| Employment Screening Resources (ESR), | | | | denying employment without considering whether |
| a leading national employment screening | | | | there is a business justification for disqualification |
| background firm, released its "Second Annual Top | | | | based upon the crime and the job. This will |
| Ten Trends in the Pre-Employment Background | | | | continue to be a developing area in 2009. One |
| Screening Industry" for 2009 today. Although | | | | example are the new laws passed by the State |
| issues from 2008 remain on the list, the 2009 | | | | of New York that become effective this year |
| trends reflect increasing concerns over the use | | | | that place a greater emphasis on employers |
| of Facebook and similar sites, lawsuits looming | | | | analyzing a past criminal record to determine |
| over inaccurate Background Screening reports, | | | | whether there is a business justification not to |
| increasing government scrutiny of the screening | | | | hire a person. The New York law also requires |
| industry and privacy and security issues. | | | | that notice of various rights be provided to job |
| "In the current legal environment, businesses want | | | | applicants (See an explanation of the New York |
| to make sure they are not only exercising due | | | | laws in the December, 2008 ESR Newsletter. |
| diligence but are also ahead of the curve on legal | | | | 4. Consumer Protection Litigation: As the |
| issues," said Lester S. Rosen, attorney at law and | | | | screening industry matures, and applicants and |
| founder of ESR and author of two books on | | | | their lawyers become much more informed about |
| background screening. "The quickest way to get | | | | their consumer rights, it is likely that there will be |
| sued is to not understand the legal environment | | | | an increase in litigation. The may include class |
| and latest trends surrounding background checks | | | | action lawsuits against screening firms, particularly |
| and employment." | | | | when it comes to various notices required under |
| Rosen believes that the federal and state | | | | the federal Fair Credit Reporting Act, and |
| governments will require more background | | | | accuracy requirements in the federal law. Since |
| screening in 2009, especially in sensitive jobs, and | | | | database searches can result in false negatives |
| that more businesses will make Pre-Employment | | | | (meaning a criminal is missed) as well as false |
| Background Screening a requirement for the job. | | | | positives (meaning an innocent person is labeled a |
| The increased use of Applicant Tracking Systems | | | | criminal), it is probable that employers and |
| will lead to "one button" clicks for background | | | | screening firms that rely upon databases may be |
| checks, he says. | | | | the subject of litigation where a database search |
| "At the same time, consumers are worried about | | | | failed to locate a dangerous person. |
| their privacy. That’s why data protection and | | | | 5. Impact of the recession: As a result of the |
| accuracy have become so critical. The use of | | | | recession and higher unemployment, it is likely that |
| social networking sites like Facebook and MySpace | | | | employers will need to scrutinize applications even |
| are another minefield for employers," says Rosen. | | | | more carefully, to be on the watch for fraudulent |
| "We have identified 10 Trends to help alert | | | | credentials, such as inflated or fictional |
| employers on what to expect in 2009." | | | | employment history or educational degrees. |
| Hot topics for 2009 include tighter government | | | | Another recession related trend may be the |
| regulation, privacy concerns, and controversy | | | | increase in applicants who are willing to perform |
| over sending sensitive data offshore for | | | | their own background checks in order to present |
| processing, increasing demand for accurate | | | | to employers a self-certification that their |
| criminal record reporting, and the probability of | | | | credentials are for real. Since more temporary |
| more lawsuits against both employers and | | | | employees and Independent Contractors are hired |
| background screening firms. Not that the 2008 | | | | during a recession, the issue of screening |
| trends outlined in January 2008 are no longer | | | | non-employees will continue to be important. |
| relevant, but a shifting world has reshuffled the | | | | 6. Data security and data breaches and |
| challenges facing employers, job applicants and | | | | Offshoring Data: Since identity theft continues to |
| screening firms. | | | | be a national and international problem, expect |
| 1. More Government Regulation: Likely to | | | | even more emphasis in 2009 on data security and |
| increase in 2009 are the requirements by federal | | | | protection. Closely related is the continuing issue |
