Background Screening News

Failure To Conduct Adequate Pre-Employment Criminal Background Search Costs Assisted Living Facilty $750,000

2009-08-10T22:29:00.000-07:00

A jury awarded $750,000 to a disabled man who was a resident at Cote De Neige Home for Adults after he was sexually assaulted by a worker at the facility. The lawsuit was brought against the assisted living facility for their failure to conduct an adequate pre-hiring background search before hiring a certified nursing assistant.

When is it Safe To Hire Someone With a Criminal Record?
New Carnegie Mellon Study Provides Empirical Basis For Employers To Use in Assessment of Prior Criminal Records.

Everyday Cheapskate: Job applicants face new background check rules
Most employers now care more about a prospective employee's background. With so many applicants to choose from, employers can afford to be picky.

What's new in background checks for job seekers is how prospective employers may view your social networking activities. What you post by way of text and photos to Facebook, MySpace and Twitter may well become included in your job application.

Employers have been warned to undertake more rigorous checks into candidates' backgrounds
New research revealed the number of prosecutions for employers hiring illegal immigrants increased by 513% in 2008. The new civil penalty for employers who hire illegal immigrants has made a big difference to the UK Border Agency's activity in bringing cases against employers.

Schumer: Stricter background checks needed for those who work with kids
U.S. Sen. Charles E. Schumer, D-N.Y., today proposed allowing summer camps, day care centers and non-profit groups to run criminal background checks through the FBI. Currently, Rochester-area agencies only can check employees and volunteers through state records, which may not include crimes against children in other states.

E-Verify Under Fire
The U.S. Department of Homeland Security (DHS) recently announced that it will rescind a rule outlining actions employers should take when they receive a “no-match” letter from Social Security Administration indicating possible illegal employment… DHS indicated that it still intends to pursue more recently proposed rules that would require federal contractors to enroll in the government’s E-Verify system and check the work authorization of all new hires and all employees assigned to a federal contract.

2006-12-20T16:39:00.000-08:00

Truckers often carry rap sheets - Of 953 truckers faulted in fatal crashes from 2000 through 2005, at least 1 in 4 had been convicted of a criminal offense or received deferred adjudication before the crash. More than 14 percent had committed drug or alcohol offenses prior to their accidents, and more than one in 10 were felons. Read more

Background checks to protect children - a man accused of sexually assaulting an 8-year-old boy he taught at a rec center also had been working with children at two Denver elementary schools. Read more

Band director charged with student rape - The director of the Delaware State University band has been charged with second-degree rape, two counts of third-degree unlawful sexual contact, and providing alcohol to an underage person. Read more

Man sold drugs at pizzeria- Police arrested a 31-year-old CiCi's Pizza manager who they believe may have been the main source of Ecstasy for Grapevine-Colleyville school district teens and operated out of the restaurant. Read more

2006-07-27T14:17:00.000-07:00

Bush signs law for national sex offender registry

President George W. Bush on Thursday signed legislation that will establish a national sex offender registry and try to make it harder for sexual predators to reach children on the Internet.

The legislation, called the Adam Walsh Child Protection and Safety Act of 2006, is named for Adam Walsh, a 6-year-old boy who was abducted 25 years ago on July 27, 1981, and eventually killed.

The boy's death prompted his father, John Walsh, to lead a long effort to seek greater protections against violence crime. He became host of "America's Most Wanted," a television show aimed at catching criminals.

"The bill I sign today will strengthen federal laws to protect our children from sexual and other violent crimes, will help prevent child pornography, and will make the Internet safer for our sons and daughters," Bush said in signing the new law in the White House Rose Garden.

The National Center for Missing and Exploited Children estimates that there are more than 560,000 registered sex offenders in the United States. About 100,000 are not registered or do not have up-to-date registrations.

The legislation will create a national sex offender registry, available to the public, to plug gaps in existing state systems and community notification requirements.

An offender who does not keep his registration up to date in any state in which he lives, works or attends school could face felony charges and up to 10 years in prison.

It will also create a registry for substantiated cases of child abuse or neglect to help law enforcement and child protective services.

Addressing concern about Internet predators and online pornography, the bill establishes education grants, and provides for 200 new federal prosecutors and 45 new computer forensic scientists to work on such crimes.

2006-06-21T11:02:00.000-07:00

Cable Installers & Criminal Backgrounds - Charter Communications hired a contractor with a manslaughter conviction and an installer with a suspended driver's license and two orders of protection in his past. Read more

Background check could have foiled embezzler - Man had three convictions when the Michigan Department of Environmental Quality put him in charge of handling payments for water permits. He later pled guilty to embezzling more than $180,000. Read more

Nursing home worker checks can be lacking - Employee screenings get renewed attention after the case of a woman sentenced to jail for stealing elderly patients’ morphine. Read more

Suspect in sex crime coached in youth event in Chesapeake - Despite a conviction four years ago and another arrest recently on charges of inappropriate conduct with a child, the 38-year-old was able to coach boys and girls at the Mayor's Cup T-Ball Classic. Read more

School hired murderer; state cancels license - The license of a private alternative school in Gresham, OR has been suspended after a teacher's aide was accused of rape and turned out to be convicted murderer. The Oregon Department of Education also has instructed the Academy of Alternatives to complete background checks on four of its staff members. Read more

Bill to track sex offenders in care homes - The Suffolk (New York) Legislature is expected to adopt a bill that will require nursing home operators to determine whether their employees, residents, volunteers and student interns are listed on the state's sex offender registry. Read more

2006-05-11T14:28:00.000-07:00

Hill Impasse Spurs States to Tackle Illegal Immigration - State legislatures around the nation are considering hundreds of proposals dealing with illegal immigration, reflecting the exasperation of many local officials with Congress's failure to contend with the millions of undocumented workers who have entered the nation in recent years. Read more

Teen who says art teacher abused him sues board -
A Miramar teenager who told police his middle school teacher molested him is suing the Broward School Board for negligence. Read more

Food-stamp workers had criminal backgrounds - In a rush to find workers after Hurricane Wilma, Florida's Department of Children and Families hired dozens of temporary workers with criminal backgrounds to handle food-stamp applications that contained Social Security numbers and other personal information. Read more

2006-04-17T15:31:00.000-07:00

City jailer resigns in wake of investigation - A A Zanesville, Ohio corrections officer has resigned after an internal investigation revealed he has a history of sexual harassment and lied on his job application. Read more

Knowing is half the battle, especially for new hires - Workplace assaults total 2 million each year. Employee theft costs $40 billion annually and causes 30 percent of business failures. Lawsuits for negligent hiring are on the rise and can cost a company millions. Read more

RESUMES: JUST THE FACTS, PLEASE - A report released in 2005 by InfoLink Screening Services said that 14 percent of employees lied about education on their resumes. Read more

In Wake of Student's Murder, Lawmakers Press To Allow Officers To Work as Bouncers - Read more

Senate OKs bill on ex-cons in nursing homes - The proposed law calls for nursing homes to pay for criminal background checks on all adult residents and requires registered sex offenders to be segregated in their own bedrooms. Read more

2006-04-17T15:27:00.000-07:00

More states consider guns-at-work legislation

Security Director News, By Rhianna Daniels

ATLANTA--Legislation being proposed in Georgia and Virginia that would allow licensed gun owners to legally store weapons in vehicles parked on company property may heighten fears of increased workplace violence incidents among area security directors.

"It certainly would be another major concern to have to add to their workload," said Jack Lichtenstein, director of public policy for ASIS International. "The workplace violence issue is a very real concern of ours."

The laws would not only allow workers to keep guns in their vehicles, but would also overturn any regulations companies may have in place that do not allow weapons on property.

Oklahoma already has a similar law in place, but this legislation has met with mixed reviews. ConocoPhillips has been the most active corporation as of late in the fight against allowing guns at work in the state, going as far to seek a repeal of the law last year and boycotting guns at its offices and gas station chains in the area.

After its move, the National Rifle Association launched a boycott of the energy company.

In late February, Florida tabled a similar proposed law after it received a barrage of criticism.

Roy Bordes, president of The Bordes Group, said security directors take this type of legislation very seriously as most corporations have a policy that prohibits weapons in the workplace, as do insurance companies.

"It is against corporate policies and I don't want to say that it adds to the potential of workplace violence, but it does," he said.

Lichtenstein mentioned that the National Rifle Association is in the process of trying to have these laws passed at the state level. The NRA's argument, Lichtenstein said, is that having more employees armed would be beneficial in the event of a crisis.

"We are not an anti-Second Amendment group," he said. "Our members are largely former military and law enforcement, but we think for a number of reasons this is bad law."

There are four major areas that ASIS identified as specific problems in a position paper on the issue. Primarily, it minimizes the control property owners have as well as employer rights.

"Employers have the right and responsibility to provide a safe workplace," he said, "that is manifested in all manner of workplace policy aimed at keeping people from getting hurt and from hurting each other."

ASIS' other areas of concern include workplace violence and homeland security.

"The thought of strangers being able to drive up to a refinery, power plant or other critical infrastructure with loaded weapons in the car is beyond the pale."

2006-03-14T14:20:00.000-08:00

Barkeeps rely on bouncers’ reps - NYPD investigators are focusing their probe into the slaying of Imette St. Guillen of Mission Hill on Darryl Littlejohn, a 41-year-old violent ex-con with a lengthy criminal record who worked as a bouncer at The Falls bar in Soho. Read more

Seeking out criminal pasts - A report last month in the Detroit News showed the result of conducting criminal background checks on 200,000 current school employees in Michigan, as mandated by a school safety law that went into effect Jan. 1. More than 4,600 of the employees had committed criminal offenses, of which 2,200 were felonies. More than 100 of the crimes were sex offenses. Among current employees, 23 were convicted of homicide, 21 of armed robbery, 11 of child abuse, 10 of escaping jail or prison and 355 of drug felonies. Read more

Oh, what a tangled résumé - People who write résumés are trying to market themselves. So like businesses advertising products, perhaps it's not surprising that they sometimes polish the truth. Companies that perform background checks on job seekers say perhaps 20 percent either make a false claim on their applications, or neglect to mention problems. Read more

Prep-school loss: Trusted friend and $1 million - Rex Stephen "Mr. Steve" Clark was like a son to William and Pouneh Alcott, someone they thought they could always count on. The relationship started when Clark enrolled his two children in the private school they founded, Lake Mary Prep. Soon, Clark was doing volunteer work. The Alcotts liked him so much, they added him to the payroll. Then they put him in charge. That's when things went terribly wrong. Authorities say he began stealing from the school, siphoning cash in small and large amounts during a 2 1/2-year period. He eventually took more than $1 million, police say. Read more

Ice cream peddlers could face checks - Mr. Softee, beware. To sell your frozen treats, you and the Good Humor Man would have to undergo a background check under a measure that passed the House on Friday. Also under the dessert bill, sex offenders and certain convicted criminals would not be allowed to peddle treats if the bill becomes law. Read more

Charter school principal is fired - The new principal of Buffalo United Charter School, who was arrested twice in four months in 2003 for allegedly threatening his estranged wife, was fired Friday. Charter school officials apparently had been unaware of Michael P. Carr's criminal background until it was brought to their attention by a Buffalo News reporter earlier in the day. Read more

Rejection raises doubt about credit - The law requires companies to disclose the source of adverse actions against employees or potential employees, but only if the information came from an outside consumer-reporting agency. Read more

40 known felons employed by the University of Wisconsin System Read more

The Rules Have Changed for Corporate Criminals - Have You Ever Been Convicted of a Felony? Read more

2006-03-07T09:48:00.000-08:00

InfoLink Screening Services Joins Kroll's Background Screening Division
Kroll Inc., the global risk consulting company, announced today that it has completed the acquisition of InfoLink Screening Services, Inc., a leading, privately-held background screening company headquartered in Chatsworth, Calif., a Los Angeles suburb. InfoLink will operate as the West Coast hub office for Kroll’s Background Screening division, which is headquartered in Nashville, Tenn. Read more

Background checks get more important
Companies are relying more on pre-employment background checks to ease security concerns and protect against costly lawsuits. “It’s getting more important,” said privacy lawyer Robert Belair, editor of the Privacy and American Business newsletter. “The incidence of negligent hiring lawsuits is way up.” Read more

Meth Taking Toll on Businesses, State
Meth use has increased among U.S. workers by 86 percent over the past five years. It also jumped 13 percent in the first half of 2005 among workers in jobs and industries required by the federal government to test employees in high-risk and safety-related positions.
Read more

Background check nabs robbery suspect
Louisville police get break in Georgia. A man wanted in two armed robberies in Louisville was arrested yesterday after applying for a job at a charitable organization in Macon, Ga. Read more

Spherion temps indicted in fraud
Temporary workers who were assigned to Red Cross call centers by Spherion have been accused of giving away thousands of dollars intended for Hurricane Katrina. At least 17 workers placed at a Red Cross call center by Fort Lauderdale-based Spherion have been indicted on fraud charges, raising the issue of screening checks done by staffing agencies that supply temporary workers. Read more

2005-12-27T12:32:00.000-08:00

Security personnel rely on background screening for new hires
Without a national database from which to retrieve information, and with no such system likely to be put in place any time soon, security and human resources personnel are relying on background screeners and their network of researchers to comb court documents and determine whether potential employees meet a company's hiring criteria. Read more

Who is checking the background checkers?
Some 80 percent of employers now require background checks for all potential employees, according to the Privacy Rights Clearinghouse (PRC), a consumer rights advocacy group in San Diego…. But what if a background check is in error? Read more

Day Care Background Checks in Backlog
After pre-schools and daycares hire teachers, they have to pass a background check if they're going to stay on the job. The process is supposed to be quick so that teachers with trouble in their past can be fired before they do any more damage. But the state agency handling the background checks is badly backlogged. The result is long delays. Read more

Football camps didn't check most workers
Six employees of the University of Colorado's youth football camp had criminal records that weren't discovered until after the camps had occurred - including one convicted of misdemeanor child abuse, according to a state audit released Monday.Read more

Church requiring background check for all personnel
When the New Year arrives, every member of the staff at the United Methodist Church of La Mirada and every Sunday School teacher, counselor and volunteer will have undergone a background check. It's just one of the policies instituted by the La Mirada church and all of the United Methodist churches in Southern California, Guam, Hawaii and Saipan as part of an effort to stem any sex abuse scandals that have rocked the Catholic Church from occurring in United Methodist churches. Read more

2005-12-08T15:00:00.000-08:00

Who is checking the background checkers?

