EmployeeScreenIQ Blog

What a difference a day makes.  As we posted yesterday, the U.S. Supreme Court heard arguments from both sides on the Ninth Circuit Court ruling that the background checks NASA subjected their contractors to was unconstitutional. Yesterday, I felt that both sides had valid arguments.  I said that NASA has every right to conduct an employee check, but felt that some of the employment screening criteria and information they asked for were out of bounds.

Today, I read the actual arguments made by both sides and not only have I changed my opinion on the case (I completely agree with NASA’s position), I am firmly convinced that NASA will prevail.  From a constitutional standpoint, it appears that there are no privacy protections that would stop NASA from performing the background checks that have come under fire.

Further, the characterization by the contractors that their work doesn’t affect national security or isn’t confidential in any way is immaterial when you consider their proximity to the Space Shuttle itself the people working at NASA whose work does involve national security.

The Wall Street Journal opined this morning that with the exception of Justice Sotomayor, the court seemed to accept NASA’s arguments.  See excerpt from their story below and expect a reversal of the lower court’s ruling soon upholding the right of employers to conduct background check.

According to this account by the LA Times’s David Savage, the justices gave a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks. Caltech runs the Jet Propulsion Laboratory under a contract with NASA. Click here for the transcript of the arguments.

The scientists won at the Ninth Circuit, which held that questions violated their constitutional right to privacy.

According to Savage’s story, the justices all (with the possible exception of Justice Sonia Sotomayor) sounded as if the were inclined to uphold the background checks.

That said, they explored the limits of what the government should be allowed to ask. Justice Antonin Scalia, staying true to his “textualist” method of constitutional interpretation, said there was no such privacy right. “I don’t see it anywhere in the Constitution,” he told Dan Stormer, a Pasadena lawyer who represented the Caltech employees.

Chief Justice John Roberts and Justice Samuel Alito said they would not close the door to all such claims. “Isn’t there some right to tell the government: ‘That’s none of your business’?” Roberts commented.

Alito said he questioned whether the government could ask people to fill out forms revealing what they ate, what they read or whether they smoked cigarettes and to describe their sex lives. “Is that OK?” he pressed Neal Katyal, the acting U.S. solicitor general.

Probably not, Katyal agreed, but he urged the justices to rule that the government can ask open-ended questions of its employees and contract workers.

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EmployeenScreenIQ recently published a white paper on the need for organizations to ensure employment background checks are being conducted on their contingent workforce.  “Screening Your Contingent Workforce: What HR Professionals Should Know” examines the dangers of hiring contract workers without performing the same background checks as on permanent employees.

I sat down with HRMarketer’s Elrond Lawrence earlier this week to talk about some of the key issues addressed in our study.  Topics include the following:

• Why screening the contingent workforce is so important
• How companies can work with contracted staffing agencies to ensure consistency and compliance
• How organizations can protect themselves from from claims of hiring discrimination

Check out our podcast.

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Check out our latest article which helps HR professionals learn the value of screening their contingent workforce.

“Screening Your Contingent Workforce: What HR Professionals Should Know” is an eye-opening white paper from EmployeeScreenIQ. It examines the dangers of hiring contract workers without performing the same background checks as on permanent employees. Once small in number, contract employees have gained a significant presence among companies nationwide; HR executives who take a hands-off managing approach are setting their company up for big risks.

The NEW paper also addresses the following topics:

• Proper background screening methods for contingent staff
• How to avoid staffing agency discrimination
• HR’s need to reclaim ownership from procurement
• A handy checklist of “do’s and don’ts” for screening contract workers

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The Supreme Court has decided to weigh in on an on-going fight between NASA’s Jet Propulsion Laboratories contractors (NASA vs. Nelson) that seems destined to set precedent.  At issue is whether NASA can subject their contractors to the same background screening standards reserved for their employees, including in this case inquiries into their medical records, sex lives and interviews with family and friends.

Originally, a federal judge rejected a motion to block NASA from carrying out these background checks.  However, an appellate court said that NASA should not be able to move forward because the checks violated the contractors constitutional rights.

