The Safe Hiring Blog

New Study on Impact of Past Criminal Record on New Employment Creates More Questions than it Answers

A new study just released by researchers from Carnegie Mellon University has attempted to devise a model to quantify the relevance of a criminal record for employment on the basis that the importance of a past criminal record recedes over time when a person is not re-arrested. The study looks to develop a methodology to measure how much time must pass before an applicant with a criminal record is no greater risk than an applicant without a criminal record. (Blumstein, Nakamura, “Redemption in the Presence of Widespread Criminal Background Checks,” Criminology, Volume 47, Number 2 (2009))

The study, based upon limited data just from the state of New York, found that with time, a person with a criminal record was no greater threat than persons without a criminal record. It suggested that depending upon the offenses included in the study and the age at which the offenses were committed, that after approximately 4½ to 8 years without further arrests, an offender had a minimal risk of re-offending. Of course, the more violent the offense, the longer the time would be required before a person could be considered “redeemed.” Serious crimes such as murder, rape, or child molestation were not part of this particular study, but presumably more serious crimes would have a different result.

Although there is a temptation for the press to take “sound bites” from the findings, it is abundantly clear even from the authors of the study themselves that this is only a beginning. The authors were clear that much more study was needed and that there are substantial issues still to be addressed. The authors’ characterization that the study represents a “significant step forward in an area where so little is known empirically” is well-taken.

The study does not have nearly enough data to reach conclusions from which policy recommendations can be effectively made, has not been reviewed critically by other professionals, and most importantly has a number of drawbacks that can affect its reliability. Many of these limitations were acknowledged by the authors.  There are also unstated assumptions in the study that would certainly skew any results.

For a more in-depth analysis of why this study cannot be the basis to make policy changes, see a more complete analysis by ESR at: http://www.esrcheck.com/Blumstein-and-Nakamura-study-on-redemption-in-Criminology.php

 

Hawaii Latest State to Put Limits on Use of Credit Reports

Over the Governor’s veto, the Hawaiian legislature passed a new law effective July 1, 2009 that put limits on the use of employment credit history or credit reports unless it “directly related to a bona fide occupations qualification,” or falls under another exception.

The bill amends the Hawaiian Fair Employment Practices Act by making it an unlawful discriminatory practice for any employer to refuse to hire or employ, continue employment or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification. Hawaii Revised Statues Sec. 378-2(8).

The new law also indicates that in terms of hiring in the first place, the employer can only inquire into the credit history or credit report on a prospective employee only after there has been a conditional job offer, and only if the information is directly related to a bona fide occupational qualification.

The law makes exceptions for employers that are expressly permitted to inquire into credit history or a credit report by federal or state law, financial institutions that are insured by a federal agency or to managerial or supervisory employees. The law sets out a specific definition of what constitutes a “Managerial” or “Supervisory” employee.

The Governor’s strong veto message (http://www.capitol.hawaii.gov/session2009/Bills/GM813_.pdf ) argued that employers should not be subject to, “another restriction on employers that could impact their ability to protect the safety and financial security of their workplaces.” The Governor indicated that credit reports can have value in particular situations and that Congress has regulated the use of credit reports in the Fair Credit Reporting Act (FCRA).

For a copy and history of the new law, see: http://www.capitol.hawaii.gov/session2009/lists/measure_indiv.aspx?billtype=HB&billnumber=31

It should be noted that even without the new law, an employer that obtains a credit report for employment does NOT obtain a credit score or FICO number. A credit score is not part of an employment credit report since it is not a valid predictor of job performance. However, as noted in an article in USA Today where ESR President Lester Rosen was quoted, credit reports have been strongly criticized for preventing some consumers from obtaining employment. http://www.usatoday.com/news/washington/2009-02-12-creditcheckinside_N.htm

The California legislature, in fact, passed a law in 2008 that would have severely restricted employment credit reports, but it was vetoed by the Governor and did not become law. The new Hawaii law is similar to a restriction passed in the State of Washington in 2007, that required a credit report to be substantially job-related and for the employer's reasons for the use of such information to be disclosed to the consumer in writing. http://www.esrcheck.com/newsletter/archives/June_2007.php#T2

It is likely that more states will be reviewing the use of credit reports and employment in the future.

A Tale of Two References-One Makes You Liable for Damages and the Other Does Not

In a 2008 federal appeals case, two past medical employers gave past employment information for the same anesthesiologist. After the anesthesiologist, Dr. Robert Berry, moved on to yet another hospital, he botched a routine 15 minute procedure, leaving a patient in a permanent vegetative state due to Berry’s own addiction to drugs.

