New Book on Back Screening Available

It's not often that I have the chance to recommend published works (many of them are self-serving crap and are filled with the author's view of Employment Screening, which is usually designed to make the reader want to screen employees their way).

But I have just finished the new book by W.Barry Nixon, SPHR and Kim M. Kerr, CPP entitled "BACKGROUND SCREENING AND INVESTIGATIONS - Managing Hiring Risk From the HR and Security Perspectives" (Published by Butterworth - Heinemann [Elsevier]) website:www.books.elsevier.com/security.

I contributed to this book, as I am often asked, but rarely do because I am always cautious, but in this case in my view, this is the definitive work on the topic, it is fantastic and is worth reading from cover to cover.

It successfully bridges the seemingly insurmountable gap between the HR and Security departments, which is long overdue, and something I have tried tod o in my daily practice, for almost 30 years. I get absolutely nothing for this recommendation (no royalties, no compensation in any manner whatsoever) other than the knowledge that you will benefit by reading it.

Why is it great? Simple. Barry Nixon is an SPHR, an HR Guy first and foremost, and is not in the employment screening business he is theExecutive Director for the National Institute for Prevention of WorkplaceViolence and is neutral.

Can we Screen our Vendors?

Yes, but keep in mind that anyone who is not incorporated, or does not have a LLC, PTP or dba, and who is internally classified as an Indepent Contractor (a designation that could create an issue between you and the IRS) and assumes the operational complexion of an "employee" or "associate" under the FCRA and FACTA, is required to provide written consent for a background check under a Notice to Consumer, before you can obtain background information on them.

Facebook sets new child safeguards

Social networking site Facebook is adding more than 40 new safeguards to protect young users from sexual predators and cyberbullies, although the most extreme measure – banning convicted sex offenders – won't apply to Canada or other countries outside the United States.

Read more

Government Employers: Pre-Employment Drug Test Deemed Unconstitutional

Regarding whether US citizens have a "right to privacy."

The imposition upon the citizenry of statutory law, and/or court order confers "responsibility" and a requirement for "compliance" and by virtue of the requirement for said compliance confers an expressed and/or implied"right" by virtue of the "protection" afforded a person, regardless of what the constitution or the bill of rights says, since the inured to agent of that very document (the constitution), also confers to the parties insuccession, the power to modify it, and make it applicable in whatever context the times demand.

The "right" conferred by the statutory law or court order is exactly that, even though the presiding document contains what I assume your position would extol as "subtext", which is developed through the judicial or legislative process, (and which can only be) created subsequent to the creation of the original document.

The benefit from the protection afforded under the statutory "limitation on certain freedoms (in this case, the freedom to invade another person's privacy at-will) is that implied (and, I would assert, as well in this context is also an "expressed") "right" as defined by the existence of law which is designed to limit the opportunity for a citizen to violate it, which in turn, confers a statutory "right" at least to the extent of thestatutory protection.

If you don't think US citizens have a right to privacy, no matter which underlayment confers, infers, implies an/or expresses the "right", then I will happily see you in a court of competent jurisdiction, where I will cite the myriad federal, state and local "privacy" statutes, which your position might violate, and the jury will rule in favor of my argument, especially if the trier of fact can point clearly to an obvious breach of the duty imposed under whatever law, instrument or court order confers or infers the impliedor expressed "right", as it has 100% of the time, since I have provided expert testimony, since 1993.

Splitting of hairs, and defense of same by obscuring the existent fact, is very dangerous, and,suffice to say, taking the constitutional position is adverse to public policy and public law, not to mention practice, and, my position is that leading HR Professionals who believe in ANY context that an individual has no guarantee of privacy, is irresponsible, be it constitutional, or otherwise, because, quite simplywhere the constitution does not confer this "right" subsequent law and court decisions do, which moots the constitutional argument, imprimis.

If you don't provide a candidate the opportunity to consent to the invasion of his/her privacy for candidacy determination in the employment setting, for example, and, which under the Fair Credit Reporting Act just happens to be the most heavily regulated area as regards Consumer reporting, and Consumer privacy, you're going to the pokey and Plaintiff's Counsel isoing to sue your fanny off, and will win, at least, in my view, and in my experience.