November 28, 2005 - By Matt Bradley, Contributor to The Christian Science Monitor

John McDonald used to spend hours perfecting his résumé and cover letters before applying for information-technology jobs in his native Boston. But after one potential employer hired a screening agency to investigate his background two years ago, the results have stifled his ambition.

After two weeks of silence from his potential employer, Mr. McDonald pressed the company to let him see his background check report. It stated that he'd failed to disclose an arrest, had used two aliases, and had reported two false employers. McDonald was dumbfounded by all three claims, which he maintains are erroneous.

"I didn't know what to do - still don't," says McDonald about his predicament. "It wasn't a matter of 'I know I'm not going to get [a job],' it was a matter of 'I'm probably not going to get it,' so I have this halfhearted effort."

Over the past several years, background screening has become a boom industry, fueled by increasing concerns about security and legal liability. Some 80 percent of employers now require background checks for all potential employees, according to the Privacy Rights Clearinghouse (PRC), a consumer rights advocacy group in San Diego.

But what if a background check is in error? With little money for legal help, McDonald went to the PRC, whose website provides some assistance free of charge.

"There are many low-level, day-to-day problems that people experience where a lawyer's advice could come in handy," says Tena Friery, the PRC's research director. "Generally, people who have these sorts of problems don't have a lot of money to pay for an attorney."

Industry insiders credit the 9/11 attacks and several high-profile court cases for the growing demand for screeners. One such case involved Boston-based Trusted Health Resources Inc., which went bankrupt after one of its home health aides murdered a patient and his grandmother. In 1998, a jury awarded the patient's family $26.5 million after records showed the caretaker had a criminal record. Today, background screening is a $3 billion industry in the United States.

"There is a much higher level of awareness that doing a background screen is of benefit to the company, clients, its employees, and the person being screened," says Mary Poquette, the cochair of the National Association of Professional Background Screeners. "That's a different view from what we saw even as recently as four years ago."

For many clients, says Ms. Poquette, the numbers speak for themselves. For the first half of this year, 8.3 percent of job applications examined by InfoLink Screening Services in Chatsworth, Calif., revealed some kind of criminal record. (InfoLink merely reports its findings; it does not compare its findings with what someone stated on an application.)

"This is a really amazing figure when you consider that people knew they were going to have a background check," says InfoLink president Barry Nadell. Routine screening of 1,600 volunteers for the Los Angeles County Fair turned up at least three registered sex offenders.
InfoLink's recommended search is four-pronged. First, it checks court records in each county where the job applicant lived, going back at least seven years. Next, the company runs a motor vehicle report, which can uncover convictions the applicant may not have reported. A Social Security number check helps verify the subject's identity, past residences, and possible aliases. The applicant's name may also be run through other records, including incarceration listings, sex-offender lists, and court records.

InfoLink then calls county courts at random to double-check researchers' findings. Depending on the number of applicants and the jurisdiction (court fees vary), Mr. Nadell says a single screening costs from $15 to $50. Those fees can add up, so there's a movement among employers to cut costs, Nadell says.

"Some are using strictly databases," he says, "and that's very concerning to our industry because of the inaccuracies that reside in databases. The industry's error rate [among screeners who personally verify database records] is probably less than one in thousands. It's very small."
The most common mistakes, says Nadell, come from sloppy court records and databases.
But as the background-checking industry continues to grow, who screens the screeners? While laws concerning background checks vary from state to state, the federal Fair Credit Reporting Act sets the minimum standard. Under the law, employers must seek the written consent of applicants prior to the screening. And before an employer can reject a potential employee based on his or her background check, the applicant has the right to receive, review, and dispute the findings.

Job applicants also have the right to sue a screening company if errors on a report were the result of negligence.

If the employer uses a background screening company whose disclosure and authorization form for a background check includes a waiver to indemnify the screening company, "that means the company doesn't understand the law," Nadell says. "How do you trust the screening company ... if they won't be responsible for their own negligence?"

Regardless of whether the screening findings were accurate or not, the fact that McDonald was not given the opportunity to review and dispute his background report may mean that his potential employer violated federal law.

"One of the things I didn't know was that it was illegal for them not to provide a copy of my background check," McDonald says. "They said, 'We'll get to it as soon as we can, as soon as someone's available.' And then there were no responses."

McDonald has not found formal employment since that fateful background report. He has chosen to avoid the issue by working as an independent information technology contractor for smaller firms that cannot afford background checks. But with low-paying temporary work, McDonald says clearing his own name seems like a daunting task. "The information out there is vast," he says. "It's kind of hard to come up with large sums of money to do anything."

By the numbers

A study of job applications put through a preemployment screening process reveals that many job-seekers have something they may be reluctant to put on an application. InfoLink, a provider of employment background checks, examined tens of thousands of job applications from January through June. It found that:
41.6% had a violation on record with the Department of Motor Vehicles.
39.2% had bad credit, such as an account that went to a collection agency.
26.4% had discrepancies in their résumés about past employment.
8.3% had a criminal record.
8.2% inaccurately reported their level of education.
3.3% had tested positive for illegal drugs.

Source: InfoLink Screening Services

2005-11-22T16:05:00.000-08:00

Online Screening Saves Time and Money.
User-friendly tests and carefully thought-out assessments can help you find better candidates faster. Technology can’t make your hiring decisions for you, but effective online programs can add efficiency to your screening and candidate assessment processes. Used properly, these programs are particularly good at the early step of weeding out unqualified candidates. Read more

Private Schools May Check Workers - Lawmakers are considering plan for background inquiries.
High school referees, vending machine deliverymen and plumbers have to undergo extensive criminal background checks now under a new sex offender law if they do their work on public school property. Read more

Employment Screening – Justifying the Expense
Measuring cost per denial is an effective method of calculating the ROI of a company’s employment screening program.Read more.

Technology's Impact on Background Screening
Technology advances continue to impact the way we conduct business and are having a profound effect on the background screening industry. Advances in integrating information systems are creating the capability to access business information easily through one source, which is transforming background screening systems that have historically been standalone feeds.Read more.

2005-08-26T23:19:00.000-07:00

Study Finds FBI Criminal Database Search Ineffective for Employment Background Checks
August 26, 7:45 am ET

DURHAM, N.C., Aug. 26 /PRNewswire/ -- As US employers increasingly utilize criminal background checks in their hiring process, the National Association of Professional Background Screeners (NAPBS) has identified one source of information that employers should avoid: the FBI Criminal Database.

In reaction to recent proposed federal legislation that would allow employers direct access to the FBI's database, NAPBS commissioned a study to evaluate the accuracy and completeness of this FBI criminal search.

The results were shocking.

The study found that in a significant percentage of searches, the FBI database returned erroneous or incomplete information.

The study, conducted by Craig N. Winston, an assistant professor of criminal justice at Sonoma State University, found that the FBI data lacks proper identifiers to credibly link a criminal hit with the subject of the investigation.

Another finding was the large number of missed records and false positives generated. For example, when analyzing a sampling of 93,274 background checks in the state of Florida, Winston's search revealed that the database missed 11.7 percent of the criminal records it should have identified. Even worse - of the more than 10,000 criminal records found, 5.5 percent of them were falsely attributed to those who were not convicted of a crime.

The Fair Credit Reporting Act (FCRA) compels employers to use the most up- to-date and accurate information when screening applicants for employment.

NAPBS co-chair Jason B. Morris says, "If employers are granted access to the FBI's data, they can easily be lulled into the false sense of security that they are availing themselves of the most accurate and comprehensive search available. As a result, they could be opening themselves to increased risk in the workplace and litigation from wronged job applicants."

Results from this comprehensive study can be found at http://www.napbs.com.

Founded as a non-profit trade association in 2003, the National Association of Professional Background Screeners (NAPBS) was established to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and foster awareness of issues related to consumer protection and privacy rights within the background screening industry.

Media Contact: Tracy Seabrook NAPBS 919.433.0123 info@napbs.com

Background Screening News

2005-07-21T10:35:00.000-07:00

Background checks could have problems
More and more employers require employee background checks, which is why it's no surprise more and more private companies are popping up offering to provide them. A Target Five Investigation shows it can be risky business. A bad background check nearly cost Eric Williams a job. Read more.

Protect Your Organization Against Negligent Hiring Suits
Speaking to a packed house June 20 during his session at the SHRM Annual Conference and Exposition, Nadell said that nothing takes the place of thorough applicant background checking. However, no background checking process is foolproof, so it's crucial for companies to know how to obtain the most accurate information while remaining compliant with the myriad federal and state laws that regulate the industry. Read more.

2005-05-20T09:41:00.000-07:00

Cape writer's family sues over death
$10m filing names murder defendant and his employer
By Ralph Ranalli, Globe Staff - May 18, 2005

The family of slain Truro writer Christa Worthington has filed a $10 million wrongful death lawsuit against her alleged killer and the Cape Cod trash-hauling business that employed him at the time of the slaying, lawyers said yesterday.

Christopher M. McCowen, 33, was arrested last month and charged with Worthington's rape and murder after a DNA sample he gave voluntarily was matched to evidence found at the crime scene. At the time, McCowen was working as a hauler for the Cape Cod Disposal Co. , and made weekly visits to Worthington's Depot Road home to pick up her garbage.

In a lawsuit made public yesterday, a lawyer for Worthington's estate made a $10 million wrongful death claim against both McCowen and CCDC Equipment Services, Cape Cod Disposal's parent company, alleging that both were culpable in her death.

The lawsuit charges that Worthington suffered ''great pain of body and anguish of mind" at McCowen's hands and that Cape Cod Disposal ''had an obligation to use reasonable care in selecting and retaining its employees to be sent to the homes of its customers."

The company, the lawsuit alleges, failed to use reasonable care in hiring McCowen, ''who had a history of criminal and violent behavior including but not limited to burglary, grand theft, trafficking in stolen property, felony assault, and threats to women which resulted in the issuance of restraining orders."

By hiring McCowen, the company put him in a position to familiarize himself with Worthington's home and routine, the lawsuit contends.

Weymouth lawyer Chester Tennyson Jr. confirmed yesterday that he filed the lawsuit earlier this month on behalf of Worthington's estate, which is administered by her father, Christopher Worthington, and BankNorth. Worthington's daughter, Ava, who was 2 years old at the time of the killing and was found clinging to her mother's lifeless body, is a beneficiary of the estate.
Tennyson said he would have no comment on the Barnstable Superior Court lawsuit and that he had asked Worthington's relatives to refrain from talking, as well.

''We'll do our only talking in the courtroom," he said.

Francis O'Boy, McCowen's Taunton-based lawyer, also declined to comment on the lawsuit yesterday. A lawyer for Cape Cod Disposal, however, said that the company admits no liability and plans to aggressively defend itself in the lawsuit.

''First of all, it has to be proven that he [McCowen] committed the act he is accused of committing," lawyer Bruce Bierhans said. ''Then the family has to prove that my client could not only have foreseen the crime, but could also have prevented it. Under Massachusetts law, the family has a very substantial burden of proof."

''This is not a nursing home or a day-care center; they are hiring people to pick up garbage," Bierhans said. ''We believe, and it will be our position in court that Cape Cod Disposal was fully in compliance with all of their obligations under the law."

In the criminal case, a state judge yesterday rejected O'Boy's petition that McCowen be released on $50,000 cash bail and ordered him to remain in jail pending trial.

According to recently unsealed court documents, McCowen insisted to police last year that he did not kill Worthington.

State Police investigators interviewed McCowen twice, once three months after the January 2002 slaying and again two years later. After the second interview, McCowen volunteered to have a sample of his DNA taken by swab. That sample was matched last month to DNA taken from Worthington's body, according to court documents made public yesterday.

According to the affidavit, McCowen said he had limited contact with Worthington; although he went to her house every Thursday, he said he did not know her and never went inside.

''Chris McCowen stated that Christa Worthington would occasionally watch him from inside her home through the front door and would sometimes wave," Trooper Christopher S. Mason wrote of the 2002 interview in an affidavit filed two months ago in support of the murder charges against McCowen.

© Copyright 2005 The New York Times Company

Background Screening News

2005-04-25T11:01:00.001-07:00

Employers Win Most Drug Testing Cases
David Shadovitz, Human Resource Executive

A new book released by the Institute for a Drug Free Workplace in Washington reveals that employers are winning most drug testing related court battles. Employers prevailed in roughly two-thirds of the nearly 1,200 legal decisions on drug testing, according to the book, 2004-2005 Guide to State and Federal Drug Testing Laws.

In the last year,” says Gina M. Petro, counsel to the institute and a co-author of the guide, “87 court decisions upheld drug testing, and 46 did not.” Since the group began tracking suits in the mid-1980’s, employers prevailed in 825 cases, while challenges have been successful in only 374 cases. The numbers are somewhat higher for federal court cases, in which employers have prevailed 76 percent of the time.

Criminal background checks incomplete How convicted felons can slip through safety net
By Bob Sullivan, Technology correspondent, MSNBC
Updated: 5:06 p.m. ET April 12, 2005

Is there a felon in the next cubicle? What about in your child's afterschool athletic league?
Employers and volunteer organizations are increasingly turning to national commercial database searches provided by private firms to ferret out potential convicts from their ranks. The searches are quick, inexpensive, and promise nationwide coverage -- in theory, preventing convicted felons from moving away from a checkered past.

But experts say the nationwide tallies are often full of holes, and contain as few as 70 percent of all felony conviction records, leading in turn to a false sense of security. Read article at MSNBC.