The new hospital and its insurance company settled with the victim and in turn sued the previous two medical organizations for misrepresentations in the past employment information given to the new hospital. The allegation was based upon misrepresentations since the new hospital claimed it hired Berry because the defendants did not give accurate information by withholding information about misconduct and drug use.

The first defendant was a medical group that was fully aware that Berry had a drug abuse issue. After giving Berry a second chance, Berry continued to misuse drugs. Berry was terminated for that reason.

 Against that backdrop, when asked for a recommendation by the new hospital, members of the medical group made statements suggesting Berry was an excellent clinician, would be an asset to any anesthesia service and that he was recommended highly as an anesthesiologist.

 The second medical provider was a hospital where Berry had practiced. Instead of saying anything positive or negative, the hospital simply provided dates of employment and occupation. However, the hospital also claimed the reason it did not go into detail was that “there was a large volume of inquiries.” Even though the hospital gave in-depth recommendations to 13 other physicians, it appeared that the hospital did not want to say anything about Dr. Berry.

 The first hospital failed to disclose that Berry had on-duty drug use, and that his undocumented and suspicious withdrawal of Demerol had “violated the standard of care,” or provide other negative information.

 In the decision, the appeals court had no difficulty finding that the medical group was clearly liable, under the theory that once a party volunteers information, it has a duty of care to insure the information is correct. Otherwise, it amounts to a misrepresentation by material omission. The court clarified that a party does not incur liability every time it casually makes an incorrect statement. However, the court noted that:

 “But if an employer makes a misleading statement in a referral letter about the performance of its former employees, the former employer may be liable for its statements if the facts and circumstances warrant. Here, defendants (medical group) were recommending an anesthesiologist, who had the lives of patients in his hands every day. Policy considerations dictate that the defendants had a duty to avoid misrepresentations in their referral letters if they mislead plaintiffs into thinking that Dr. Berry was an “excellent” anesthesiologist, where they had information that he was a drug addict.”

 The situation with the first hospital, however, was more complicated. The first hospital knew that Berry was a potential danger, but yet chose to say nothing, hiding behind a claim that they were too busy to provide more details.

 The Court noted that it found no Louisiana case, or cases outside of Louisiana, that imposed a requirement that a past employer reveal negative past information, absent a situation where the past employer made some sort of affirmative misrepresentation. In other words, the first hospital did not have a legal duty to voluntarily step up and give negative information, as long as it limited its report to just factual employment data such as dates and job title.

 The court noted that,

 “And although the (first hospital) might have had an ethical obligation to disclose their knowledge of Dr. Berry’s drug problems, they were also rightly concerned about a possible defamation claim if they communicated negative information about Dr. Berry.”

 The Court noted that if such an obligation were imposed upon employers, there would not only be privacy concerns, but it would create a burden if employers had to investigate each time if negative matters about a past employee was the type that had to be disclosed. The bottom line: if an employer limits itself to just dates of employment and job title, it has no obligation to warn of future dangerousness, provided the employer did not falsely mislead the new employer.

 That is why so many employers choose to not say anything either way. However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Some employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 That is why so many employers choose to not say anything either way. A practice has developed essentially that if you do not have something good to say, then don't say anything at all. 

However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 Just documenting the fact that an effort was made will demonstrate due diligence. Verification of dates of employment and job titles are also critical because an employer must be concerned about unexplained gaps in the employment history.  Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.

 It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.

 The case is Kadlec Medical vs. Lakeview, 527 F.3d 412 (5th Cir. 2008)

For a copy of the case, contact Jared Callahan at jcallahan@esrcheck.com or by phone at 415-898-0044.

Standards for Searching Records at Federal Courts

The typical search fee is $26.00 per item (one party name or case number). Copy fee is $.50 per page. Certification fee is $9.00 per document; double for exemplification, if available. Most courts require prepayment. Mail requests should enclose a SASE unless otherwise noted. Before releasing records, most courts require prepayment.

District courts index by defendant and plaintiff and by case number. Bankruptcy courts usually index by debtor and case number. While most courts now have their indexes on computer, many may still maintain index card files as well. Courts will archive closed case files at different times.

There are numerous public access programs available to online subscribers. Search the U.S. Party/Case Index to find party names and case numbers among all courts. Individual case data is provided on PACER. A search of CM/ECF provides copies of cases filed electronically. For details about PACER, the US Party/Case Index, and CM/ECF see the Appendix or go to http://pacer.psc.uscourts.gov or call 800-676-6856.

