Here’s an article from The San Diego Union-Tribune, By Greg Moran , UNION-TRIBUNE STAFF WRITER, reaffirming the importance of background checks on employees and what it could cost a company not to do so.

Wednesday, July 28, 2010 at 10:10 p.m.

SAN DIEGO COURTS — A San Diego Superior Court jury on Wednesday awarded a mother and her adult daughter $10.8 million in damages for the injuries they suffered in a car crash with a Pizza Hut delivery driver in Clairemont.

The jury said that Shari Novak, who was 62 when the November 2008 collision occurred, should receive $8.6 million for medical and noneconomic damages. She suffered permanent brain damage and can no longer take care of herself on a daily basis.

Her mother, Olena Novak, who was 87 when the crash happened, suffered a broken neck and other injuries and was awarded nearly $2.2 million by the jury.

The Novaks were driving on Clairemont Drive near Ute Drive when a car driven by Nicole Fisk crossed into oncoming traffic and slammed into their car. She was 18 at the time.

Lawyers for the Novaks argued that Pizza Hut was responsible for the collision because they hired Fisk, who had a driver’s license for only three months and had a history of suffering blackout spells and staring episodes.

The company should have done more to check her background and assure that she could work safely as a driver, argued John Gomez, the lawyer for Shari Novak.

But James Yukevich, a lawyer for the California-based Pizza Hut Inc., said that the company should not be to blame because Fisk had a valid license, insurance and was subjected to a background check.

Yukevich said during the trial that Fisk was not formally diagnosed with epilepsy until after the accident, and that the crash occurred when she suffered an unforeseeable medical emergency.

Such a sudden medical emergency can be used as a defense to a negligence lawsuit under state law.

But jurors rejected that claim. After the verdict, juror Joshua Pingel said that he believed Fisk should have known she could have a blackout episode because of her medical history.

While the jury did not find Pizza Hut negligent in hiring her, it did conclude the company is responsible for damages because Fisk was their employee at the time.

Fisk, who suffered minor injuries in the collision, was initially named in the personal-injury lawsuit but was later dropped from the case.

Gomez said the money awarded by the jury will take care of Shari Novak’s past medical bills and provide for her future needs.

He said the verdict should send a signal to other companies “to be a little more careful when hiring professional drivers.”

Yukevich did not know if the company would appeal the verdict.

On May 2, 2012, Maryland Gov. Martin O’Malley signed into law twin bills (H.B. 964/S.B. 433), which prohibit employers from requiring current or prospective employees to provide their social networking website user names and passwords to the employer.  The bill takes effect on October 12, 2012.  Maryland is the first state to enact such a limitation on employers.  Stay tuned!  More states will most probably follow!

Yesterday, April 25, 2012, the EEOC released updated guidance regarding the use of criminal records in an employment setting, entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”.  The full text of the guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. We recommend that our clients review this with legal counsel. We have provided a brief summary below which is not intended as legal advice.

The EEOC Enforcement Guidance expands on the guidance issued over twenty years ago regarding enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.  This guidance once again notes that the use of criminal history records in employment decisions could potentially have adverse impact, and therefore recommends either the use of a validation study to support the consideration of specific offenses related to a specific position, or the application of the familiar factors to be considered from the Green v. Mo.Pac. R.R., 549 F2d 1158, 1160 (8^th Cir. 1977), along with the opportunity for an individual assessment or review of the decision.

The factors from the Green case are already familiar to employers.  They are:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

CARCO recommends that the opportunity for individual assessment be included with the pre-adverse action letter.  In the letter, the candidate would be provided both with instructions to make a factual dispute and with instructions regarding how they might provide mitigating information regarding a reported offense.  CARCO would be responsible under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. to follow the appropriate re-investigation procedures, and the employer would designate an individual, position or committee to perform an individual assessment regarding the report and any candidate supplied information.  The guidance in Section V.B.9 provides examples of relevant individual evidence that could be considered.  The good news for employers is that the guidance seems to indicate that individual assessment is not required unless requested by the candidate.