2005-04-14T11:19:00.000-07:00

LexisNexis: Files May Have Been Breached
LexisNexis Says Thieves May Have Breached Computer Files Containing Information of 310,000 People

Criminals may have breached computer files containing the personal information of 310,000 people, a tenfold increase over a previous estimate of how much data was stolen from information broker LexisNexis, the company's parent said Tuesday.
Last month, London-based publisher and data broker Reed Elsevier Group PLC said criminals may have accessed personal details of 32,000 people via a breach of its recently acquired Seisint unit, part of Dayton, Ohio-based LexisNexis. LexisNexis is a Reed subsidiary.
Reed said it identified 59 instances since January 2003 in which identifying information such as Social Security numbers or driver's license numbers may have been fraudulently acquired on thousands of people. Read article…

Background Screening News

2005-04-11T13:40:00.000-07:00

The Importance of a Complete Background Check
Criminals are learning that the primary identifier in court records is date of birth and that they can conceal their past by providing a false DOB. In his new book “Sleuthing 101, Background Checks and The Law,” Barry J. Nadell, President of InfoLink advises employers to always conduct a motor vehicle report as part of their background screening program… even if the job position does not include driving. Read more…

Lack of Background Check Leads to Liability
Blair v. Defender Services Inc., 4th Cir., No. 03-1280, Oct. 25, 2004. A college student was allowed to pursue her claims for negligent hiring and retention against a janitorial staffing service after allegedly being attacked by an employee of that service, the 4th U.S. Circuit Court of Appeals has held. Read more…

Bad Data Fouls Background ChecksWhile recent news has folks concerned about identity theft, inaccurate data is just as big a danger -- and individuals are left to police the problem themselves. Read more…

Hiring Presents Tricky Areas for Employers
A welter of federal and state laws and legal decisions — and fears of lawsuits — have put tight constraints on what information you can ask someone you're considering for a job, or what information you can give about a former employee. Read more…

Banking body lists security breaches amid data fears
Amid growing concern about identity theft, a US banking regulator on Thursday detailed several instances of security breaches at banks and previewed new guidelines on when banks must tell the customers about such lapses. Amy Friend, assistant chief counsel at the Office of the Comptroller of the Currency, said that in one instance, the agency “directed a large bank to improve its employee screening policies” after determining that the bank had “inadvertently permitted a convicted felon, who engaged in identity theft-related crimes” to become an employee.

2005-03-20T16:11:00.000-08:00

Did ChoicePoint End Run Backfire?
By Joseph Menn, LA Times, March 13, 2005

The data-collecting company has managed to avoid being bogged down by regulations -- until maybe now.

ALPHARETTA, Ga. — ChoicePoint Inc. was created to avoid just the sort of mess in which it now finds itself.

The nation's biggest private collector of personal information was spun off seven years ago from credit bureau Equifax Inc. largely to get around laws restricting the way such bureaus sell data.

Because it was not considered a financial services company, ChoicePoint was not subject to data laws, and for years the plan worked like a charm.

Freed from regulation, the company saw sales more than double — and its profit and stock price more than quadruple — as businesses demanded more data to manage risks and target marketing. ChoicePoint became the quintessential Information Age company, culling all manner of sensitive facts and figures about virtually every adult in the United States, some 19 billion records in all.

But in the wake of a security breach that allowed a ring of identity thieves to peruse tens of thousands of those records, ChoicePoint suddenly faces the sort of government oversight that it and similar companies have sought to avoid.

The Securities and Exchange Commission and other regulators are investigating ChoicePoint's practices. Last week, the Senate Banking Committee held the first in a series of congressional hearings. Legislators and industry experts predict new regulation of ChoicePoint and competing information brokers that compile and sell Social Security numbers, driver's license numbers and financial histories to tens of thousands of customers, including lenders, landlords and many of the Fortune 500.

"It's very unfortunate," said former ChoicePoint Vice President Catherine Aldrich. "They are a victim of a really heinous crime, and they are going to be really penalized — the whole industry is."

Privacy advocates disagree, saying ChoicePoint brought the prospect of more vigorous regulation on itself with an aggressive push to find new customers. They note that the recent breach was only the most widely publicized and that ChoicePoint has erred before — as during the 2000 election, when it was hired by the state of Florida to run background checks on voters.

Chief Executive Derek V. Smith and other company officers declined repeated interview requests, as did company directors.

In regulatory filings and news releases, though, the company has said it is cracking down on potential identity thieves by turning away some customers, giving up a projected $15 million to $20 million in annual revenue. Last year, the company posted profit of $148 million on sales of $919 million.

In a statement to Congress last week, ChoicePoint said it could live with some measure of new regulation. In the past, information brokers have offered support for legislation and then succeeded in watering it down, according to a new book on the industry, "No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society" by Robert O'Harrow Jr.

Information Raid

The latest problems erupted when con artists posing as small-business owners looked up sensitive information on 145,000 individuals.

ChoicePoint then made several missteps. Forced to notify California consumers under a law that took effect in 2003, ChoicePoint initially said only 35,000 state residents were at risk. Only later did it acknowledge the national scope of the breach. After that, CEO Smith said the incident was the first of its kind. But The Times soon discovered that, in fact, a similar episode had occurred in 2002.

Meanwhile, ChoicePoint still hasn't checked for people who might have been victimized before the California law went into effect.

All in all, ChoicePoint's handling of the affair has only added to the chorus calling for tighter regulation.

"They probably were too cavalier about it," said analyst Brandt Sakakeeny of Deutsche Bank Securities. "They didn't expect the firestorm that they've got."

That might be because despite all the company's knowledge about the people in its databases, ChoicePoint has few direct dealings with them.

The same isn't true of Equifax, Experian Ltd. and Trans Union Corp., which must address errors in the credit reports they compile. Although ChoicePoint resells information from the three bureaus, it doesn't have to take responsibility for the content.

That legal loophole, which Congress may soon shut, has been a tremendous boon to ChoicePoint. And the company has benefited from the wording in other laws as well. Financial institutions, including banks and other lenders, face much more onerous regulation about what they can do with customer data. ChoicePoint says it doesn't meet the definition of a financial institution.

"There are a lot of dark crevices in the law that need to be opened up and filled in," said Daniel Solove, author of "The Digital Person: Technology and Privacy in the Information Age."

ChoicePoint has flourished by exploiting such regulatory weak spots, even in insurance services, its oldest and most profitable line of business. The company keeps a database of insurance claims by holders of auto and homeowner policies. Insurers submit those records to the database and check new applicants against it.

State Sen. Jackie Speier (D-Hillsborough) and other critics say that consumers often don't know the database has been tapped or what's in it; that the files can include errors that go uncorrected; and that insurers even count simple inquiries that don't lead to the filing of a claim as a strike against policyholders.

Speier, who pushed a 2003 bill that would have curtailed the practice, maintains that insurers sometimes use the information to discriminate against customers. The state Insurance Department says one insurer, for example, refused to cover a San Francisco homeowner who had once asked her agent if she was covered for a clogged pipe.

Data and More Data

More frequent targets for critics have been ChoicePoint acquisitions that specialize in collecting widely dispersed public records, including legal judgments, liens and voter registration information, and then tying them to more sensitive data such as Social Security numbers and driver's licenses.

ChoicePoint bought Santa Ana-based CDB Infotek in 1996, shortly before spinning off from Equifax, and added Database Technologies Inc. in 2000. The next year, Database Technologies came under fire for having given Florida election officials a list of thousands of suspected felons that state officials used to bar people from voting.

The list was riddled with errors, and many of the accused were black Democrats. At least 1,000 people were improperly kept from voting, more than George W. Bush's margin of victory. The NAACP sued. ChoicePoint blamed Florida officials for asking for near-matches without making confirmation checks on their own. ChoicePoint settled the case in 2002 and agreed to reprocess its list of suspected ex-cons.

Although ChoicePoint's government deals generate only about 10% of revenue, Sakakeeny said, the company made the area a top priority after the Sept. 11 terrorist attacks, and the firm won a four-year, $67-million contract with the Justice Department. Local police, the FBI and other agencies are big customers, in part because laws prevent the authorities from keeping close tabs on those who aren't suspected of a crime.

"These government agencies are increasingly outsourcing various law enforcement and intelligence functions," Solove said. In a sense, he added, the government doesn't even need its own surveillance program. "It can achieve the same goal by having these companies do the work for them."

Yet ChoicePoint's government work has brought criticism from civil liberties groups.

"Individuals need to give their information to third parties in order to participate in society," Chris Hoofnagle, an attorney with the Electronic Privacy Information Center, wrote in a law journal last year. "It is unfair to cede all individuals' rights to a company that can simply hand over personal information to law enforcement."

Several foreign governments also launched investigations after ChoicePoint acquired secret information on their citizens. Mexico placed three accused middlemen under house arrest for their suspected roles in helping ChoicePoint buy the entire country's voting rolls, which are protected under federal law.

Despite the backlash, ChoicePoint has indicated that it wants to go much further in mining for information. The company has been working on a secret database prototype for the FBI. And Smith, the CEO, has pressed for the expansion of DNA collection from criminals and others, as well as for parents to take DNA samples from their children.

"In the near future, identity, so weakened by fallible representations like birth dates and Social Security numbers, will be anchored by infallible genetic markers," Smith wrote in his 2004 book "Risk Revolution."

Although such sentiments have alarmed privacy advocates, ChoicePoint has taken the most flak for the way it peddles far more workaday information.

The Nigerian fraud rings that repeatedly penetrated ChoicePoint's databases passed themselves off as legitimate small companies interested in tapping people's addresses, phone listings, Social Security numbers and credit reports.

The company stresses that it doesn't grant access to information to just anybody. But it has opened its arms much wider in recent years.

Backgrounds Exposed

The clearest case is a product called Employee Background Check, which was sold in 2003 to the general public at Sam's Club stores for less than $40. ( ChoicePoint's lead outside director, Thomas Coughlin, recently retired as vice chairman of Wal-Mart Stores Inc., where he oversaw the U.S. operations of Sam's Club.) The kit, since pulled from the market, featured many of ChoicePoint's databases and allowed customers armed with someone else's Social Security number to look up identifying information and possible criminal records.

Ostensibly aimed at employers, the product did little to weed out nosy neighbors or crooks.

The package came with a seal reading "Business License Required." But the online registration forms, which took less than half an hour to complete, didn't ask users to submit a license number, according to Pam Dixon, founder of nonprofit research group World Privacy Forum.

And though users were supposed to have the approval of purported job candidates for some searches, all ChoicePoint demanded was that customers check an electronic box marked "candidate authorization obtained?"

The company told users they might be audited, but Dixon said she bought a kit and never got so much as a phone call asking who she was.

"It was the single most insecure background check product I have ever seen in my life," she said.

In some eyes, the Sam's Club sales exemplified ChoicePoint's drive to trade wider access to its information for greater revenue.

"The public records side had really stagnated," said Aldrich, the former vice president, who now works at an employee-screening firm. Even so, she called the kit decision "a really odd thing."

CEO Smith has called for a broad discussion of how the increased flow of information can be used for good and ill.

"The electronic 'pipeline' is not the problem," he wrote. "The problem is society's continuing delay in implementing consistent, coherent standards and guidelines to monitor and protect the flow."

But by putting profit above all else, some analysts say, Smith has lost his shot at driving that conversation.

"They should have taken a stronger leadership role on the process, in who they disclose to," said Gartner Inc. financial security analyst Avivah Litan. "Companies like ChoicePoint can't see the forest for the trees."

*
Times staff writer David Colker and researchers John Tyrrell and Penny Love contributed to this report.

2005-02-16T14:43:00.000-08:00

ChoicePoint Inc. said Tuesday, February 15 that it began sending letters to 35,000 California residents to tell them that their personal information may have been compromised by a fraud ring that obtained credit reports, Social Security numbers and other information on as many as 100,000 victims nationwide in a massive case of identity theft.

Fraud Ring Taps Into Credit Data
L.A. Times

Data theft case widens; 750 fraud victims found
MSNBC

Californians warned that hackers may have stolen their data
USA Today

2005-02-05T22:35:00.000-08:00

More Than 70 Percent of HR Professionals Say Reference Checking is Effective in Identifying Poor Performers

(Alexandria, Va., February 3, 2005)—Nearly 40 percent of HR professionals report that over the last three years they have increased the amount of time spent on reference checking for potential employees, according to the 2005 Reference Checking Survey released by the Society for Human Resource Management (SHRM.)

Most organizations conduct reference and background checks as part of their screening process. Seventy-three percent of survey respondents say that reference checking is somewhat or very effective in identifying poor performers.

“Being able to identify unqualified candidates during the recruiting process saves organizations time and money,” said Susan R. Meisinger, SPHR, president and CEO of SHRM. “Employees provide the competitive edge for a successful business, making it critically important for organizations to be able to recruit the right people. With new technologies, reference and background checking has become easier to conduct and increasingly more important to organizations who want to get a complete picture of the job candidates they consider hiring.”

Ninety-six percent of organizations conduct some kind of background or reference check. Although much reference checking is conducted in-house, 52 percent of survey respondents report that their organization outsources at least part of their reference checking or verification.

Survey respondents report that reference checks have found inconsistencies in areas including certifications, eligibility to work in the United States, degrees conferred, schools attended, and malpractice or professional disciplinary action. The most common inconsistencies - found by about half of survey respondents - are inconsistencies in dates of previous employment, criminal records, former job titles, and past salaries.

Organizations are responsible for checking the references of potential employees, but also are asked to provide reference information about former employees. Due to a fear of liability, 54 percent of organizations have policies to not provide employee references. Yet, 75 percent of HR professionals believe their organization would share more information about current and former employees if there were laws clearly protecting them from legal liability.

The survey was based on 345 responses from a random sample of SHRM members.

###

The Society for Human Resource Management (SHRM) is the world’s largest association devoted to human resource management. Representing more than 190,000 individual members, the Society's mission is to serve the needs of HR professionals by providing the most essential and comprehensive resources available. As an influential voice, the Society's mission is also to advance the human resource profession to ensure that HR is recognized as an essential partner in developing and executing organizational strategy. Founded in 1948, SHRM currently has more than 500 affiliated chapters and members in more than 100 countries. Visit SHRM Online at www.shrm.org

Background Screening News

2004-12-06T10:39:00.000-08:00

Background checks save costly errors
The News Journal, DE
By the time a new employee takes their lunch break on the first day at work, a company has paid that person more than the cost of the background check ...

Backman fired after background check shows problems
San Jose Mercury News, CA
Arizona brass did not conduct a criminal background check on Backman before hiring him and were not aware that he had been arrested for driving under the influence...

2004-10-05T10:34:00.000-07:00

What Every Employer Should Know about Drug Testing in the Workplace

American business has a drug problem. According to the U.S. Department of Labor, more than 8 million Americans use some type of illegal substance. As many as 73 percent of all illicit drug users in this country are employed.

Occupational Hazards
by Sandy Smith

A Gallup Survey of employees conducted by the Institute for a Drug-Free Workplace found that 37 percent of all respondents said that workplace drug use problems had increased in the last 5 years. A majority of respondents supported drug-screening tests. In general, it appears that respondents placed the greatest emphasis on drug testing for those employed in occupations where one person has direct responsibility for many.