� excerpt from The Sourcebook to Public Record Information

BRB Publications Launches New Web Page www.verifyprolicense.com Providing Access to State Licensing Boards

BRB Publications annouced today a new website that enables the public to verify individuals and businesses required to be licensed or have a certification or registration.

This free, new resource enables a researcher to check the representations people make to the public in day-to-day personal or business life. Users of www.verifyprolicense.com can choose an occupation or business category, by state, to find the direct address, phone number, and web page of the licensing or certification board. The resulting screen also provides a hot link to a License Validator to verify the license, permit, and registration information for individuals and or businesses. Another valuable feature of the search is that it often indicates when disciplinary action has been taken against an individual or business. This site is updated weekly and includes over 8,000 occupations with over 4,500 "name searchable" links providing immediate results.

According to BRB Publication’s CEO Michael Sankey, "Professional occupational licensing and non-voluntary certifications and registrations are generally a matter of public record, intended to protect the public from fraud and the misrepresentations of qualifications. It is simply a smart business practice to check on those with whom you deal, particularly if strangers come into a home, or if money and property are involved."

Also, the new website is dedicated to educating the public about The Sue Weaver C.A.U.S.E. (Consumer Awareness of Unsafe Service Employment).

About the Sue Weaver C.A.U.S.E.
On August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender. Ms. Weaver’s attacker was hired through a major department store to do service work in her home. In memory of Sue Weaver, C.A.U.S.E. was founded in 2004 as a non-profit organization that brings awareness and education to consumers and employers regarding the necessity of criminal background checks on all service employees, contractors and subcontractors hired to work in or near clients’ homes. For more information about C.A.U.S.E. visit www.sueweavercause.org.

7 Common Employer Concerns

Even with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks. Described below are seven common concerns that employers express.

Is screening legal?
Yes. Employers have an absolute right to conduct lawful pre-employment screening in order to hire the bestqualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know who is being hired with an applicant’s right of disclosure and privacy. Under this law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated equally. A qualified screening company will assist an employer with legal compliance issues.

Does screening invade privacy?
No. Employers can find out about only those things that an applicant has done in his or her “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that can be seen as valid, non-discriminatory predictors of future job performance. Employers should also take steps to maintain confidentiality within an organization, such as keeping background check reports in a separate file from the personnel files.

Is screening cost-effective?
Yes. A pre-employment screening will typically cost less than the expense of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire or one incident of workplace violence can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, so not all applicants are screened. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, so any money spent in an effort to avoid problems in the first place is money well spent.

Does screening discourage good applicants?
No. Employers who engage in screening do not find that good applicants are deterred. Good job applicants have a desire to work with qualified and safe coworkers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion.

Does screening delay hiring?
No. Background screening is normally performed in just 48 to 72 hours. Keep in mind that most of the information needed is not stored in databases, but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays, such as previous employers who will not return calls, schools that are closed for vacation or a court clerk who needs to retrieve a record from storage.

Furthermore, an organization that is careful in its hiring practices should find a lower rate of “hits” during background checks. There are a number of steps a firm should take to ensure safe hiring well before a name is submitted to a background company. These techniques include making it clear your firm does background checks in order to weed out bad applicants, knowing the “red flags” to look for in an application and asking questions in interviews that will filter out problem candidates.

Is screening difficult to implement?
Not at all. For an overburdened HR, security or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. In a short period of time, a qualified preemployment screening firm can set up the entire program and provide all the necessary forms. Many firms have secured Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.

How do you select a service provider?
First and foremost, an employer should look for a professional partner, not just an information vendor who is selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if an employer were choosing a law firm for legal representation, it would not select the cheapest—it would clearly want to know the selected firm is competent, experienced and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal FCRA and applicable state laws. An employer should only utilize firms that have committed to professional standards, as evidenced by membership in the professional organization for background screening firms, the National Association of Professional Background Screeners (www.NAPBS.com).

Both employers and applicants need to accept that pre-employment screening is an absolute necessity in today’s business world. Pre-employment screening is a key element in any program designed to prevent workplace violence.

Lester S. Rosen is an attorney at law and president of Employment Screening Resources, a national background screening company (www.ESRcheck.com). He is a consultant, writer and frequent presenter on safe hiring, pre-employment screening and legal compliance. He is also an experienced criminal attorney and has and testified in court as an expert in safe hiring. He is the author of The Safe Hiring Manual–the Complete Guide to keeping Criminals, Terrorist and Imposters out of Your Workplace (512 pages/Facts on Demand Press).