The requirement for individual assessment means, however, that absent statutory requirements or clear job requirements, decision matrices with “knock out” language like “not eligible” or “disqualified” should be avoided.  (It should be noted that the EEOC specifically expresses concern about state laws that are overly restrictive. The EEOC states in the guidance that complying with state law does not shield an employer from Title VII liability. It is unclear whether the EEOC intends to pursue legal action against employers and/or the state(s) emanating from alleged Title VII violations that result from conformance with state laws requiring specific types of criminal checks and specific “knock outs”.  This is one of the most disturbing aspects of this guidance, and CARCO will be working to obtain a clarification of the EEOC’s position.)

Employers should be aware that the EEOC takes a page from the “ban-the-box” movement and recommends that employers not ask about criminal records on the application.

Throughout the guidance, examples are provided to help employers understand the concepts covered in each section.

CARCO recommends that employers pay special attention to section VIII of the guidance, “Employer Best Practices”,  which summarizes many of the recommendations contained in the guidance.

CARCO, along with other leading consumer reporting agencies,  played a significant role with various associations and organizations working to ensure the final guidance issued by the EEOC struck the proper balance between negligent hiring concerns and the protection of job applicants/employees and protected classes.  We believe the final guidance issued by the EEOC is far more balanced as a result of those efforts, and less onerous to employers than it otherwise would have been.

We look forward to working with our clients and their legal counsel to successfully apply this guidance.

On March 19, 2012, the Mayor of the District of Columbia signed the Unemployed Anti-Discrimination Act of 2012, which prohibits employers and employment agencies from discriminating against job applicants based on their unemployment status. The Act is set to become the nation’s first law to ban the consideration of an applicant’s unemployment status in adverse hiring decisions. The Act will take effect following the statutorily mandated 30-day period of U.S. Congressional review, and publication in the District of Columbia Register.

Although the Act does not allow employees and applicants a private right of action, it is nevertheless significant in that it provides unemployed applicants and employee whistleblowers unprecedented protection from discrimination based on employment status.

Discrimination Defined

Under the Act, it is an unlawful practice for an employer or employment agency:

• To fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of his unemployed status.
• To publish in print, on the Internet, or in any other medium, an advertisement or announcement for any vacancy in a job for employment that includes:
  • Any provision stating or indicating that an individual’s unemployed status disqualifies the individual for the job.
  • Any provision stating or indicating that an employer or employment agency will not consider or hire an individual for employment based on that individual’s unemployed status.

Retaliation/Whistleblower Protections Defined

Under the Act, which contains broad retaliation and whistleblower protections found in other anti-discrimination laws, employers and employment agencies are prohibited from interfering with, restraining, or denying the exercise of any right specified therein. Further, the Act prohibits employers and employment agencies from failing or refusing to hire, or discharging, any employee or potential employee for:

• opposing any practice made unlawful by the Act;
• filing any charge, or instituting (or causing to be instituted) any proceeding relating to any right provided under the Act;
• giving (or about to give) any information in connection with any inquiry or proceeding relating to any right provided under the Act; or
• testifying (or about to testify) in any inquiry or proceeding relating to any right provided under the Act.

Exemptions

The Act contains three exemptions which allow employers and employment agencies to continue to engage in certain activities when filling job vacancies. Accordingly:

• Job advertisements may contain any other lawful job qualification including:

• • the holding of a current and valid professional or occupational license;
  • a certificate, registration, permit, or other credentials; or
  • a minimum level of education, training, or professional, occupational, or field experience;
• Employers and employment agencies may continue to examine the reasons underlying an individual’s unemployed status in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual; and
• Employers may limit the applicant pool to their own current employees and any advertisement can specify that only applicants who are currently employed by the employer will be considered for employment.

Enforcement and Remedy

The District of Columbia Office of Human Rights (“DCOHR”) will be responsible for handling all complaints alleging violations of the Act. Once a complaint has been filed, the DCOHR will have one month to investigate and determine whether an employer or employment agency violated the Act and assess a penalty.

Under the Act, DCOHR can assess civil penalties of $1,000 per claimant for a first violation, $5,000 per claimant for a second violation, and $10,000 per claimant for each subsequent violation (but not to exceed a total of $20,000 per violation). DCOHR will distribute the funds among any employee or potential employee who filed a claim under the Act.

Stay tuned! Similar laws are likely to follow!

The U.S. Chamber of Commerce is urging the Office of Management and Budget to require the Equal Employment Opportunity Commission to allow public input on its new enforcement guidance regarding employers’ use of criminal background and credit checks in the hiring process.