As part of the federal government's effort to address the issue of substance abuse in the workplace, the Drug-Free Workplace Act of 1988 was enacted as part of the omnibus drug legislation. This Act - in effect since March 18, 1989 - requires contractors and grantees of federal agencies to agree to provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.

According to Edward Poole, president and COO of OHS Health and Safety Services Inc., Costa Mesa, Calif., several government and private industry studies concluded that each drug user in the workplace "can cost an employer an average of $11,000-$13,000 annually." That adds up to a cost to American businesses of billions in healthcare costs, lost production time, injuries and damage to equipment and facilities. And chances are good, says Poole, that if your employer does not have a drug-free workplace policy and program, then he or she has at least one drug user on the payroll.

It Can't Happen Here

Despite studies and surveys indicating that a significant number of substance abusers hold jobs and work while under the influence, Poole points out that many employers have an "it can't happen here" attitude about substance abuse in the workplace.

"Once they get in there and implement a policy and start testing employees, they're usually very surprised by the results," he says.

Poole tells the story of one client who operated a small, local delivery service. When a representative from OHS Health and Safety Services visited the business owner, he was told repeatedly that there was no reason to conduct drug testing in that workplace. After all, the company had only 63 employees. After a couple of years of rebuffing them, the delivery service owner called OHS.

"He said, 'We're having some problems. There's something going on that's kind of strange. We want to start a drug-free workplace program,'" Poole recalls. (See sidebar on page XX for steps to create a drug-free workplace program.)

OHS helped him write up a company policy about drugs and drug use in the workplace. They posted signs stating it was a drug-free workplace, and passed out pamphlets to employees.

Forty-five days later, OHS showed up unannounced and did what's called a "sweep." He was going to test every employee in the workplace. Nine people immediately walked off the job. Says Poole, "One or two probably had deeply rooted beliefs in the right to privacy and all that crap, but it is probably safe to say that most of those nine employees would have tested positive." Out of the 54 who took the drug test, 19 tested positive for marijuana and several tested positive for cocaine as well. "The employer was shocked," says Poole, "shocked. Most employers have no clue how many employees are working under the influence."

Writing a Policy

The first step toward eliminating workplace drug and alcohol use is the establishment of a drug-free workplace policy. The U.S. Department of Labor (DOL) offers a Drug-Free Workplace Advisor at www.dol.gov/elaws/drugfree.htm that offers guidance on how to develop a drug- and alcohol-free workplace. According to DOL, the policy should lay the groundwork for your program and should answer several questions, including:
1. What is the purpose/goal of your program?
2. Who will be covered by your policy?
3. When will your policy apply?
4. What behavior will be prohibited?
5. Will employees be required to notify you of drug-related convictions?
6. Will your policy include searches?
7. Will your program include drug testing?
8. What will the consequences be if your policy is violated?
9. Will there be return-to-work agreements?
10. What type of assistance will be available?

The policy "spells out, in black and white, the employer's policy about drugs in the workplace. It should be explicit about what will not be tolerated," says Poole.

Once the policy is established and communicated to employees through workplace signage, take-home materials and workplace briefings, employers might want to take the next step and begin drug-testing current employees and new hires. (Poole cautions employers to determine the legality of drug testing in their state before instituting a program.)

Types of Testing

There are several types of drug-testing procedures available, including blood, urine and hair specimen testing. Poole says that blood tests are usually only used in extreme cases, such as the employee being unconscious as the result of a workplace accident and under the care of emergency room physicians or, in certain cases, as demanded by a court order. Hair specimen testing costs about $115-$150 per test nationally, Poole estimates. "Hair can indicate drug-use as far back as 90 days," says Poole. "Most drugs are detectable in urine for only 1-4 days."

Of the approximately 55 million drug tests performed in the United States each year, 90 percent are urine tests. Poole estimates the cost of urine specimen drug testing at approximately $44 per employee.

The rumors that it is relatively easy to "cheat" a drug test are highly exaggerated, says Poole. Most of those products must be ingested repeatedly for hours before the test is administered. So, even if they do work, such products would only be useful for scheduled drug tests, which is something most employers offer only to new hires.

Poole suggests that employers make offers to new employees contingent upon them passing a drug test. He also says that testing employees following accidents and near-misses is advisable, as is testing any employee you suspect to be under the influence. Again, he cautions, check with state employment and privacy laws to ensure the legality of your testing program. As for random tests, the industry standard is to always test 50 percent of the total number of employees each year.

Testing Results

Poole uses the following example to show the cost/benefit analysis of drug testing: A company with 100 employees with an annual turnover rate of 30 percent has a cost per drug test of $44. If the company tests all 30 new hires and conducts random drug tests of 50 percent of its employees, then it is conducting 80 tests per year. Add in another 20 drug tests annually, ordered as "post-accident" or due to "reasonable suspicion," for a total of 100 drug tests per year.

"At $44 per test, that means the company is investing $4,400 per year in what would be - I assure you - a very highly effective drug-free workplace program," says Poole.

He notes that in the first 3-4 months of newly instituted random drug testing of their employees, every company can expect drug "positive" rates of anywhere from 5 percent to 22 percent. Construction companies and food service tend to rank on the high end of the positive scale, he adds. Retail and office workers tend to have fewer positive drug tests.

"By the end of the first full year – at the latest – the rate of drug positives coming back on the lab reports will drop by 50 percent to 80 percent," says Poole. "Drug positive rates of 26 percent will drop to as little as 5 percent and positive rates of 5 percent will drop to as low as 1 percent."

Soon, the company that once had 100 employees that included anywhere from five or six to 24 workers who used drugs in the workplace and perhaps even dealt drugs in the workplace becomes a drug-free workplace. Company production increases and quality of products and services improve. Sick days are fewer; injuries decrease; the number of workers' compensation claims get reduced; insurance and workers' compensation premiums stabilize; and equipment and supplies stop being damaged or disappearing as frequently.

"Let's look a bit more closely at the average $4,400 annual outlay that a company of 100 likely needs to invest to reach an effective, year-around drug testing program. Based on 365 days, the hard cost of drug testing for the company dilutes to only $12.05 per day. With 100 employees, that's about 12 cents per day per employee, or less than one-half the cost today of making a local call from a corner payphone," says Poole. "Wouldn't you say that's a sound investment?"

Sidebar: Steps to a Successful Drug-Free Workplace Program

According to Edward Poole, president and COO of OHS Health & Safety Services Inc., there are 14 steps to a successful drug-free workplace program.

1. Prepare a written "drug-free workplace" policy for your legal protection and provide a copy for all employees. Have the acknowledgment of their review and understanding of it signed and dated by them and place it in their personnel file. According to Poole, 14 states have laws requiring a written drug testing policy; two states require state-approval of the policy before implementing a drug testing program. Such a policy should have the following elements: statement of purpose; coverage and implementation; scope of testing; definitions of terms used; alcohol and drug-free workplace program; alcohol policy; legal drugs defined; illegal drugs defined; education and training required for supervisors and employees; substances to be screened; procedure for the collection of specimens; initial screening and test confirmation process; test results/reporting procedure/employee's right to retest; action level for "positive" test results; additional consequences for violation of the company's drug and alcohol policy; reservation of rights; identification of substance abusers; pre-employment, random, reasonable suspicion, post-accident and return-to-duty testing procedures; consequences of a refusal to submit to testing; testing after rehire; disciplinary action; employee responsibilities under the policy and a contact person.
2. Post "We Are a Drug-Free Workplace" or similar signs in the parking gate entrance, the entrance to your building and the lobby, the coffee room and above the employee time clock. Post similar signs where job applicants can see them. (The law in two states actually requires conspicuous posting of this type.)
3. Circulate substance-abuse prevention education materials (e.g., pamphlets/videos) to all supervisors, managers and other employees once annually. A short reminder notice of your drug-free workplace company policy - and perhaps some drug-abuse facts - should be included inside pay envelopes at least once per calendar quarter.
4. Perform pre-employment drug testing on every new hire. Those testing "positive" for drugs should have their employment offer immediately rescinded no matter how qualified they might otherwise appear to be for the position and no matter how badly you need to fill the position. (The law in five states requires that any drug testing be performed post-hire only; law in one state permits pre-employment testing only in conjunction with a "comprehensive physical" exam; rescission of the job offer can be made following a confirmed positive for illicit drugs.)
5. Include a statement - "Employment subject to passing a drug test" or "We drug test all new hires" - in all help-wanted advertisements. (The law of one state requires that at least 10 days notice be given to an employee prior to his or her drug test.)
6. Randomly drug test (laws permitting) at least 50 percent of your employee base annually. Depending on the number of employees you have, perform random testing at least once monthly or every week.
7. Test an employee for "reasonable suspicion" whenever reasonable cause is justified by virtue of their display of any behavioral or physical indicators of drug-use, including a dramatic change in work performance.
8. Arrange substance-abuse awareness training for supervisors and managers at least once per year. Such training will help them to identify the indicators of drug-use among their crew and teach them the most effective methods of isolating and preventing a possible drug-use related workplace problem before it becomes a crisis for your company.
9. "Post-accident" drug test an employee whenever justified by serious injury, damaged/loss of property, or life. (At least 40 states will consider a denial of workers' compensation benefits when an accident is caused by your employee whose post-accident drug test is positive for illicit drugs. The majority of those 40 states also will consider a denial of unemployment benefits for that same reason.
10. Use only federal/state certified labs for the analysis of all specimens that are sent to a lab. Laws in five states and in one U.S. territory require that all elements of a company drug-testing program - including the choice of testing lab - strictly follow U.S. Department of Transportation guidelines.
11. Have all specimens that initially test "positive" (including those based upon results of on-site drug test devices or kits) re-tested by a certified lab.
12. Utilize the services of a medical review officer for all positive results.
13. Ensure that all test results of employees are kept strictly confidential! Inform only those with a "need to know" of final drug test results and maintain all results with strict security.
14. Impose all terms of your company's written testing policy strictly, fairly and equally with all employees.

Sidebar: Drug-Free Workplace Act of 1988

As part of the federal government's effort to address the issue of substance abuse in the workplace, the Drug-Free Workplace Act of 1988 was enacted as part of the omnibus drug legislation. This Act - in effect since March 18, 1989 - requires contractors and grantees of federal agencies to agree to provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency.

Background Screening News

2004-09-01T12:02:00.000-07:00

Live-in caretaker charged with four felony counts including armed robbery and first degree murder of 79-year-old
Authorities say this is a sad reminder for the public to always do a background check before hiring someone to do this type of work. Read article.

US financial sector warned of insider crimes: report
The study – “Insider Threat Study: Illicit Cyber Activity in the Banking and Finance Sector” – found that banks, investment firms, insurance companies, credit bureaus and others are failing to take the most basic steps such as proper employee background checks to prevent embezzlement, credit and accounting fraud and other crimes. Read report.

Local churches strive to keep sanctuaries safe from sexual predators, harm
Background checks and other implemented safeguards, long held in the secular world, are fast becoming standard practice in the religious realm. Read article.

City of Macon skipped vital step in hiring
The fiasco involving the city of Macon's Finance Director Kelly Clark, if not so painful, would end up on the bloopers show, "How not to hire a finance director." Read article.

Screeners Who Steal
One screener had four Social Security numbers and a conviction for shoplifting, and as seen on a surveillance videotape exclusively obtained by CBS News, he used his position to steal jewelry and more from airline passengers' bags. Read article.

Faculties' pasts go unchecked
The recent discovery that a respected Penn State professor was convicted of murdering three fishermen on a remote Texas inlet in 1965 has fueled a debate over background checks for faculty. Read article.

2004-08-17T16:05:00.000-07:00

Background checks root out job seekers' tall tales

You know who you are. The job hunter who littered his resume with untruths. Or the candidate who feigned a clean criminal record.

The temptation to lie while job-hunting might be strong given the tight economy. But liars beware: More companies are using background checks to vet job applicants. Telling the truth, however tawdry, can only help you get that job.

Take this example from Barry Nadell, president of InfoLink Screening Services in California: An InfoLink client, a hotel owner, did a background check on a potential hire, revealing a prior conviction for prostitution. She wasn't hired, but not because of her illegalities. She had lied on her job application.

Companies have good reason to distrust job applicants. Thirty percent to 40 percent of candidates fudge the truth, according to the Privacy Rights Clearinghouse. Remember University of Notre Dame football coach George O'Leary? He lost his job for lying on his resume about his academic and athletic background.

About 75 percent of businesses surveyed by the national outplacement firm Challenger, Gray & Christmas Inc. said they have been the victim of untruthful hires. The financial hit? About $7,000 for a salaried employee; $10,000 for a midlevel worker; and $40,000 to recruit a new senior executive, according to Recruiting Times.
…

Companies, however, can't freely wander through a person's background. There are guidelines: Officials must get written permission from the applicant; they can use the information only if it specifically applies to the job; and they must give a copy of the report to the candidate if it prompts their dismissal. Did a potential hire, for example, once get convicted for assault - maybe decking a bar patron as a youth? Can't use it against him if he's applying for an engineering job.

What about an accounting candidate who declared bankruptcy? Feel free to reject that person. (Do you really want someone balancing your books who can't balance his or her own?)

Applicants must not lie about past indiscretions. But don't bring them up if you don't have to. "The first thing out of your mouth in an interview shouldn't be, 'I have bad credit,'" said Bob Banuski, president and founder of the Syracuse-based Amtek Human Resources Consultants, which has offices in Rochester.

At InfoLink, 38 percent of its searches in 2004 found problems in applicants' motor vehicle reports. An additional 23.3 percent lied about former employment. Eight percent tried to hide criminal convictions.

Businesses' fear that they will be held liable or lose money from bad hires has fueled growth in such services, Nadell added. From 1996 to 2003, the number of companies doing general background checks jumped from 66 percent to 82 percent, according to the Society for Human Resource Management.

Even InfoLink - a background checking company - isn't immune to fibbing job candidates. One such check revealed a warrant for a candidate's arrest. Another applicant lied about a burglary conviction.

Background Screening News

2004-08-12T14:58:00.000-07:00

Camp counselors may face scrutiny
Some Maine officials say the state should re-examine its regulations governing summer camps following the arrest of a counselor who police say had child pornography on his home computer in Massachusetts.
Read article.

Background checks rile professors
Much of the furor is fueled by the discovery last summer that college professor Paul Krueger spent four years teaching at Penn State University before the school learned that he had murdered three fishermen 40 years earlier.
Read article.

CHARLES Schwab Fined for Lax Employee Screening
The New York Stock Exchange fined the San Francisco-based firm $250,000 for failing to comply with several regulations governing the hiring of employees with criminal convictions.
Read article.