ESR Releases Its Second Annual Top Ten Trends in the Screening Industry (2009 Edition)

ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring.  The full report is online at:  http://www.esrcheck.com/2009-trends-backgroundscreening-industry.php     

1.      Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries.  In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.

2.      Privacy and Accuracy:  Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.  A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse.  A new organization called Concerned CRA’s (www.concernedcras.com) has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.

3.      Second Chance for Ex-Offenders: Unless as a society we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records.  The State of New York, for example, to deal with this issue directly, has passed new “second chance” laws that became effective this year.  The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.

4.      Consumer Protection Litigation:  As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation in 2009.  These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.

5.      Impact of the Recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment or education history.

6.      Data Security, Data Breaches, and Offshoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection.  Closely related is the continuing issue of employers and screening firms sending confidential consumer data offshore for processing to places such as India for cost savings.  Once data leaves the United States, it is beyond U.S. privacy protections.  Concerned CRA’s (www.concernedcras.com) has also taken a stance against offshoring such data without notification to consumers.  The use of home-operator networks also presents an unnecessary risk to privacy as well.  There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.

7.      Accreditation by the NAPBS: The non-profit trade organization for the Screening Industry, the National Association of Professional Background Screeners (www.napbs.com) has announced the introduction of an accreditation program.  NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the accreditation process this year. 

8.      Social Network Sites:  The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates.  The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures.  Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy.  Stay tuned as more courts give their opinions on this issue. 

9.      Integration of Services:  With the advent of “Web 2.0,” it is likely that technology will play an even bigger role in the coming year.  Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.

10.  International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.

The Story Behind the Story - Why States and Cities are Concerned about Second Chances for Ex-Offenders

There is an increasing awareness in the United States that ex-offenders are having difficulty obtaining jobs due to their criminal records.  Although employers have a duty to exercise due diligence to promote a safe workplace, civil rights laws also do not permit employers to automatically disqualify someone with a criminal record before considering if there is a business justification based upon the nature and gravity of the crime, the nature of the job and how long ago the job occurred.  As noted above, New York has added additional factors that can be considered.

As reported in past ESR newsletters, there have been efforts made to help ex-offenders obtain jobs. In its January, 2007 newsletter, ESR reported that a number of municipalities were not asking about past criminal records on the initial application. The short-hand name is “ban the box,” referring to the box on an application asking about past criminal conduct. The logic behind theses law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches for criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. Cities are concerned about the burden placed on them by large numbers of un-employed ex-offenders.  See:  http://www.esrcheck.com/newsletter/archives/January_2007.php#T1

In March, 2008, the ESR newsletter discussed a meeting of the Conference of Mayors in New York City on the same topic. According to a press release from the Conference;

“With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back.”

See:  http://www.esrcheck.com/newsletter/archives/March_2008.php#T1

In the September, 2006, edition, ESR reported on lawsuits for discrimination based upon ex-offenders denied employment.   http://www.esrcheck.com/newsletter/archives/September_2006.php#T1

In passing the new laws in New York, the New York legislature gave as a justification that up to 60% of ex-offenders are unemployed one year after release and there is a strong correlation between unemployment and recidivism.  The legislature cites statistics that, in New York State, eighty-three (83%) of individuals who are in violation of the terms of their probation are unemployed.  See (legislative justification contained in New York A07847)

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. Employers who fail to exercise due diligence can be sued, and innocent consumers, co-workers and members of the public can be the victims of workplace violence, theft or other wrongdoing.    

On the other hand, our society does not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. Automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. Unless ex-offenders can get a second chance, our society will spend more time and resources building prisons instead of schools, hospitals and roads.

The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. However, this pre-supposes that employers are doing proper screening and practice due diligence in their hiring.

It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. In fact, the National Association of Professional Background Screeners (www.napbs.com) has donated money to such programs.

Background screening firms are often caught in the middle of this debate.  Although a screening firm does not make the hiring decision, screening firms are retained by employers to research potential criminal records.  A background screening firm should clearly advise employers that there are limitations on the use of criminal records.

New York Passes Four New Rules Affecting Background Checks to Help Ex-Offenders Have a Second Chance

Effective February 1, 2009, three (3) new rules go into effect in the State of New York designed to give ex-offenders a second chance of entering the workforce.  These rules affect both employers and background firms.  A fourth law, effective September, 2008, gives employers some additional protections against lawsuits for negligent hiring if they can show that an applicant with a criminal record was hired after good faith consideration of the rules affecting the use of criminal convictions.