In an April 2^nd letter to Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs, the chamber said EEOC’s potential guidance on both topics warrant OMB’s review for procedural and substantive reasons.

Chamber members have concerns that EEOC’s potential guidance on criminal convictions and credit checks will remove or significantly limit the use of two important tools that employers use in hiring and related decisions.  An additional issue for members is that many feel the upcoming guidance may make employers more vulnerable to discrimination claims over the use of background checks.

Although EEOC has held public meetings on employers’ use of background checks and individual commissioners have met with agency stakeholders to hear their concerns, EEOC “has not shared its draft guidance for the opportunity to provide comment”, said the chamber.

The guidance is expected to be made public any day now and, according to the chamber, members of the public “can only guess as to the direction that the guidance will take”.

The Massachusetts CORI (Criminal Offender Record Information) reform bill was signed into law by the Governor on August 6, 2010. It is important to note that “Ban the box”, which prohibits employers from requiring job applicants to disclose criminal offenses on written employment applications prior to an interview, went into effect in November 2010. The most substantive changes, such as limits to CORI for employers, are effective as of May 4, 2012. Highlights of the CORI reform bill include:

• As of May 4, 2012, CORI will be available online, and certain entities, including employers, will be permitted fee-based access to the CORI database for the purposes of evaluating job applicants;

• Information available to employers will be limited to (1) felony convictions for 10 years following disposition, (2) misdemeanors for 5 years following disposition, and (3) pending charges.  However, if any criminal conviction qualifies to be included on an applicant’s CORI report, then all prior convictions will also appear on the report, regardless of when they occurred.

• Employers obtaining information from the CORI database will have to certify that they are authorized to access the CORI, that it is for a legally-valid purpose, and that the applicant has signed an acknowledgement form authorizing the employer to obtain the information.

• An employer who questions an applicant about his or her criminal history, or who makes an adverse hiring decision based upon criminal history must provide the applicant with a copy of the CORI database information.

• Employers conducting five (5) or more criminal background checks per year must maintain a written criminal offender record information policy.

• Employers are prohibited from maintaining CORI records of former employees or unsuccessful job applicants for more than seven years from the last date of employment or from the date of the decision not to hire the job applicant.

• Employers who make hiring decisions based on official CORI reports within 90 days of receiving the reports shall be held harmless in negligent hiring lawsuits that allege additional criminal background checks should have been conducted.

• Employers who continue to ask questions on initial written applications about felony or misdemeanor convictions may be subject to liability under the new law.

For more information, visit http://www.mass.gov/eopss/agencies/dcjis/

The Boston Worker’s Alliance put together a great chart summarizing differences between old and new criminal records laws. http://bostonworkersalliance.org/wp-content/uploads/cori-reform-in-massachusetts-2010-final-fact-sheet.pdf

This information should not be interpreted as legal advice.  We recommend that you check with your legal counsel to ensure that your company’s hiring policy is compliant with the Massachusetts CORI Reform Bill.

Please join us for this FREE  HR.com Webcast:  Background Screening Compliance Trends

By Frederick Giles, CPP, Senior Vice President, CARCO Group, Inc.

May 16, 2012 @ 3:00 -4:00 PM EST

Click Here to Register:

http://www.hr.com/stories/1332622469129

This session will cover the current hot topics in background screening. Compliance is both a concern and a challenge with rapidly changing laws, new regulators and new concerns generated by new tools. This session will provide an inside view of the changing compliance issues for those involved in background screening. Covered will be the recently released Equal Employment Opportunity Commission guidance and stance regarding the use of credit and criminal history research for employment decisions. History and background for that guidance will be discussed to provide both context and to provide advice and warnings to reduce the likelihood of becoming a target of an EEOC investigation.
Sweeping the country, “Ban-the-box” legislation is changing what is permissible to ask on applications. This session will cover that topic, explain why it is important and suggest a compliance strategy.
Next up, social media research is becoming more and more common as a pre-employment tool for employers. The problem for many employers is that this sort of research is so new, policies and guidance about how to properly conduct the research is hard to find. As a result, companies are in danger of running afoul of existing law, new laws being passed, or becoming the subject of new case law. This session will cover the pitfalls of doing social media research and make some recommendations to avoid those traps.
Privacy issues are an underlying and overriding concern when conducting any employment background screening. This session will briefly cover how privacy concerns affects background screening, and provide some very simple suggestions for human resource professionals to stay out of trouble.