Wal-Mart to scrutinize job applicants
No. 1 retailer to announces tighter screening after workers named in sex assault case.
Read article.

BAD CHECKS
CSO - Framingham,MA,United States
More organizations are investigating criminal histories and other public records to make hiring and firing decisions. It's up to CSOs to make sure this powerful but flawed weapon doesn't backfire
Read article.

2004-07-19T10:25:00.000-07:00

Resumes getting checked twice
From O'Leary to Cyprien, false claims are not unusual

By Pierce W. Huff, Staff writer
The Times Picayune, Sunday, July 18, 2004

Shortly after George O'Leary resigned as the football coach at Notre Dame for putting false information on his resume, Terry Don Phillips, then the athletic director at Oklahoma State, took action.

“After O'Leary, we sent out communication to all our coaches," said Phillips, now the athletic director at Clemson. "If there's something that's not correct on your resume . . . make us aware, so we have a chance to work it out. We had one coach come forward."

Glynn Cyprien wasn't that coach. He was an assistant on Eddie Sutton's staff and played a key role in helping the Cowboys reach the 2004 Final Four. Shortly after that appearance, University of Louisiana-Lafayette athletic director Nelson Schexnayder hired Cyprien as the Ragin' Cajuns' basketball coach.

ULL fired Cyprien on Friday for not having a bachelor's degree from a school that has accreditation recognized by the U.S. Department of Education.

Cyprien listed a bachelor's degree from the University of Texas at San Antonio and bachelor's and master's degrees from Lacrosse University on his resume. He didn't graduate from UTSA, and Lacrosse is an on-line school based in Bay St. Louis, Miss., that doesn't have accreditation recognized by the Department of Education.

Phillips said he was contacted by Schexnayder about Cyprien before he was hired.
"We had a lengthy conversation," Phillips said. "We were flabbergasted to learn what had happened."

It was evident that Cyprien and ULL hadn't learned much from the scandal that rocked college football in 2001. But many institutions, including Notre Dame, changed their policies.

John Heisler, an associate athletic director at Notre Dame, said that before the O'Leary scandal, his university was not in the practice of checking the details of resumes. But that's not the case anymore.

Heisler said Notre Dame has internal and external checks of resumes, and its sports information department always double-checks the details of all press releases involving the hiring of coaches. Athletic director Kevin White and the athletic staff verify the information listed on applications, and the human resources department authenticates degrees and academic information.

"We learned that things we used to take for granted and took as accurate, now we're not taking anything for granted anymore," Heisler said.

LSU athletic director Skip Bertman said his school also learned from the O'Leary scandal.

"When the George O'Leary thing happened, at the next staff meeting I brought out everybody . And one of the topics that zoomed to the very head was for everyone to check their resume," Bertman said. "You know, like I haven't checked mine in years. Check your resume. Go back and really look it over, whoever you are. Fix it so there's nothing -- and I mean absolutely nothing -- with the emphasis being there's nothing in the resume that can get you the job that's more important than if you have lied on the resume. If that's the case, just make sure that everything is verifiable, and I think most of our coaches did that. The O'Leary thing was an eye-opener for a lot of people."
There is no full-proof way to catch every lie in a resume, even with the heightened awareness about past false background scandals. But schools and employers now are convinced that intensive background checks are a must for every new job candidate.

"I mean it costs a lot of money, but it's something that we feel is absolutely necessary," Bertman said. "We started that just about George O'Leary time. We always did some background check, but now we have done one of these professional background checks, where the (prospective coach) has to give you the right to do it. They have to sign off on it, and it's very personal. It's expensive, but obviously it's worth it. So no coach in the LSU athletic department can hire an assistant, not to mention a head coach, until human resources hires a firm and does the background check. It usually takes seven to 10 days, so even if they want to hire the person they have to wait until we're finished."

LSU human resources director David Hurlbert said more and more companies are finding that it pays to do their homework when it comes to new hires.

"I think it's fair to say that there's an increased interest in this area," Hurlbert said. "I think you'll find that with even private-sector employers. People seem to be spending a lot more money and a lot more time on background checks, not just for degrees but for other things too."

Heisler of Notre Dame said he's not sure why some coaches lie about their backgrounds.
"That's hard to say," her said. "Part of it is just the competitiveness in the positions. There is a fine line sometimes between having done the required course work and maybe actually receiving the degree."

But Barry Nadell, the president of InfoLink Screening Services in Chatsworth, Calif., said people stretch the truth on their resumes to get jobs they want.

"They don't believe people like us (employment services) are going to find that information, and so they do it," said Nadell, whose company's list of clients includes the Paramount Pictures, the University of Southern California and Pepperdine University. "We tell people that they are better off being truthful, because often times they'll still get the job by being truthful."

The statistics show that coaches are not alone when it comes to stretching the truth on their resumes. In a study done by Ward Howell International Inc. of 258 human resource executives who reported discovering instances of credential falsification or misrepresentation, 62 percent said they had found fabricated academic credentials, 43 percent found discrepancies in compensation histories and 25 percent said they had come across cases where a criminal record was omitted, according to Business Wire.

According to research done by corporate recruiters and the Society for Human Resource Management, one of four candidates materially misrepresent their educational attainment. Less than 15 percent of all employment applications have educational credentials verified because of the difficulty of getting information required in a timely fashion from multiple sources, according to a story in Certification Magazine by Martin Bean.

Nadell said of the thousands of people that have given the approval for background checks this year, 24 percent have had discrepancies when calling past employers, 8.4 percent have had criminal convictions, 39 percent have had situations ranging from minor to major traffic violations and 5.3 percent have falsified or stretched the truth about their education.

In her book "Lying: Moral Choices in Public and Private Life," Sissela Bok writes: "Some people may not understand what a serious thing it is. When a person does this, after a while they begin to believe it (resume inflation). It obviously hurts institutions and the individuals too."

Background Screening News

2004-06-16T11:25:00.000-07:00

Reason for Leaving a Prior Job Is the Information Most Frequently Fabricated by Job Seekers, According to Global Survey of Executive Recruiters. Read more...

Summer’s Here – Who’s Coaching Our Children
Coaches can become some of the most significant figures in children’s lives. As with any other occupation, some are better than others. However, none should be allowed to become dangerous. Read more...

Public School Audits Background Checks
Rules for background checks on Portland Public School custodians will be reviewed after a worker was arrested on charges of killing her former husband. Read more...

Background Screening News

2004-05-01T11:06:00.000-07:00

Changes expected for spa workers
The Illinois Legislature is pushing forward new regulations that would require background checks and fingerprinting of massage therapists as the state looks to clamp down on prostitution rings using massage therapy as a front. Read article

Couple sues Special Olympics over their child's rape
A couple sued the Special Olympics on Thursday, claiming it should have conducted a more thorough background check on a volunteer who raped their disabled son. Read article

Carsonville honors volunteers who get background check
Field- trip chaperones, foster grandparents, room moms and basketball coaches are about to become card-carrying, certified school volunteers. Carsonville Elementary School is starting a program to thank volunteers who go through a criminal background check. Read article

2004-04-15T15:14:00.000-07:00

Cheap Background Checks often Miss Offenders

The Miami Herald
By Greg Burns, Chicago Tribune Knight Ridder/Tribune Business News

Apr. 11 - Employers worried about crime, terrorism and liability are embracing a new breed of online services for screening job candidates, but these low-budget background checks don't always check out. The cheapest ones routinely fail to identify criminals, performing such superficial reviews that serious offenders can get perfectly clean reports, critics say.

Even when these services uncover criminal records, the information often is incomplete and unreliable. And with instant checks costing as little as $10 apiece, the trampling of privacy rights and fair-hiring laws can become as simple as a point and a click, the critics say.
While the private background-check business has a few big players, hundreds of upstarts have emerged in recent years to cash in on the nation's heightened security concerns, according to Shawn Bushway, a criminologist at the University of Maryland who has studied the booming industry.

Some 467 separate companies offer background checks on the Internet, Bushway said. And in at least some instances, they provide little more than false assurances to those vetting everyone from truck drivers to child-care providers.

"It's absolutely impossible to know who these companies are," he said. "They're not responsible to anybody about anything." In conducting his research, Bushway obtained the criminal records of 120 current parolees in the state of Virginia, then submitted their names to a popular online background check company -- he won't say which one. Sixty came back showing no criminal record at all, and many of the other reports were so scrambled their offenses scarcely could be identified, he said. "They look like different people."

The Chicago Tribune conducted a similar spot-check six weeks ago, submitting the names and birth dates of 10 Illinois offenders whose sentences were reported in the media for crimes ranging from drunk driving and fraud to possession of child pornography. InstantPeopleCheck.com found no criminal records for any of them in its $9.95-per-person statewide search. It flagged one as a sex offender, based on his entry in the state's free online registry, but included no corresponding description of his guilty plea a year ago for soliciting a juvenile prostitute.

The service, chosen at random from the Internet, won't disclose the identity of its owners or employees, and lists its mailing address as a post office box in an Anchorage retail mall. Through an unsigned e-mail, InstantPeopleCheck said its search fulfilled the criteria set forth on its Web site. Indeed, the company promised only a cursory check and disclosed that it couldn't guarantee the accuracy or extent of the results. Still, even the simplest searches convey a sense of scope and timeliness that they rarely if ever possess, said Lynn Peterson, president of the PFC Information Services Inc. research firm. Some vendors, she noted, effectively check only for current inmates of state prisons. Their reports indicate "no record" even for those on probation or serving time in a county jail.

Peterson's company specializes in more extensive screenings that involve tracing the addresses and names used by a subject over the years, then hiring researchers known as "runners" to track down public records at each location. "You can do a darn decent background check for a couple of hundred dollars," she said. A thorough screening almost always involves sending runners to the courthouses, noted John Long, chief executive of the publicly held First Advantage Corp., one of the largest background check services: "These instant searches as a general rule of thumb are a bunch of [nonsense]." Even as the rise of the Internet and inexpensive computer databases has transformed the business, verifying and interpreting the mass of available data remains the key, he said. "The Web makes people think they have a lot of information, and they don't." Long estimates that of the more than 400 background check vendors, approximately 100 are what he would consider "reputable."

The privately owned InstantPeopleCheck.com took nearly six months to develop its databases before launching its business about two years ago, according to the unsigned e-mails sent from the service. It offers more thorough and time-consuming searches that could have picked up the prior offenses of the criminals it failed to identify for $9.95, the e-mails claimed. The large, publicly held Choicepoint Inc. also defends the value of the online instant background checks it performs for fees starting at $25 or so, and a spokesman says it is possible to get a meaningful result without any gumshoe work.

Nevertheless, the boom in inexpensive online screenings is fueling a backlash among those who believe the privacy rights of workers are being compromised. No one has established widely accepted guidelines for how the information should be used, labor advocates say. And so much data is available that some, inevitably, is inaccurate and misleading. "The incompleteness usually works to the detriment of the worker," said Mike Ingrao, secretary-treasurer of the AFL-CIO's Transportation Trades Department.

Employers, for their part, are stepping up efforts to protect their companies and workforces. That was the case at Eli Lilly & Co., which started requiring criminal checks for employees of its outside vendors in the wake of the Sept. 11 terrorist attacks. A Lilly spokeswoman said the Indiana-based drugmaker uses much more sophisticated tools than the typical instant online checks. "Our general stance is always that we use the best available technology," she said. But even so, Lilly banned from its premises at least one technician who was mistaken for a relative with a criminal record. The technician got his post back eventually, and "the system is working well," the spokeswoman said.

In fact, background checks present a thicket of conflicting legal issues for employers. At the same time that new rules requiring background checks for certain jobs are proliferating, existing law already imposes some stringent requirements on how those checks can be conducted.

The longstanding Fair Credit Reporting Act, for instance, requires employers to use up-to-date information for screening job candidates. It also says the subjects must give their permission for a background review and receive copies of any records used in employment decisions. The rise of quick online checks makes those rules tougher to enforce, according to the University of Maryland's Bushway. Consequently, a job candidate might never get a chance to explain, for example, that an arrest resulted in an acquittal, he said. "In most cases, you're not going to be hired, and you're not told why."

Performing background checks can leave companies open to allegations of discrimination or defamation. Yet failing to perform background checks can lead to liability for the acts of criminals on the payroll -- so-called "negligent hiring and retention." Balancing those conflicts "puts employers squarely on the horns of a very difficult legal dilemma," said labor and employment attorney Gerald D. Skoning, a senior partner at Seyfarth Shaw in Chicago.

The risks of negligent hiring were demonstrated tragically in a recent case involving a Chicago native murdered in her California home by a carpet cleaner with a long criminal history. The murderer went to prison, and the surviving spouse of Dr. Kerry Spooner-Dean won an $11 million judgment in 2000 that put the carpet company out of business. "The verdict sends a message," said Paul D. Scott, plaintiff's attorney in the case against the company, which performed no screening. "A background check would have helped."

The lesson, however, is that even a sketchy check can reduce liability in such circumstances. As Skoning put it: "They're definitely better than doing nothing. It's a cheap insurance policy."

That reality is small consolation to Spooner-Dean's mother, Mary Spooner of Grayslake, who in the wake of her daughter's death vowed to push for wider use of criminal background checks. She quickly recognized that many businesses still were skeptical of the need for checks, or too eager to seize the cheapest option, she said. "Those $9.95ers," she lamented. "There's so many holes." After a while, Spooner, a dietician at Rush University Medical Center, grew resigned. "It became a very frustrating experience," she recalled. "I just kind of gave up on the whole thing."

-----

To see more of the Chicago Tribune, or to subscribe to the newspaper, go to http://www.chicago.tribune.com
© 2004, Chicago Tribune. Distributed by Knight Ridder/Tribune Business News. FADV, CPS, LLY,

Background Screening News

2004-04-02T15:35:00.000-08:00

TEACHERS behaving badly
Deseret News - Salt Lake City,UT,USA
State law requires prospective and license-lapsing teachers to be fingerprinted and undergo a criminal background check, either through colleges of education ...

BACKGROUND check form irks library's volunteers
San Diego Union Tribune - San Diego,CA,USA
The background check for every new county employee and volunteers was initiated and approved by the Board of Supervisors last year. ...

SCRUTINY for school volunteers
New Britain Herald - New Britain,CT,USA
It's very similar to the process you have when you hire staff. You do a background check," Binkowski said. "It's a preventative kind of approach.". ...