| and state governments for more background | | | | of employers and screening firms offshoring |
| checks in sensitive industries – such as child | | | | consumer data to India or other similar places for |
| care workers and certain health workers. Another | | | | cost savings. Once data leaves the United States., |
| area where the government requires checks is | | | | it is beyond U.S. privacy protections. A new |
| verification of the eligibility of a new hire to work | | | | organization called Concerned CRA’s has |
| by using the E-verify program. Although litigation | | | | taken a stance against offshoring such data |
| has been filed, the announced rules require | | | | without notification to consumers. The use of |
| employers with certain federal government | | | | home-operator networks also presents an |
| contracts to utilize the E-verily program starting in | | | | unnecessary risk to privacy as well. There is no |
| 2009. Along with the federal government, the | | | | justification for personal information to be spread |
| states are becoming increasingly involved in | | | | across kitchen tables and dorm rooms across |
| regulating screening. | | | | America. |
| 2. Privacy and Accuracy: The subjects of | | | | 7. Accreditation by the NAPBS: The non-profit |
| privacy, accuracy, and fairness will also be major | | | | trade organization for the screening Industry, the |
| issues for 2009. Privacy Times newsletter, for | | | | National Association of Professional Background |
| example, led off its December 2008 issue with an | | | | Screeners has announced the introduction of an |
| article criticizing the screening industry. The letter | | | | accreditation program. NAPBS has gone through |
| noted that a coalition of legal aid groups has called | | | | an exhaustive process to develop “Best |
| on the Federal Trade Commission to take | | | | Practices” for the industry, and it is anticipated |
| enforcement actions against background screening | | | | that firms will start going through the process this |
| companies for “widespread noncompliance | | | | year. |
| with the Fair Credit Reporting Act’s | | | | 8. Social network sites: The use of social |
| requirements for accuracy and dispute | | | | networking sites as a pre-employment screening |
| investigations.” | | | | device will continue to be a hot topic in 2009, as |
| The report was especially critical of the use of | | | | more recruiters and HR professionals go online to |
| criminal databases that can falsely accuse an | | | | satisfy their curiosity about candidates. The |
| innocent person of being a criminal, and the failure | | | | problem: contrary to popular belief, just because it |
| of some screening firms “to take into account | | | | is online does not mean that it’s a good idea |
| the fact that criminal identity theft is unfairly | | | | to utilize it without developing policies and |
| tarring thousands of job applicants.” A leading | | | | procedures. Online material can be inaccurate, |
| cause of inaccuracies is matching innocent job | | | | discriminatory, and under certain circumstances, its |
| applicants to criminal records based upon the | | | | use can be an invasion of privacy. Stay tuned as |
| same or similar name in a database, without | | | | more courts give their opinions on this issue. |
| re-verification of the record at the courthouse. A | | | | 9. Integration of services: With the advent of |
| new organization called Concerned CRA’s has | | | | “Web 2.0,” it is likely that technology will |
| taken a stance against utilizing such databases | | | | play an even bigger role in the coming years. |
| without taking proper measures to ensure | | | | Seamless integrations with Applicant Tracking |
| accuracy of criminal records. | | | | Systems allow paperless background screening |
| 3. Second chance for ex-offenders: Unless as a | | | | systems at the click of a mouse. |
| society, we want to build more prisons than | | | | 10. International background checks: In 2008, we |
| schools or hospitals, something must be done to | | | | observed that, “With mobility of workers |
| reduce recidivism and find employment for | | | | across international borders, due diligence is no |
| applicants with criminal records. At the same time, | | | | longer limited to just what an applicant has done in |
| placing the wrong person in the wrong job can be | | | | the United States. Although there are numerous |
| a disaster and cause untold grief. As a result of | | | | practical and legal challenges as well as data and |
| Title VII and notice from the EEOC, employers | | | | privacy concerns, international background checks |
| are well advised to review their hiring practices to | | | | are becoming very accessible to employers.” |
| ensure that they are not discriminating against | | | | That will continue to be the trend in 2009 as well. |
| members of protected classes by automatically | | | | |