Understanding Civil Litigation Checks in the Employment Screening Process

By now we are all aware of what the standard background check components are including criminal conviction checks, driving histories, credit reports, referencing, drug testing and more. Yet there exists a little-used component begging to be understood – the efficacy of civil litigation histories for employment screening purposes.

Civil litigation histories are typically misunderstood. Unlike criminal conviction records, driver’s license checks, or employment credit reports, civil litigation histories are comprised of civil lawsuits that may involve a candidate, but are extremely hard to identify because of the lack of normal identifiers contained in other available modules such as date of birth, address, social security number as well as physical description.

Read the rest of this article here

What Privacy Rights do we Really Have/

Among many other Court interpretations of the Constitution, in the 1965 case GIRISWOLD v. CONNECTICUIT, the U.S. Supreme Court upheld that the First, Third, Fourth and Ninth Amendments to the Constitution protect an individual's right to privacy.

With regard to the employment setting, the reason for consent to the waiving of one's personal privacy obtained from a candidate is:

1. to ensure and document an individuals opportunity for employment with conditions, which in this case are that the candidate waive privacy rights to a prospective employer in favor of public policy, namely in support of the employers duty to provide it's employees, customers and visitors with a safe workplace; and,

2. to be able to validate information provided on an application form, and to comply with Federal and State regs, which specifically state that consent is required in order to conduct background checks (of any nature) not only to protect the individual from unreasonable scrutiny, but to ensure open dialog is available to the candidate concerning any adverse information discovered which could have a bearing on candidacy, as well as providing the opportunity by the candidate for full disclosure.

While criminal conviction records are public, the regulation of the use of them in the employment setting is specifically and heavily regulated on a federal and state-by-state basis.

Cavalierly dismissing court interpretation of constitutional privacy guarantees in favor of this unsophisticated constitutional argument is a recipe for disaster for ANY employer.

Please review the www.FTC.gov website for:
The Gramm-Leach-Bliley Act
The Fair Credit Reporting Act
The Fair and Accurate Credit Transactions act, and, also, the website for the Privacy Rights Clearinghouse.

Screening Your Employment Screener

Here is why whoever you use as an Employment Screener should be thoroughly scrutinized for information security, and why other than my investment in compliance, my heaviest investment is in safeguarding our proprietary
information:

http://www.ftc.gov/opa/2008/03/datasec.shtm

Think about the MILLIONS of applications exposed to identity thieves because of a lazy data security attitude.

1001 Reasons why a Criminal File can be Delayed?

OK, so maybe just 10 of the 1001 reasons.

Criminal conviction reports are a strange animal, and maybe this will shed some light on the increase in time that it might take to get a record. First, depending on your provider, you may be getting a mix of information, which, in and of itself, can delay the process. By "mix" I mean, many providers use databases, then discover a file, and then try to find a researcher in the applicable jurisdiction, and then pull the file.

These are referred to in our industry as "data sellers" or "amateurs" and should be avoided, as they don't know what they are doing. These providers regularly blame the "courts" which is what we do because this is a valid complaint, usually, but this also prevents you from being able to learn who is an amateur and who is a pro.

Next, if you use a sophisticated provider, they will do lead generator searches, combined concurrently with jurisdictional requests from proven researchers that go to the applicable courts every day, so the delay would be minimal. This is optimum.

Now, understand that most of the time, with a competent purveyor, it is not the background company's fault for the delay, it can be as a result of myriad things:

1. Holidays. The most misunderstood problem in criminal researching is that as a rule, people that feed at the public trough (public employees) many times have untold benefits, that include time-off at levels that we mere mortals can't even imagine, so, it is the rule, rather than the exception that jurisdictions are mostly understaffed, meaning they are not at full complement on a given day (usually the day that you desperately need your criminal record, because you are about to lose your number one candidate). But, believe me, at budget time, everyone is on-station, ready to start work! Key here is to know when budget time is, but that is a closely guarded secret!

2. Clerical delays. It is important to understand that legitimate background screening firms buy their information directly from the jurisdictions at the 'public' counter. Key word here is "public." That means people who are lower-than life to the clerks, after all, they are behind the counter with the full force and effect of public employment, and you are a peon citizen who pays their salary, but they don't care, you are under their control, and this is the only control many of them will have throughout their lives, so, you are screwed. In effect here you have complacency at the beginning level, a dangerous level to have complacency.