2004-03-03T12:28:00.000-08:00

Needless Risk - Are you conducting background searches illegally?

By Barry J. Nadell, President InfoLink Screening Services, Inc.
Loss Prevention & Security Journal, June 2003

Faced with danger, it's preferable to do something rather than nothing. Most of us would prefer to manage our fate, instead of just hoping for the best. However, when action is taken there is always a risk of inadvertently making the situation worse. It is a function of loss prevention and security personnel to protect their employer from preventable risks. However, in prevention activities there is often the associated risk of legal compliance. When prevention activities infringe upon laws to which they should be adhering, risk escalates instead of diminishing. It is a professional responsibility to ensure legal compliance always occurs.

The Dangers of Negligent Hiring

There has been a dramatic viewpoint change among those responsible for corporate security. Initially, awareness of the risks associated with the failure to do appropriate background screening was low. However, hiring or retaining dangerous employees is clearly negligent conduct. Spectacular court cases soon brought home to security professionals the legal doctrine of "negligent hiring" and its attendant risks for employers. According to the Workplace Violence Research Institute in Newport Beach, Calif., lawsuits claiming "negligent hiring" or "negligent retention" cost U.S. businesses an estimated $18 billion a year.

The courts have been particularly sensitive to cases where employees directly impact the health, safety and welfare of the public. For example, in Ward v. Trusted Health, No. 94-4297 (Suffolk Superior Court), Trusted Health Resources Inc. hired Jesse L. Rogers in 1991 as an aide in a home healthcare program run by the Visiting Nurses Association (VNA) of Boston. Trusted Health Resources never requested a criminal background check on Rogers, but such a check would have revealed six larceny-related convictions in Massachusetts. Likewise, his bogus claims of working at a state agency and attending nursing classes at Northeastern University would have been uncovered. Rogers was later convicted of stabbing to death John Ward, a quadriplegic under his care, and the victim's grandmother. The murders were apparently committed to cover up thefts from the household. Ward's parents brought suit against Trusted Health and the VNA, winning compensatory and punitive damages of $26.5 million and sending Trusted Health into bankruptcy.

Current Misconceptions

Over the last decade, awareness of the risks posed by negligent hiring and retention has grown and more companies have integrated background screening into their hiring process. As the number of companies conducting screening has grown, however, so has the number of companies that are doing so without full legal compliance. In fact, some startling misconceptions have surfaced that specifically violate the legalities of background screening, exposing companies to needless risk.

Some examples:
• A private investigator is not entitled to conduct background checks simply because he is a licensed P.I.
• An attorney is not entitled to conduct background checks simply because he is an attorney.
• A background check conducted on the basis of a legitimate business need is not justified simply because the person soliciting the report feels he has a legitimate business need for the report.
• The fact that background information is available and can be obtained does not mean that the information can be used legally and without liability.

Temptations of the Internet

In addition to the misconceptions listed, the advent of the Internet has brought new confusion and temptation. Many screening-related sites have sprung up. Some of these are tied to reputable, pre-existing background screening firms that know the law and take steps to ensure their clients' compliance with it. These firms should be quite familiar with the demands of legal compliance and pose no danger.
There are also sites that are primarily reference sites, providing links to sources of information located elsewhere on the Internet. However, those within the industry know that much of the important information typically sought in background screening, such as criminal records, does not exist in the form of a national database and therefore cannot be accessed via the Internet at all.

Most troubling are the Internet sites that seem to freely offer sensitive background information without qualification. To do so is not legal. As will later be fully explained, background searches are permitted by law only for specifically stated purposes. Even then, those seeking information under a permissible purpose must certify that purpose to the information vendor before the information can be released. Regarding these sites, there is every reason to be concerned whether one can actually obtain valuable background information and whether it is being obtained without legal compliance and, therefore, done "illegally."

Here are samples of language used by such Internet sites and in promotional e-mails:
• "Find out anything about anyone."
• "Perform a comprehensive national background search."
• "Conduct a background check on someone, all you need is their name and one of the following: present/previous address, date of birth or social security number."
• "If you've met on the Internet, consider getting a background check before you get too involved."
• However, upon closer review, various disclaimers are also found:
• "Some searches, such as credit checks and driving record searches, require written authorization from the subject of the search in order to comply with federal law."
• "The person you are looking for will not be notified that you are searching for them, therefore, we ask that you act responsibly and in accordance with the law once you receive your search results."
• "Specifically to comply with privacy laws, we do not have access, utilize, reveal or provide any confidential information, such as an individual's financial status, employment background, credit history, or medical records contained in consumer reports, the dissemination of which is strictly prohibited by the Fair Credit Reporting Act. 15 USCS 1681a."
• "This data must only be used to locate or further identify the subject and should not be used in whole or in part to determine a consumer's eligibility for credit, employment or insurance or any other purpose for which a consumer report would be obtained, except in connection with collection of a debt. This data is to be used for lead information only."

A Matter of Definition

When we compare what is promoted as available on the Internet and the disclosures that limit the availability and use of such data, there is an apparent contradiction. As seen from the disclaimers, much of the information is not immediately available or, if it is available, the provider may attempt to surreptitiously place responsibility for legal use of the information on the user and away from itself. Resolving this contradiction requires knowledge of the definitions established by law, as well as the permissible purposes for obtaining background information.

First, it must be observed that some sites may be operating beyond the boundaries required by law and there may come a time when the validity of their operations will be tested in court.

Second, "background check" is a familiar term, but not one that is defined by the applicable laws. The law most directly governing this activity is the Fair Credit Reporting Act [FCRA] of 1970, which was amended in 1997. Don't let the name mislead you--the FCRA covers far more than just consumer credit reports. Besides the FCRA, there are various state laws that do not contradict the federal law, but typically affirm or expand upon it.

It should be noted that where employers perform reference and background checks without using services offered by third parties for a fee, the FCRA generally does not apply. A quick look at the basic FCRA definitions provides considerable insight:

Consumer: An individual.

Investigative consumer report: "The term 'investigative consumer report' means a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics or mode of living is obtained through personal interviews with neighbors, friends or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information."

Common examples of investigative consumer reports are employment verifications and interviews with former employers and co-workers, where these are performed by a consumer reporting agency.

Consumer report: "The term 'consumer report' means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living that is used or expected to be used for the purpose of establishing the consumer's eligibility for [credit or insurance, employment, etc]."

A consumer report would therefore include any oral or written information from a consumer reporting agency, such as a criminal background check, credit histories, ID verification, department of motor vehicle records check, and investigative consumer report information derived from personal interviews.

Consumer reporting agency: "Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties."

Thus, a consumer reporting agency is basically any organization that supplies and charges for information on consumers. This specifically includes private investigators and companies who refer to themselves as "record search firms."
Under the FCRA, every consumer reporting agency must take appropriate measures to prevent inappropriate disclosures of information. Prospective users of information must identify themselves, certify the purposes for obtaining the information, and certify the information will not be used for any unauthorized purpose.

Consequences on Noncompliance

Compliance with the requirements of the FCRA is enforced by the Federal Trade Commission (FTC). Failure to comply with the FCRA can result in state or federal enforcement actions, as well as private lawsuits. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution.

Regarding employers specifically, failure to comply with the requirements of the FCRA can result in civil liability in the form of actual damages sustained by the applicant or employee, punitive damages (in the case of willful noncompliance with the FCRA), and imposition of costs and attorneys' fees. Additionally, it is a felony to procure a consumer report (i.e., a background check) under false pretenses. If convicted, the person who knowingly and willfully obtained the information is subject to a fine, imprisonment for up to two years, or both.

Hiring a third-party investigator provides more protection for a company than if it performs its own investigations. The FCRA provides limited legal immunity to employers who hire third-party investigators. This legal immunity applies to suits alleging defamation, invasion of privacy or negligence in connection with the investigation. There is no comparable immunity for employers who conduct their own investigations.

Needless to say, the legal risks are accentuated for a user when information is thought to have been obtained legally and when it hasn't.

How To Comply

Those who obtain consumer background information should consult their background screening agency and/or legal counsel for their specific compliance requirements. That said, the general requirements, briefly stated, are as follows:
1. Make required disclosures and obtain written consent to obtain background information.
2. Certify permissible purpose to the credit-reporting agency involved.
3. Make sure the data obtained is FCRA compliant.
4. Give notice before taking "adverse action," namely, by providing the consumer a copy of the negative report along with a statement of rights developed by the FTC and waiting a reasonable period of time for the consumer to contest the information (usually 3-5 days). Then, take adverse action in writing.

Permissible Purposes for Obtaining Background Information

The list of permissible purposes specified by Congress in the FCRA is important, because these purposes have been held by the courts to be exclusive. In other words, access to reports for a non-specified purpose, even though it may have a legitimate business purpose or seem like a good idea, is not permitted. The wording of the FCRA states, "A consumer reporting agency may furnish a consumer report under the following circumstances and no other."

Section 604 of the FCRA contains a list of the permissible purposes under law. These are:
• As permitted by order of a court or a federal grand jury subpoena. [Section 604(a)(1)]
• For any purpose if the consumer gives permission in writing. [Section 604(a)(2)]
• For the extension of credit as a result of an application from a consumer or the review or collection of a consumer's account. [Section 604(a)(3)(A)]
• For employment purposes, including hiring and promotion decisions, where the consumer has given written permission. [Sections 604(a)(3)(B) and 604(b)] (Note: Employment purposes may include hiring, termination, reassignment or promotion of an applicant or employee.)
• For the underwriting of insurance as a result of an application from a consumer. [Section 604(a)(3)(C)]
• When there is a legitimate business need in connection with a business transaction that is initiated by the consumer. [Section 604(a)(3)(F)(i)]
• To review a consumer's account to determine whether the consumer continues to meet the terms of the account. [Section 604(a)(3)(F)(ii)]
• To determine a consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status. [Section 604(a)(3)(D)]
• For use by a potential investor or servicer--or current insurer--in a valuation of, or an assessment of, the credit or repayment risks associated with an existing credit obligation. [Section 604(a)(3)(E)]
• For use by state and local officials in connection with the determination of child support payments or modifications and enforcement thereof. [Sections 604(a)(4) and 604(a)(5)]

In addition, creditors and insurers may obtain certain consumer report information for the purpose of making unsolicited offers of credit or insurance.

The following states have implemented their own laws concerning permissible purposes, many of which conform to federal law: Arizona, California, Colorado, Georgia, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New York, Texas, Virginia and Washington. Several other states have additional laws that relate to the FCRA.

In summary, the basic principle governing access to consumer reports is that actions authorized or initiated by the consumer are generally permitted, while unauthorized uses or disclosures are prohibited. Specific exceptions to the general rule have been made to accommodate public interests (alimony, licensing, court orders, etc.).

It is recommended those obtaining background information be thoroughly familiar with FCRA provisions and the permissible purposes for obtaining consumer reports, as well as how these regulations apply to their own specific circumstances. To fail in providing such policies is to incur needless legal risks. *

Barry Nadell is president of InfoLink Screening Services Inc. in Chatsworth, Calif., a nationwide provider of background screening and drug testing programs. The company provides the latest online technology to request, review and archive reports via its secure website at www.InfoLinkScreening.com or (800) 990-HIRE (4473).

2004-03-02T10:41:00.000-08:00

High unemployment spurs need for background checks
Fairfield County Business Journal, February 2004
By Jen Malcom

In today's world of rampant theft, violence, false workers' compensation claims and poor performance at the workplace, employers must protect themselves, their employees, their clients, customers and the public from potential employees who can cause them harm, said Barry Nadell, president of InfoLink Screening Services Inc., a national provider of background screening.

"The states have laws regarding negligent hiring and consequently if someone hires a criminal because they haven't screened their background and they hurt someone, the company is liable," said Nadell.

"Fraud by applicants is at a ridiculously high rate these days and is far more prevalent when the unemployment rate is high," said David Lewis, president of Operations Inc.com, in Stamford and vice president of the Southern Connecticut Chapter of SHRM (the Society for Human Resource Management).

"People when unemployed for long periods of time are more desperate and more willing to compromise some of their values, and less likely to be honest on their resumes."

There is a trend to conduct more employment checks when the economy is down. "If an employer is hiring in a down economy, they have a more difficult time determining who is truly representing themselves accurately," said Lewis. Mary Beth Rippert, managing director of Strategic Staffing L.L.C. of Shelton, said before hiring a prospective employee she checks their references and confirms dates of employment as well as asking them to rate the employee from one to 10 on various categories such as communication skills and strengths and weaknesses. She usually talks to at least three people including a coworker and boss. She conducts drug or criminal screening if requested by the client.

"I feel employment checks are necessary. If applicants say they have experience programming and they just sat next to one or if they say they were a team leader and they were just an acting one for the day, I'll find out," said Rippert. "If they lie they are disqualified."
More employers checking

A recent survey completed by the SHRM found that the number of employers reporting they conduct criminal background checks has increased by 29 percent since 1996. Eighty percent of HR professionals now say they conduct such checks and 35 percent conduct credit checks to screen potential employees. Eighty-two percent of HR professionals report their organizations investigate the background of potential employees, which is up from 66 percent in 1996.

InfoLink Screening Services Inc. "found that of those employees checked who authorized a background check in writing: eight percent had criminal convictions, three and a half percent tested positive for drugs, 37 percent have DMV issues, 23 percent have something negative on their credit report, and 17 percent had discrepancies on their reference checks," said Nadell.

As a present employer looking to evaluate and verify information that is presented in a resume or application to insure it is accurate and complete, it is also vital to look for information that wouldn't be on a resume such as prior criminal history, said Lewis. It's essential to be take a proactive approach to prevent future problems.

"Just calling a past employer today won't give you the answers you are looking for to see if the person has the character, experience and abilities to be a good worker," said Nadell. "Companies need to access all the possible information available to make good hires."

Reference checks are limited by companies not giving out information for fear of being sued, said Lewis. Background checks go deeper, they don't give performance information but they give dates of employment and educational background. It is becoming more and more common that checks come back with data that conflicts with information that comes from resumes or applications.
Components of a good check

A good background check includes "an onsite search of the courts in all counties where the individual resides, a social security check and a motor vehicle report (even if they don't drive for you)," said Nadell.