Under existing New York law (Correctional Law Article 23-A), an employer is required to consider and balance various factors where an applicant has a criminal record (unless, of course, there is a statute that prohibits the employment of a person with certain convictions).   The factors are set out in New York Corrections law section 753 found at

http://www.labor.state.ny.us/agencyinfo/PDFs/CorrectionLaw%20Article%2023-A%20_4_.pdf

The factors enumerated in section 753 of Article 23-A include such things as:

The duties of the job
The relationship between the criminal offense and the job
How long ago the conviction occurred
 The applicant’s age at time of the crime
How serious the offense was
Information produced regarding the applicant’s rehabilitation and good conduct.
In passing some of these laws, the New York legislature cited a 2007 study that found that New York employees were largely not familiar with New York laws on utilizing past convictions, or that a criminal record poses a significant barrier to employment.

In response, the three new laws require the following effective February 1, 2009:

1.      Provide a copy of Article 23-A:  An employer must provide a copy of Article 23-A to all job applicants undergoing a background check.  An employer may want to provide that notice at the same time the applicant signs a consent form and receives a disclosure form.  A technical reading of the statute may suggest such a requirement is limited only to a situation where an employer is requesting a special type of background report called an “Investigative Consumer Report,”  where information is obtained through interviews.  However, the legislature in New York, based upon the legislative history, clearly intended this to apply to all consumer reports.  As a best practice, employers should consider providing this notice regardless of the type of background report being conducted. 

2.      Posting a copy of Article 23-A:  An employer must also post a copy of Article 23-A in “a place accessible to his or her employees and in a visually conspicuous manner.”  Employers can simply download the copy of 23-A linked in this article.  The required notice will likely be included in commercial labor posters that come out in 2009 for the state of New York.

3.      Provide additional copy of Article 23-A if a criminal record is found:  Where a background report on an applicant contains information on a criminal conviction, the employer must again provide a copy of Article 23-A to the applicant.  

As part of the legislative approach, New York employers that follow Article 23-A now have increased protection from lawsuits for negligent hiring. This protection applies where an employer hires someone that has a conviction history but the employer has made a reasonable and good faith determination that, due to the factors in Article 23-A, the applicant should still be hired. In that situation, there is a “rebuttable presumption” that evidence of the employee’s past criminal record cannot be admitted into evidence and be used against the employer. 

A “rebuttable presumption” is an assumption of fact accepted by the court until disproved by the other side.  For example, evidence of the employee’s past criminal record can only be used in a negligent hiring case if the plaintiff can overcome the presumption by showing that there was not a reasonable and good faith determination by the employer under article 23-A.  This new protection can potentially provide employers that do hire applicants with a criminal record protection from a lawsuit as long as the employer can document  that the employer discovered the criminal record and then applied the criteria in Article 23-A in a reasonable and good faith manner. 

ESR clients will receive a detailed memorandum and training in January on the details of these new laws in New York as well as some other “only in New York” rules. This also raises issues on how employers that are not in New York need to deal with New York applicants or applicants that formerly lived in New York.   For employers that would like the online links to the actual legislation as well as the legislative memos that outline the purpose and justifications for these laws, please contact Jared Callahan at 415-898-0044 or jcallahan@esrcheck.com   

The Good News and the Bad News About the FCRA

There is bad news and good news about the FCRA. The bad news is that the FCRA is a very complex and convoluted law that makes little sense if an employer sits down and tries to read it. Anyone wanting to read the law can go to the website for the Federal Trade Commission (FTC), the federal agency charged with administering the law.

The good news is that there are only four basic steps an employer needs to know about the FCRA in order to begin an Safe Hiring Program while using an employment screening firm. These steps are explained in detail in Complying with the Fair Credit Reporting Act (FCRA) in Four Easy Steps©.
Here is an important fact: the FCRA kicks in when a pre-employment background pre-screening is conducted by the CRA. Therefore, if an employer works with a professional pre-employment background firm, the employer should select the firm based in part upon the background firm’s knowledge of the FCRA. A competent background firm should know how to fully comply with legal requirements of the FCRA, including preparation of all documents and forms needed for a fully compliant screening program.

Employers risk legal liability if the procedures utilized to check on applicants infringe on legally protected areas of privacy. By following the FCRA, an applicant's privacy rights are protected. For this reason, many legal experts advise employers to engage the services of an outside screening firm.

When engaging the services of a CRA, both the employer and the CRA must understand how critical it is to follow the FCRA. Failure to do so can result in substantial legal exposures, including fines, damages, punitive damages, and attorneys fees. Below is a brief summary of the substantial penalties involved for NOT following the FCRA.

© excerpt from The Safe Hiring Audit book.