In an article recently published by Human Resource Executive Online, Seyfarth Shaw attorney, Pam Devata sets the stage for what promises to be an important case for employers engaged in employment background screening.

What the high court ultimately decides could affect how the federal government investigates the backgrounds of all current and future employees. It could also easily serve as precedent for the private sector as well, says Pamela Devata, partner in the labor and employment practice group of Chicago-based Seyfarth Shaw and a former member of the National Association of Professional Background Screeners.

In addition to deciding whether the laboratory workers’ rights to privacy were violated by the checks, one of the issues the court may consider is whether the background questions asked of federal contractors must be specifically related to the job. Currently, there is no federal law saying information secured from a background screener must relate to the specific job a federal contractor is applying for or carrying out.

“If the Supreme Court justices come out and say, ‘When you’re doing a background check for a federal contractor, the check must relate to the job specifically,’ that could even go beyond the jurisdiction of federal contractors and have immediate bearing in private-sector cases,” Devata says. “It would be an easy step to take. It’s just a little ‘hop-over.’ “

In the case of the plaintiffs, nearly all have worked at the Caltech facility for many years and are considered low-risk, i.e., none of them work on top-secret projects. In their lawsuit, they claim the investigations go well beyond what is appropriate for the work they do — including probes into medical records and interviews with friends and family about their finances and even their sex lives.

NASA, in its petition to the Supreme Court, says the forms “are the same ones that have long been used to conduct background checks for applicants for federal employment.”

“The ramifications of the [appeals court] decision are potentially dramatic,” the government and NASA state in the petition. “The decision prevents the routine background checks of many government-contract employees and it casts a constitutional cloud over the background-check process the government has used for federal and civil-service employees for over 50 years.”

The San Francisco-based appeals court’s ruling, however, says the forms NASA — via Caltech — required the laboratory workers to fill out sought “highly personal information using an open-ended technique including asking for ‘any adverse information which … may have a bearing on this person’s suitability for government employment.’

“There is nothing ‘narrowly tailored’ about such a broad inquisition,” the ruling states.

The Caltech case, says Devata, also raises “sort of a joint-employer issue … a very, very hot topic right now for background screeners.” Conflicts arise regularly in public and private sectors, she says, over contracts that specify one agency’s or organization’s jurisdiction over someone, but aren’t clear about the roles of other agencies or companies involved in the work being done.

“Some might claim a contract is clear,” she says, “but that doesn’t prevent other parties from arguing that they have jurisdiction. It’s a really interesting dilemma. When this case first came out, it was huge, hot news because of this.”

Though Caltech was dismissed from the case by the 9th Circuit District Court, a statement released through its media relations and online communications office says the school will “continue to follow the case closely.”

“We have and will abide by the orders issued by the courts,” the statement reads. Calls and e-mails to NASA seeking comment were not returned.

The arguments that will be brought before the Supreme Court in its upcoming term, beginning in October, will be closely watched, says Devata, particularly anything that addresses job-relatedness.

“The Equal Employment Opportunity Commission is all over this,” she says. “This is a huge and very hot topic right now among background screeners. The EEOC has already said there needs to be job-relatedness in background checks. So it wouldn’t surprise me if the Supreme Court says, ‘What’s asked of an employee or potential employee must be related to the job, so then, the question becomes, ‘What is job-related? What does job-related mean?’

“Realistically,” she says, “I can see the Supreme Court saying these are things that must be looked at and addressed by the federal legislators who are allowing these people to be contractors,” which would return the case to the lower federal courts to decide.

“Frankly, this is just another weight on the scale in terms of when you are evaluating what background checks to run and what information to gather, and how you should gather and what you should be gathering,” Devata says.

What she and her firm tell clients — many of them HR executives — is to “absolutely do background checks,” she says. “People do lie on their applications. In this economy, people want jobs, so people are willing to fabricate or lie … .

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Two stories hit my in-box this morning and they could not be more frightening.  The first is pure negligence.  We have written about contractor background checks in the past, this is a great example of lax policy.

Sex Offender Found Working at School

Police caught on to Brown after arresting him on multiple felony counts of indecent exposure to at least five women and one child in the State Line Avenue/I-30 area of Texarkana, AR.  Brown also faces failure to register as a sex offender charges in both Arkansas and Texas.