Who Should Participate

This session is recommended for HR professionals who perform or supervise background screening of employees or applicants.

Extra Learning Material

All Registered HR.com members are also eligible for:

1. A copy of the slides presented in this presentation. These are available before and after the presentation.
2. A Real Media file of the presentation. This file can be downloaded to your iPod or MP3 player after the presentation.

Ever wonder where your church tithing money goes?  Apparently, an accounting clerk for the Archdiocese of New York spent seven years lavishly spending $1M of her church’s money on a high-end doll collection, works of art, and expensive clothing, jewelry, and furniture.  The 67 year old lady was described as a quiet and unassuming “church lady”, and the last person one would have suspected of this type of crime.  (I’m picturing Enid Strict, the church lady played by Dana Carvey on Saturday Night Live!) All the while, her complex scheme drained money from an education fund at the same time the church was closing Catholic schools.

A background check of the “church lady” would have uncovered that she actually was a fraudster who had a history of stealing from her employers. In 1999, she was arrested and convicted of grand larceny for stealing $46,000 from a New York City temporary agency, a crime that she confessed to. She received five years’ probation for this crime and was still on probation when she began working for the Archdiocese. She was also arrested in 1986 for grand larceny and forgery for stealing from another employer, a crime for which she served more than a year’s probation.

A criminal history record check would have prevented this fraud, the problems it caused, and the ensuing embarrassment to the Archdiocese.  Employers take heed – in this economic environment, it is more important than ever to ensure that all employees, especially those entrusted with the company’s finances, are vetted before hiring (even quiet and unassuming church ladies).

For our clients and friends located in South Carolina, this is a reminder that the state’s new immigration law is now in effect. The amended law requires all employers to enroll in the U.S. Department of Homeland Security’s E-Verify system beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days. Failure to enroll in and use E-Verify to verify new hires will result in probation for the employer or suspension/revocation of the employer’s business licenses.

Certain parts of the law are on hold right now – including the most controversial elements like transportation of illegal immigrants and requiring officers to check the immigration status of people they pull over if they suspect they are in the country illegally.

South Carolina joins the states of Arizona, Alabama, Tennessee, North Carolina, Utah, Louisiana and Mississippi in requiring public and private employers to use E-Verify to confirm a worker’s status.  The states of Georgia, Indiana, Virginia, Florida, Idaho, Missouri, Nebraska, Oklahoma, Minnesota, and Colorado mandate public employers, state agencies and/or state contractors use E-verify.

E-Verify is a free Internet-based system maintained by the U.S. Department of Homeland Security. E-Verify compares the information an employee provides on Form I-9, Employment Eligibility Verification, against millions of government records maintained by the Department of Homeland Security and the Social Security Administration. The database generally provides results in three to five seconds. If the information matches, the employee is eligible to work in the United States. If there’s a mismatch, E-Verify will alert the employer and the employee will be allowed to work while he or she resolves the problem.

For news on I-9/E-Verify law in your state, visit E-Verify & I-9 News » State Law, or contact a CARCO specialist at 866-557-5984 or visit  http://www.carcogroup.com .

The use of social media research in pre-employment screening and periodic employee re-screening is a hot topic for HR managers. The subject has been discussed in this and other forums over the last year but we are still being asked for guidelines and recommendations from many of our clients.

With social media tools such as Facebook, Twitter and LinkedIn, it is very easy for employers to find vast amounts of public information on prospective employees.  However, the legal implications of using public social profiles in the decision-making process can be costly.  Because we have received so many recent requests from clients and prospects, CARCO has worked closely with its counsel on FCRA and privacy matters to put together guidelines and recommendations on using social media research as part of pre-employment screening or employee periodic re-screening.  I wanted to share and discuss these guidelines with you.  Please see the link below.

 It should be noted that CARCO’s outside counsel for FCRA and privacy matters is a former FTC attorney and special counsel to the President on privacy, and is preeminent in this field.

Information contained in this white paper is for informational purposes only and should not be construed as legal advice.  Employers should contact their legal counsel when setting company policy on the use of social media in hiring decisions.

http://www.carcogroup.com/resource-center-cms.php?product_id_sku=RC02