Employers must have a "permissible purpose to perform a background check or the subject may sue," warned Nadell. "For employment, a written disclosure must be authorized in advance. Before taking adverse action, the subject must be given a copy of the report with their rights as prescribed by the Federal Trade Commission (FTC) and an opportunity to dispute the information in the report."
Many times the applicants sign a release on the back of their employment application. "It's always a good idea to have an additional form signed saying this is what we're going to be checking with a space for social security number and name and signature," said Lewis. "Once the release is put in front of someone especially someone aware that the information they provided wasn't accurate they often request their application back to check their information."

Another screening tool, credit reports, should only be used when the person can affect the company financially but are a good indicator of character, said Nadell. "If someone has financial responsibility and can't handle their own finances, there may be a problem. Also, hiring someone in big debt for a low wage could be an indicator of a problem waiting to happen."

Ridgefield Bank, for example conducts a credit check, background check, and drug test for all new employees. "If we're hiring for a teller and they have bad credit that gives you a red flag, said Susie Costello, Ridgefield Bank, human resource systems. There are both federal and state laws that employers must follow while screening their employees. The Federal Fair Credit Reporting law and laws such as the Americans with Disabilities Act are the prevailing federal laws. In addition, many states have their own laws in this area including state fair credit laws, state labor codes, state civil laws and state civil rights laws, said Nadell.

In addition certain state laws also govern what you do with the information when you get the report back. In Connecticut, employers are required to keep at least two files per employee. One focuses on performance and other on qualifications. Benefits and personal info goes to another file to be held separately because no manager needs to know personal information about you in order to manage you, said Lewis.

It is most important to get a reputable service provider. The completeness of the report and ease that it gets back is key. Larger, well-established companies have great channels of info already established, said Lewis. The cost of background checks have "come way down over the years and one can obtain a good comprehensive background check for often less than $15 to $50 depending on the services requested," said Nadell.

2004-03-01T12:04:00.000-08:00

Health Providers at Risk Without "Safe Hiring" Practices
Background Screening Uncovers Applicants' Criminal Backgrounds
by Barry J. Nadell

Health care providers have reason to practice safe hiring according to the results of study released today which shows that 11.5% of employment applicants (better than one in ten) carry criminal records, whether felony or misdemeanor. The study was conducted internally by InfoLink Screening Services, Inc., a nationwide screening company and provider of services to many health care organizations. Other than those offering in-home health care, health providers are not required by law to conduct criminal searches. However, the results of the study validate the concerns of organizations which conduct such screening anyway.

The security measures of health care providers are a consumer issue, states Barry Nadell, President and co-founder of InfoLink Screening Services. If you are a patient or related to one, you want to feel comfortable with the people delivering that care. More and more providers are taking advantage of background screening to ensure that the environment they offer to both their patients and staff is a secure one.

Major findings of the study reveal that of those with criminal records, auto-related crimes were the largest category of offence at 34.8%, followed by theft/fraud offences at 20.8%. Crimes of violence or threatened violence accounted for 15.4% of the crimes uncovered. Another 14.9% were caused by alcohol and narcotics offenses. The remaining 14.5%, classified miscellaneous, included crimes such as prostitution, violation of probation, contempt of court, criminal trespass and others.

Within the largest category of automotive-related crimes, key sub-categories included DUIs accounting for 42.3% of offenses, unlicensed drivers for 19.5% and driving with a suspended license for 18.1%.

The theft/fraud category of convictions was split between theft convictions of 78.3% (including theft, grand theft, petty theft, shoplifting, burglary) and fraud convictions of 21.7% (including forgery, welfare fraud, passing worthless checks).

Convictions in the violence/threats category consisted mainly of battery (44.1%) or public disturbance (35.3%); the latter category including arson, fighting in public, resisting arrest, disturbing the peace and creating a public nuisance.

InfoLink provides background screening to over 1,200 health care facilities nationwide. The study addressed 1,920 applications from fifteen randomly selected California providers. Each organization had processed over 100 applicants dating from as early as April, 1999, to the present. The study addressed searches of criminal records only and did not include other types of screening such as DMV records, Social Security identity checks, credit checks, or checks of past employment and education which can also be run by prospective employers. The report is one in a series conducted by InfoLink to identify and address the employment screening requirements of specific industries it serves.

Employers may not deny employment to an applicant strictly due to a past conviction or convictions, unless their profession is one where laws prohibit hiring those with criminal backgrounds, or unless the employer can show the conviction relates directly to the position applied for. However, many applicants disqualify themselves by attempting to conceal past convictions which are nevertheless uncovered during background screening by a professional consumer reporting agency.

2004-02-27T11:53:00.000-08:00

Screening = Long-Term Aid to Temporary Hiring
By Jim Calahan

"I'd rather not fill a position than send someone who is wrong for it," states Joe Cummings of Royal Staffing, in Westlake Village, CA, "because that person represents you in the client's office." Joe is a fourteen-year veteran of the staffing industry and one of sixteen full-time employees in two offices the 33 year-old firm maintains. Joe is the screening "guru" for the firm which handles the whole gamut of employee placement from clerical employees to executive search and various points in-between, including financial and IT specialists.

"We began screening around 1993," Joe recalls, "when one of our larger clients began requesting criminal and DMV [Department of Motor Vehicle] searches on their placements." Screening continues to be primarily client-driven at the company to this day. "The quals for placing someone in an executive assistant position, for example, can vary quite a bit. Some firms request that background checks be done and some don't," notes Mr. Cummings. Another example is credit checks. "Some clients value them and others do not."

"Hiring" a screening firm to provide Royal with additional types of background checks was fairly simple. Royal has been using InfoLink Screening Services, located in Chatsworth, CA, since 1993. "Barry Nadell, the President of InfoLink, was acquainted with Mrs. Wolff, our Founder and President, through PIHRA [Professionals in Human Resources Assn.]," Joe Cummings recalls. "When he first came out to our offices it was very relaxed; there was no sales pitch. Barry answered our legal concerns very clearly. We updated our forms with InfoLink's suggested language and we have sometimes called Barry to get 'Do's and Don'ts about certain screening procedures. For example, we had some misgivings about collecting credit information on individuals, but Barry indicated it was perfectly all right to do so as long as our clients were consistent in requiring credit checks for where they could affect our client financially. We always want to make sure our procedures are legally correct in order to protect ourselves and our clients from needless lawsuits."

Although concern for correct legal procedure may have initiated the relationship between Royal and InfoLink, other factors have maintained the relationship over time. "InfoLink offers a complete program of background screening including drug-testing. Their rates are competitive and the quality of their research is very good," states Joe Cummings. "Turnaround time is crucial for us. To maximize billings, we need to have our temps out working. Also, while waiting on screening results you risk a temporary being picked up on someone else's assignment. InfoLink has been able to accommodate us on the occasional rush cycle."

Other contributions by InfoLink have included maintaining separate billing records for the two Royal Staffing offices as well as the development of web-based services. Screening requisitions can now be initiated and retrieved online through InfoLink's secure Web site as well as by fax, the method traditionally used by Royal Staffing.

After implementing the initial screening program with InfoLink, Royal staffers soon saw some surprising results. "One thing that always surprises me is how some of the applicants react or don't react to the screening procedure. I am very direct with them when screening is involved in their placement. I say, 'We are going to do a background check on you that includes a drug test, criminal history and credit check. Will you pass such a check?' They may say 'yes', but sometimes the results come back showing a lien, judgment, or conviction and I want to say, 'Did you forget about this?' I think for some of them, if not working now, they are willing to take their chances. However, for me it becomes a credibility issue after that."

While screening has become a part of the staffing business, it hasn't changed essential skills, but has enhanced them. "I am very experienced at interviewing," states Joe Cummings, "and very straightforward with my applicants. I tell them, 'I can ruin my reputation all on my own without assistance. I can help you get work, but you have to help me by being honest."
"I think a good interviewer is very skilled at detecting deception," he continues, "but screening still adds a lot. First, some people are just very expert at deception and they can slip by. Second, you have to make sure that you are asking the right questions; sometimes you can sense something is wrong without being able to exactly put your finger on it. Another major factor is the economy right now. With employment so high, most of the good ones are already working, so you may have to do ten or fifteen interviews to get two or three prospects."

The advancement of screening affects staffing in other ways, too. "When we take on a new employer," Joe notes, "it is not unusual for them to ask about our screening capabilities. Employers certainly realize that a person dressed up for an interview is not always what they seem to be. Also, I will suggest to them that when temporary staff is taken on with a potential of permanent hire, they should do any desired screening up front. This avoids issues arising once the person is already on the job."
Joe's experience with screening over the last eight years encourages him to offer several words of advice. "I think you have to be very careful to check an applicant's references and ensure they can do what they say they can do. It's very easy for someone to get a piece of company letterhead and write themselves a letter of recommendation with a forged signature. Some have even forged diplomas! I say, if you ever have an uncertain feeling about an applicant, or the references don't seem to add up, you cannot hesitate to do a screening on them."

"The other thing is to know the law," he adds. "We have never been sued by an applicant and I think this derives from the fact that we have been in legal compliance through InfoLink from the very beginning and we have maintained that compliance to the present day. If the applicant sees that you are fully knowledgeable of the law, then they are unlikely to attempt legal action. If they say 'That's discrimination!' I can immediately explain the situation to them and they'll recognize that it isn't."

2004-02-26T11:52:00.000-08:00

FTC Flexes Muscles on "Consumer Rights" Affecting All Employers
by Barry J. Nadell

Companies who background screen job applicants or employees (obtaining public records, references, etc. on job applicants or current employees) must be aware of the amended Fair Credit Reporting Act! Penalties on those who do not comply include actual damages, punitive damages, costs, and attorneys fees. In addition, civil and criminal penalties may apply. (15 U.S.C. 1681n, 1681o, 1681s).

The Consumer Credit Reporting Reform Act of 1996, (CCRRA) became effective on September 30, 1997. The CCRRA affects all employers by amending the Fair Credit Reporting Act (FCRA), 15 U.S.C. 600-624, which governs the use of consumer reports for employment purposes. Do not be fooled and think that this new law only deals with credit issues. The law makes serious changes in the procedures every employer must use to screen applicants or investigate current employees.

Definitions of key terms. 603:

• A consumer report is a report of any information provided by a consumer reporting agency bearing on a consumers credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for employment purposes.

Any background report from a consumer reporting agency offering public record information or where the information is obtained through personal interviews provides insight into the consumers character or personal characteristics. Unless an employer is not obtaining information from a consumer reporting agency, there are very few exceptions to what the CCRRA considers a consumer report. The following would be considered consumer reports: criminal history report, credit history, motor vehicle report, social security identification, education, license verification, military record verification, or workers compensation history.

Credit reports fall under the definition of consumer reports. When credit reports are sought for employment purposes, the user of the report must adhere to additional requirements outlined in the CCRRA and in state law.

• The term "investigative consumer report" means a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends or associates.
Investigative consumer reports are a form of a consumer report. The difference is the information in the report is obtained through talking to people. When an investigative consumer report is used, the user of the report must conform to additional requirements not required if requesting a consumer report.

Employers seeking an investigative consumer report must clearly and accurately disclose to the consumer that an investigative consumer report including information as to his character, general reputation, personal characteristics and mode of living, whichever are applicable, may be made. 606(a)(1). The disclosure must also indicate that the information may be obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he/she is acquainted or who may have knowledge concerning any such items of information. 603(3). The disclosure must be provided in writing not later than three days after the date on which the report was first requested. 606(a)(1)(A). The disclosure must also include a statement informing the consumer of their right to request additional disclosures of the nature and scope of the investigation. 606(a)(1)(B). The language required for an investigative consumer report need not be on the disclosure for a consumer report or consumer credit report. Finally, the employer must include the summary of consumer rights. 609(c).

• A consumer reporting agency is an organization which, for monetary fees, engages in whole or in part in providing information on consumers for the purpose of furnishing consumer reports to third parties.

Consumer reporting agencies are defined very broadly. They include any company who obtains information on a consumer and charges a fee to the user of the report for the information. They also include companies who charge fees for services rendered, and in order to provide the service, obtain background information on a consumer that may or may not be given directly to the employer. Included in the CCRRAs definition of a consumer reporting agency is a public records provider, licensed private investigator, detective agency, on-line database company, or the like. In addition, a government agency like a state Department of Motor Vehicles, who sells public information is a consumer reporting agency.

• Employment purposes are when reports are used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.
• Adverse action is a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.
• The term "consumer" means an individual. Therefore, a background check of an organization does not fall into the purview of the FCRA.

Certification: Before requesting a report an employer must sign and have on file a written certification form with the consumer reporting agency they use. The certification form requires the employer (user of the report) to certify as to the permissible purpose intended and that they will comply with proper disclosure and adverse action requirements. Finally, the employer must certify that the information from the consumer report will not be used in violation of any applicable Federal or state equal employment opportunity law or regulation. 604(b).

Notification: Prior to an employer requesting any consumer report or an investigative consumer report the employer must make a disclosure to the consumer. This notification is required in all instances except for an investigative consumer report (talking to people) where the consumer did not initiate the cause for the report. 604(b)(2)(B).

The notification must be a clear and conspicuous written disclosure that consists solely of the disclosure, and must be provided prior to requesting any consumer report. The disclosure must include the name, address, and toll-free telephone number of the consumer reporting agency. 615(a)(2)(A). A separate disclosure designed for credit reports must be used if the employer seeks a credit report. Federal law specifically states the disclosure must indicate that a consumer report may be obtained for employment purposes. 604(b)(1), 606(a)(1).

Prior to the CCRRA, the only requirement imposed upon the employer was to notify the consumer. Where an employer wishes to obtain public records or obtain an investigative report, they must now obtain authorization from the employee to do the background check.

The requirement for the consumer to authorize the disclosure with their signature places a substantial burden on employers. What is an employers responsibility and authority should a consumer refuse to authorize the background check? In this regard, a background screening can be analogous to drug screening. There is ample authority that if an applicant refuses to authorize a drug screen, the employer can terminate the employment application process and the employer is under no obligation to hire the consumer. Therefore, any applicant who refuses to authorize the background check immediately disqualifies himself or herself from the employment process. Likewise, if an employee refuses to authorize a background screen required by the employer prior to a potential promotion or reassignment, the employee automatically removes his or her candidacy.

Unfortunately, the employers rights are not clear when the employer is in the process of an investigation and, due to the nature of the investigation, requires an employee background search. Where employees have signed only an employment application and refuse to sign a disclosure form authorizing a background check, employers may not be able to take any adverse action against the non-complying employee. If the employee however, previously agreed in writing to provide any support requested by the employer in an investigation and had agreed to all remedies available to the employer including termination if the employee refuses to help in the background investigation, the employer may be able to terminate the employee.