3. Competition. Many times when the researcher goes to the public counter, there is a line out the door comprised of other people wanting to visit the public counter, for a number of reasons, the most of which is to FILE LAWSUITS, and, which take inordinate amounts of time to file, and, many times, the people in line are Attorney Services, who have 40 lawsuits to file at that window, and each one takes 5 minutes, so they will dominate that window, sometimes for an hour or more.

Nothing is more upsetting than waiting in line, and watching the attorney service people dominate the public counter 'windows', and then, about an hour before the public employee lunch hour, the windows start closing (I guess it takes an hour for a public employee to wash their hands before lunch), and, then, all of a sudden, there is one window open with the same amount of attorney service personnel in line, all who still have 40 cases each to file. (There is no understanding in the public sector that lunch hours should be staggered in order to avoid an interruption in service to the public).

4. Missing files. Very common, as the files go to several places (not just the clerk's counter, and Judges chambers like everyone thinks they do, I can't tell you how many times, I have had to go to a particular Courtroom to locate a file that the clerk said was on the Judges desk, only to find that the case was transferred to another judge and courtroom, and never landed on the judges desk, and that it is still in the hands of the Bailiff of the originally assigned courtroom.

5. Privacy. Many jurisdictions are being imposed upon to "secure" the identities which might exist in public records, so that means there is a team that reviews every page of every file at every jurisdiction in the US, and, I guess you can just imagine how backlogged they are. Many times I find files in that horribly understaffed office, mainly understaffed because no one budgeted for the new rules, and so employees are cannibalized from, you guessed it, the public windows.

6. Broken Equipment. Many times just when you pull up to the microfiche Reader - Printer, either the reader bulb ((1 $29 item) burns out, or the printer portion fails. Just guess how responsive public environments are to equipment repair needs, so in the old days in LA County, for example, it was not uncommon to have researchers sharing the 6 working of the 30 machines.

7. Partial Records. Many times a jurisdiction will "parse" files, which means that some of the older sections of a file will be in one place, and some will be in another place. This is bad, since, many clerks don't under stand that 1 + 1 = 2, they just see the missing file card, and after two days of waiting, they report back to the researcher that the file "is not in this office."

8. Multiple Reviews. Here we see a file being requested by several researchers at once, because the applicant has used Monster.com, and there are 47 interested competing employers. These files are now in the hands of researchers who are subject to their own set of situations, see above, and add: doctor's appointments, sick children, cab fare pickups (yes, many researchers are cab drivers and hairdressers, if not members of the NPRRA or the PRRN.

9. Vacations. Here is that time-proven problem that will never go away, and affects public employees, researchers, attorney services, etc. Worst one is when your file is on the desk of the 30 year public employee who has accrued 16 weeks vacation per year, and has been put in charge of the privacy desk. (See above).

10. Computer Downtime. See Broken Equipment, above, but multiply the effect by the power of 37.

There, now you know at least 10 of the 1001 reasons why a criminal file can be delayed.

Random Drug Testing

My client asked, the following question: Employee comes on shift at 11:00 PM and reeks of alcohol, and/or marijuana. Can he use the random drug testing policy at that moment in order to assess the extent of the impairment, and/or simply to determine and/or confirm impairment?

My answer was two fold:First, my position has always been that an employer has the right and the responsibility to maintain a safe working environment for all employees, customers, etc. so if the EE is suspected of impairment, I have always believed that an employer has the right, upon detecting any form of impairment, to ask the employee if they have been drinking or using marijuana (in this case). And if an affirmative response is returned, then the EE can be sent home and his pay docked (all of this in the absence of a policy outlining this contingency).

In the event of a negative response, I have always believed that an employer can, upon detection determine by his own nose or observations (which should be carefully documented) that he has the power to send the EE home, as a safety mitigation measure. Either way,the employer is always responsible for a safe environment for employees and customers and has the authority to ensure that is the case by taking either the voluntary or involuntary action of sending the EE home.

The second part of the answer is that, random testing means random testing, and as long as the lab or the collection site is open I believe the EE can be dispatched to the site at will.