Brown remains in the Miller County Jail awaiting his first court appearance.

The second story makes you wonder who is paying attention on the Texas State Medical Board????

Editorial: Sex offender should not hold medical license

Few yardsticks in life are better than the headline test. Try it on this one: “Sex offender keeps license to practice psychiatry.”

Sen. John Carona, R-Dallas, has vowed to look into the matter, and we’re encouraged that he will. Those who have a state license to treat people at their most vulnerable must be beyond reproach. Those listed on the state’s sex-offender registry could not fit into that category.

[...]

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A Philidelphia law firm is feeling the burn after discovering a former employee is responsible for forging checks totaling more than $100,000 from the estates of the firm’s deceased clients.  Assuming that the legal recruiter who recommended the employee for employment had conducted a criminal background check, the firm hired her.  Little did they know that she was awaiting sentencing in New York for stealing $285,000 from her previous employer – also a law firm.

A partner in the law firm states in this news story that the recruiter obviously didn’t do their job since a criminal background check was not conducted on the employee.  Well, unless the law firm made that a requirement in their contract with the recruiter, they never should have assumed the vetting process was taking place.  I believe it is unfair of the firm to throw the recruiter to the wolves over this one when they themselves didn’t conduct their due diligence and make sure the recruiter was conducting the background check. 

It is incredibly important that businesses work with their recruiters and staffing agencies to iron out an employment screening process and determine which types of background check results are acceptable and which are not .  Making assumptions about such an important process can be a costly mistake.

Parelegal charged in 100G theft

By Stephanie Farr, Philadelphia Daily News – May 19, 2009

Kathy Foer-Morse didn’t fit in at High Swartz law firm in Norristown.

She showed up late, left early and couldn’t be located during some workdays, according to her employer.

After her termination, partners at the firm said that they discovered $100,937 couldn’t be located, either.

During a subsequent investigation, detectives learned that the former estate paralegal was awaiting sentencing in New York for stealing $285,000 from the last law firm where she worked, and that she had used the money she allegedly stole from High Swartz to pay restitution in the New York case, said Kevin Steele, Montgomery County first assistant district attorney.

“She clearly didn’t learn her lesson,” he said.

Moreover, rather than take from High Swartz’s accounts, Foer-Morse wrote checks to herself from deceased people’s estates and forged the executor’s signature, said Paul Bartle, managing partner of High Swartz.

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A private ambulance firm in Alabama has had its contract suspended by a local hospital over allegations that they have not performed criminal checks on their ambulance drivers.  Losing one contract is unfortunate for this company, but how many more do you think they will lose now that this story has become public?  Shortcuts during the hiring process can definitely end up costing you later on.

Birmingham hospital suspends ambulance contract over staff checks

By Alison Dayani, Birmingham Post

A Birmingham hospital trust has said it is no longer using a private ambulance firm that has come under investigation for allegedly not carrying out criminal checks or proper training on its staff.

University Hospital Birmingham Trust, which runs Selly Oak and Queen Elizabeth hospitals, was using On Site Medical and Ambulance Service to transport patients from children to vulnerable pensioners from its premises.

The Oldbury-based ambulance firm, which has had its contract with West Midlands Ambulance Service suspended over the allegations last week, has sparked an inquiry over whether at least six of its ambulance technicians have had the necessary enhanced Criminal Records Bureau check and medical training to keep patients safe.

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If you ask 10 HR professionals what they consider to be a good background check, you’d probably get 10 different answers.  Why?  Because the term “background check” is a very loose term.  When it comes to contract employees, it is vital that companies work closely with their recruiters and temporary staffing agencies to define a screening process.  What they believe to be a thorough background check could significantly differ from what you consider to be a thorough background check.  Nick Fishman authored an article for employeescreenIQ‘s quarterly newsletter, The Verifier, which examines this very issue and offers great advice on how you can work with your recruiters and temporary staffing agencies to set up a screening program to meet your needs.