Where an investigative consumer report is to be prepared on a current employee, and to be used for employment purposes for which a consumer has not specifically applied, section 606(a)(2) provides that the notice otherwise required by section 606(a)(1) need not be sent. This is the only exception to disclosure of the background check. For example, if an employer hires an outside agency to perform an investigation, and such investigation is on a current employee who has not applied for a promotion or reassignment, and the agency only obtains information through personal interviews with co-workers, disclosure is not required.

Information within the report: Information must be up to date. Records are considered up to date if they are the current public record status of the item at the time the report is reported. 613(2). Information from public records (i.e. arrest, conviction, judgment, etc.) shall not be furnished unless the consumer reporting agency verifies the accuracy of the information during the 30 day period (which ended on the date on which the report is furnished) that the source of the information is the best possible. 606(d)(4)(A). Information obtained from a CD-ROM or on-line service generally provides only hearing dates and may not indicate if the consumer was convicted, or whether the conviction was expunged or dismissed. Therefore, provisions in the CCRRA which require the reporting of timely information indicate that employers must be very careful and only use agencies which provide direct research at the Superior or Municipal Court (hand searches). Anything less than a hand search will not qualify due to timeliness and/or accuracy.

The most accurate and up to date criminal information available resides in the physical records of each counties’ Superior and Municipal Courts. On-Line access to these records by Consumer Reporting Agencies is not available. Some states allow on-line access to records through their state repository; however, records are generally not up to date and some are up to a year old.

In order to offer records on-line some companies transcribe court microfiche records. Companies using these services experience very high error rates. In addition, microfiche records only offer hearing or filing dates. These dates provide arrest information and the consumer may never have been convicted. If sought pre-offer, knowledge of this data is unlawful. Where a consumer had been convicted, microfiche data does not reveal if the case has been expunged or dismissed. Finally, due to the time it takes to input this information into a computer, it is not timely and up to date, a new requirement under provisions of the CCRRA.

Time Limit on Reporting Information: Information provided in reports is generally limited to seven years (ten years for bankruptcies). This limit is based upon the type of report and may have an exception for state laws in existence prior to September 30, 1996, if there is no conflict with California’s Investigative Consumer Reporting Agencies Act (ICRAA). Suits, judgments, and paid liens are reportable for seven years for both the CCRRA and in California. The ICRAA allows unsatisfied judgments to be reported for ten years while the CCRRA has no time limit as the section only addresses paid liens. 605(a)(3), 1786.16. The CCRRA limits the reporting of records of arrest, indictment, or conviction of a crime to only seven years from the date of the disposition, release, or parole. Under the ICRAA, there was an exception to this time period based on an income of $30,000. 1786.16(b)(2). This exception for California employers will no longer be applicable.

In order to compute the reporting time period for a crime, the reporting agency must analyze whether the conviction of the crime includes a sentence of confinement. If the consumer was convicted of a crime, but the sentence does not include confinement, the reporting period of seven years is controlled by the date of the disposition.

For example, a report provided on September 1, 1997, may not include a crime where the date of the disposition was before August 31, 1990. However, if the consumer was imprisoned, the date of release or placement on parole controls the reportable time frame and the crime may be reported until seven years after parole or confinement is terminated. 605(a)(5). For example, if the consumer was released from confinement on January 15, 1993, and the disposition for the crime was on June 15, 1988, the crime could be reported as the release date is within the normal reportable period of seven years. Information indicating a date, which may be found later from another source like newspaper or interview, does not serve to extend the reporting period. Only the date of disposition, release or parole determines a reporting period. Employers should review their employment application, paying close attention to language that limits the time period an applicant should report a conviction for a crime.

Federal law exempts the time limit on credit reports if the employee earns or is expected to earn $75,000 per year. However, at least one credit reporting agency has advised our firm that they will not produce an extended credit report based on the exceptions in the CCRRA. The information will only extend back seven years (ten for bankruptcies).

Credit Reports: Employers, when seeking a credit report for employment, must obtain a report that has been designed only for employment as the permissible purpose. This type of report is different than one obtained for the purpose of borrowing money. Credit reports which are designed specifically for employment purposes provide everything a normal credit report provides including bankruptcy, liens, judgments, past dues, collection accounts, etc. However, these reports omit date of birth, account numbers, and do not place an inquiry that a lender may see if the applicant applies for credit.

The California Consumer Credit Reporting Agencies Act requires employers who seek a credit report to place a box on the disclosure form that the consumer can check if he or she wants a copy of the credit report. If the box is checked, the consumer must receive a copy of the report at no charge along with their rights concurrently with the employer who requested the credit report. 1785.20.5.

Employers should exercise caution when requesting credit reports on consumers. The August 1997, BNAs Policy and Practice Series, published by the Bureau of National Affairs, Inc., indicates employers should be able to establish a business necessity for using credit checks to avoid the risk of being sued for a Title VII violation, and he or she should inform applicants if hiring is contingent on the results of the checks. PM:201:3416, pg. 20. An employer should only seek credit information if the job description would place the consumer in a position which can potentially affect the company financially (i.e. employees handling cash, in the accounting department, or handling company credit cards or credit card transactions).

Adverse Action Requirements: Taking adverse action is now a two step process. Prior to actually taking adverse action, an employer must provide a copy of the report and a copy of the consumers rights as indicated by the FTC to the consumer. The CCRRA does not place a time period between the time of providing a copy of the report, including the consumers rights notice and the time the employer may advise the consumer of the adverse action taken. Notwithstanding, the employer must perform these functions in the specified order. Official commentary indicates that the employer must wait reasonable time prior to actually denying employment or taking other adverse action.

Once the employer has properly provided a copy of the report and the consumers rights, the actual adverse action must be disclosed with specific language. 615(a). This disclosure must provide (1) oral, written, or electronic notice of the adverse action to the consumer, (2) the name, address, and telephone number of the consumer reporting agency (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis) that furnished the report to the person, (3) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken, (4) a statement of the right of the consumer to obtain a free copy of a consumer report on the consumer from the consumer reporting agency, (5) notice of the sixty day period for obtaining such a copy, and (6) notice of the consumers right to dispute the accuracy or completeness of any information in a consumer report furnished by the consumer reporting agency.

The person who procures or causes to be prepared an investigative consumer report, must upon the written request made by the consumer within a reasonable period of time after the initial disclosure, make a complete disclosure of the nature and scope of the investigation that is requested. 606(b). This disclosure must be in a written statement that is mailed, or otherwise delivered, to the consumer no later than five days after the date on which the request was received from the consumer, or the report was first requested, whichever is later in time. 606(b).

Summary: Job applicants and employees are quick to seek legal remedies should their consumers rights be violated. Failure, ignorance or noncompliance on the part of an employer or the consumer reporting agency to comply with the provisions of the Consumer Credit Reporting Reform Act of 1996 will be costly. Employers must seek and use a competent and detail oriented consumer reporting agency that understands this new law and complies with all of the acts provisions.

This enclosed article is not intended to provide legal advice regarding the Consumer Credit Reporting Reform Act of 1996, the Fair Credit Reporting Act, or state laws. This article represents the authors interpretation of the changes mandated by the CCRRA. Prior to making any changes in your screening of job applicants or current employees, please consult your legal counsel for verification and more detailed information regarding the CCRRA’s impact on your company.

2004-01-24T15:47:00.000-08:00

How to Avoid the Employee From Hell - Legally!
by Barry J. Nadell

The "employee from hell" is easy to identify after the fact. An Oakland civil jury awarded over $11 million to a woman’s husband after she was murdered by a man who came to clean their carpets. Under the legal doctrine of negligent hiring Americas Best Carpet Care was ordered to pay over $9 million of the award despite their defense that the perpetrator was an independent contractor and not an employee. This is a hellish scenario for any human resources professional!

As President and co-founder of InfoLink Screening Services, Inc., I have a front row seat on the trends shaping Americas hiring practices. On the one hand, I see the Internet progress we have made; increasing the speed and convenience of screening services, while lowering the cost. On the other hand, I see workplace trends that are making hiring more difficult and the need for screening more acute than ever. “To screen or not to screen?” is a crucial question affecting several areas of your business.

HIRING:

The current extremely low unemployment rate makes finding qualified employees more difficult than usual and may tempt employers to speed hiring decisions with shortcuts. When someone perceived as the right applicant comes along, you may want to act quickly before someone else hires them, or you may want to avoid alienating the prospect with the disclosures and possible delays of a thorough screening process.

As an employer myself I believe its a top priority to ascertain an applicants honesty in presenting himself, or herself. The major purpose of screening is to verify that the information submitted by the applicant is indeed a fair and correct history. Sometimes the person who seems too good to be true is exactly that! A survey published by the Society of Human Resource Management in 1998 gave the following results for resumes and job applications where falsification had been detected:
• Length of employment 53%
• Past salaries 51%
• Criminal records 45%
• Former job titles 44%
• Former employers 35%
• Driving records 33%
• Degrees 30%
• Credit 24%
• Schools attended 24%
• Social security number 14%

It still amazes me when InfoLink, as an employer, finds the perfect person for a position only to discover through our own screening process that the person was not all they seemed to be. How could someone applying for a position at a screening company attempt to materially misrepresent himself or herself, or fail to disclose vital information requested on the application? Yet, it continues to happen. One such applicant was found to have a current arrest warrant outstanding for a drug violation! Another had a serious misdemeanor conviction which had not been disclosed.

If these sorts of incidents can happen to us in the screening industry, then I am confident they can happen to you as well. Remember that you are not only assessing the possible contributions of an applicant, but their potential employee costs in terms of low morale, lateness, absenteeism, accidents, insurance claims and turnover as well as possible theft, violence or lawsuits.

SECURITY:

In the past, sensitive positions in security or law enforcement, finance and health care were most often professionally screened. However, current social trends such as drug abuse and workplace violence have shown a need for broader screening processes. Department of Labor statistics show, surprisingly, that 73% of all current drug users age 18 or older are employed, with over 80% employed full-time. Businesses without a drug-screening program are naturally more likely to hire such individuals and to suffer the hidden costs associated with them. A U. S. Postal Service study indicated that employees who tested positive on their pre-employment drug test were 77% more likely to be discharged within the first three years of employment and were absent from work 66% more often than those that tested negative.

As previously noted, jobs with access to customers homes are particularly susceptible to abuse by unethical or criminal employees and can create huge legal liabilities. However, screening can help with lesser problems as well. One InfoLink subscriber reports occasional instances when its employees have been accused of theft, sometimes as a distraction by the real thief. In addressing such claims, the employer finds it worthwhile to disclose that its employees have undergone extensive background screening a much more thorough check than is given to the typical domestic worker!

LEGAL:

An overlooked, but a most important reason for screening is lawsuits. Corporations are increasingly held legally responsible for the types of individuals they hire, especially if those individuals engage in criminal activity.

Examples of a dire nature are, unfortunately, not difficult to find. PDQuick recently made headlines in Los Angeles when one of its home delivery drivers; two weeks on the job, allegedly committed sexual assault on a San Gabriel woman as well as attacking two other women. PDQuick had failed to check the criminal history of the employee who, unknown to them, was on parole for a violent conviction.

In another recent instance, a home health care provider in Massachusetts named Trusted Health Resources unknowingly hired someone with a criminal record as a home attendant. That individual subsequently murdered a young paraplegic man placed under his care as well as the patients grandmother, apparently to cover up a theft. When the employee was later tried and convicted of the crime, the victims family sued the company on the basis of negligent hiring and obtained damages of $26.5 million dollars. Not surprisingly, Trusted Health is no longer in business.

In addition to these high-profile cases, there is also danger from lawsuits incurred due to noncompliance with Federal and state laws governing background check procedures. Non-compliance with these laws is fairly common. Even among companies that have previously used a background screening service, about 75% of the employers I see have language (or are missing language) in their documents that violates either Federal or state law. When choosing a background screening company to hire, I often recommend analyzing the documentation provided by that company for legal compliance. If the documentation violates state or FCRA law, its a serious problem. How can one trust a company’s reporting procedures when their documentation and procedures do not even conform to the applicable laws of their industry?

SCREENING PITFALLS:

While the above examples show the need for increased scrutiny, the difficulty in detecting unflattering backgrounds has also increased:
• When employers conduct reference checks, they are increasingly met with a limited or nonexistent response as legal concerns make former employers reluctant to provide anything more than a confirmation of name, job title and dates of employment.
• Workers with imperfect backgrounds often gravitate towards working as temps, either out of necessity, or as a means of masking their histories. Employers hiring a temporary worker through an agency may not feel the need to conduct the normal background check, but the company is nevertheless considered a co-employer for liability purposes and is liable along with the agency.

THE SOLUTION:

The way to avoid hiring the employee from hell for most companies is a background check by a professional screening company which complies with the applicable legal procedures. These checks typically include criminal history search, motor vehicle report information and a social security number trace. The importance of criminal checks is self-evident, but the others may not be so clear. A motor vehicle report discloses convictions for DUI (Driving Under the Influence), drug possession and failures to appear. In addition, current arrest warrants may be found. Social Security checks help identify false numbers and identities used by an applicant to evade screening of their own personal history.
Other frequently performed checks include:

• References
• Verification of education, licenses, or military service records.
• Credit checks or searches for liens and judgments which help indicate character
• Worker compensation filings which can identify past employers not revealed on an application

Turnaround times for these checks range from the immediate (with online access to credit and other up-to-date databases) to generally two or three working days, depending on the type and extent of search desired. Fees are surprisingly low and can range from $3, up to $50-80 depending on several factors: the package of searches required for a particular position, the number of references contacted and the number of counties searched for criminal activity. It is important for a business to have a screening program appropriate to the type of personnel that they are hiring and to design searches based upon job requirements. As an example, you should not perform a credit check on someone who couldn’t affect you financially, but should always require one for someone in accounting, or who handles money.

If an employer relies on any third party such as a private investigator, public record provider or professional screening service (all considered consumer reporting agencies under Federal law) for references or a more involved background screening, there are a number of additional requirements that must be met. These include legal disclosure and adverse action procedures that must be followed as required by both the Fair Credit Reporting Act and applicable state laws. Because of the complexity of both Federal and state laws, a professional service should be engaged to provide the appropriate documents and expertise to set up such a program. An effective one shields the company from needless lawsuits and promotes morale by screening out the employee from hell.