-4024
Fax: (916) 445-0485
Sen. Ted Lieu
Phone: (916) 651-4028
Fax: (916) 323-6056
Sen. Gloria Negrete McLeod
Phone: (916) 651-4032
Fax: (916) 445-0128
Sen. Alex Padilla
Phone:  916-651-4020
Sen. Curren Price
Phone: (916) 651-4026
Fax: (916) 445-8899
Sen. Michael Rubio
Phone: (661) 395-2620
Fax: (661) 395-2622
Sen. Juan Vargas
Phone: (916) 651-4040
Fax: (916) 327-3522
Sen. Rod Wright
Phone: (916) 651-4025
Fax: (916) 445-3712
Sen. Leland Yee
Email: Senator.Yee@senate.ca.gov
Phone: (916) 651-4008

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