When companies don’t get involved with the process, they run the risk of employing an individual they otherwise wouldn’t had they known specifics about their past.  A Spokane, WA-based business knows this all too well.

Couple accused of embezzling $800,000

Bill Morlin
Staff writer – SpokesmanReview.com
November 20, 2008

A woman and her boyfriend are accused of embezzling $814,000 from two Spokane advertising agencies and using the money for down payments on houses, luxury vehicles and airline tickets for a youth football team’s trip to California.

Michelle A. Wing and Kenneth Marsh are each accused in a federal indictment of conspiracy and multiple counts of bank fraud in a white collar crime investigation handled by the FBI.

Wing also is charged with two additional counts of identity theft – opening credit card accounts, using her boss’ name, Social Security number and birth date without his knowledge.

The credit card fraud, which lasted several months, reportedly included the $30,000 purchase of a 2008 Super Bowl package for the couple.

Wing, who is 33, was arrested and taken into federal custody last month for violating terms of her supervised release from a similar federal bank fraud conviction in Montana, court documents show.

She currently is being held at a federal correctional facility at SeaTac, and is expected to be returned to Spokane soon to be arraigned on the new charges.

FBI agents arrested Marsh Wednesday at a Spokane concrete company where he works as a dispatcher.

A short time later during an initial appearance before U.S. Magistrate Judge Cynthia Imbrogno, the 39-year-old suspect was ordered held in jail without bail until a detention hearing on Friday.

The indictment alleges Wing was hired in December 2005 by Centaur Group, a Spokane business which provides “administrative services” for two separate advertising companies, E Media, owned by Eric Hixson, and Power Marketing Services, owned by Ryan Pirello.

The two businessmen, who jointly own Centaur Group, said Wednesday they hired Wing to do bookkeeping work through a temporary employment agency, based in Spokane, whose owner had assured them he had done a criminal background check.

They had no idea, Hixson and Pirello said, that the bookkeeper they hired was on federal supervised release for a 2001 bank fraud conviction in Missoula, Mont.

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Hurricane Ike

In early September 2008 Southeast Texas was hit with one of the worst hurricanes in its history.  Hurricane Ike, making landfall as a category two hurricane peaked at a 5.1 hurricane while still out in the Gulf of Mexico.   In total, Hurricane Ike was blamed for 153 deaths, 71 in the United States.  According to Wikipedia, Damages from Ike in US coastal areas are estimated at $27 billion.

At this point you are probably saying to yourself “What does this have to do with background checks?” Well, I’m glad you asked.  Marketwatch.com had an article yesterday titled; “Hurricane Ike Victims Should be Wary When Hiring to Rebuild.”  Hurricane Ike will bring many out of state builders and contractors to Texas to help rebuild the areas most damaged by the storm.  According to the Texas Association of Builders (TAB):

“Our industry understands that people want to quickly put their homes and their lives back together,” said Bill Pittman, president of the Galveston County Builders Association. “But the State sets stringent requirements for building and remodeling in Texas that are designed to protect homeowners. Using a builder or remodeler who has met these requirements will help safeguard a homeowner’s rebuilding investment.”

Under state law, home builders and remodelers must register with the Texas Residential Construction Commission (TRCC) in order to do business in Texas. Registration assures homeowners that their builder or remodeler has passed a background check and maintains a Texas business address. In addition, work performed by that builder or remodeler must meet specific building standards and be covered by a warranty.

“Using an out-of-state builder, remodeler or contractor is risky,” said Beaumont builder Bill Little, a director of both TAB and the Home Builders Association of Southeast Texas. “Neither they nor their work is held accountable to standards set by the State of Texas. Hurricane Ike victims run the risk of being re-victimized as they try and rebuild their lives.”

Homeowners or anyone looking to hire a contractor should check their registration status via the TRCC online database at www.texascc.org or by calling 1-877-651-TRCC.

We can only learn from past experiences.  August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned.  Burdine’s did not conduct criminal background checks on those workers they sent into their clients’ homes.  Sue’s life is over. Had a criminal background check been done, Sue might still be alive today.  The Sue Weaver C.A.U.S.E. was created to promote Consumer Awareness of Unsafe Service Employment.

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