By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)
For the past 5 years, Employment Screening Resources (ESR) has compiled a list of emerging and influential trends in employment screening background checks. This year, the use of criminal background checks by employers for employment purposes coming under greater scrutiny of the U.S. Equal Employment Opportunity Commission (EEOC) has topped the fifth annual ‘ESR Top 10 Trends in Background Checks for 2012’:
1) Criminal Background Checks of Job Applicants by Employers Coming Under Greater Scrutiny by EEOC: With a recent survey showing nine out of ten employers conduct criminal background checks on some or all job candidates, the EEOC held a public meeting in July 2011 examining the use of arrest and conviction records by employers for criminal background checks to determine if the practice was an unfair and discriminatory hiring barrier to job seeking ex-offenders. The EEOC’s actions, coupled with the growing "Ban the Box" movement seeking to remove the criminal history question from job applications, shows that employer use of criminal records is under fire now more than ever.
2) Credit Report Background Checks of Job Applicants by Employers Increasingly Regulated by State Laws: In recent years, several U.S. states have passed laws regulating the use of employment credit reports of job applicants and current employees that have impacted the way employers conduct background checks. Seven states – California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington – currently have laws that limit the use of credit report checks by employers for employment purposes, with the most recent law, California Assembly Bill 22 (AB 22), taking effect January 1, 2012. Other states, and the EEOC, are considering further restrictions on credit checks.
3) Social Media Background Screening Checks of Job Applicants Becoming More Prevalent and More Controversial: Employers are using ‘social media background checks’ to uncover information about job applicants on websites such as Facebook, LinkedIn, and Twitter. However, the use of social media background checks for job applicants can present legal risks. Failure to utilize social media resources can arguably be the basis of a negligent hiring claim if an unfit person was hired for a position where a search of the internet may have raised a "red flag." Conversely, employers face numerous landmines and pitfalls that can include that include privacy, discrimination, and accuracy issues. Lawsuits and developments in this area will likely be an ongoing topic in 2012.
4) Automation in Employment Background Screening Leads to Both Increased Efficiency and Increased Risks: In recent years, employment background screening has gone from a costly and time consuming task reserved for selected job applicants to an increasingly automated and technology driven business necessity in a global economy where employers expect fast, accurate, and inexpensive results from screening providers. However, both employers and background screeners are finding with increased efficiency comes increased risks, especially when it comes to the use of unfiltered information going directly to employers from criminal database or inaccurate information obtained by "screen scrapping or automated robotic searches."
5) Background Screening Accreditation Program Proof of Increased Emphasis on Professionalism in Industry: When the National Association of Professional Background Screeners (NAPBS®) was formed in 2003 as a professional trade association for the background screening industry, the idea of an accreditation process was a central driving force in order to demonstrate that background screening was a professional endeavor. Currently, NAPBS accreditation is quickly becoming a requirement of many employers when considering a background screening provider since it is the only practical means of third party verification of the professionalism and competency of a particular screening firm.
6) Diploma Mills Offering Fake Degrees and False Credentials Likely to Increase in Tight Job Market: A 2011 report from Europe’s leading background screening firm revealed an astounding 48 percent increase worldwide in the number of known fake diploma mills in the previous year, and the number of what the report describes as "largely online entities whose degrees are worthless due to the lack of valid accreditation and recognition" is likely to increase in the coming year as desperate job applicants knowingly – and unknowingly – do business with companies that offer fake degrees and false credentials for a price.
7) Employment Screening Lawsuits Increase as Attorneys and Consumers Become Familiar with FCRA Laws Regulating Background Checks: Consumers and attorneys are looking more closely at background check reports and laws governing employment screening and filing more lawsuits against employers. On one hand, employers are being sued by victims that alleged the employer failed to perform adequate screening. On the other, employers and background screening firms also face lawsuits from job applicants complaining about the accuracy of background reports, or failure to meet the guidelines of the federal Fair Credit Reporting Act (FCRA). In a number of cases, class action suits are being utilized as the vehicle to bring legal actions against employers.
8) New E-Verify Laws Create Complex Web of Federal and State Rules for Employers: While federal law mandates that federal contractors and subcontractors in all states must use the otherwise voluntary electronic employment eligibility verification system known as E-Verify, several U.S. states – including Alabama, Arizona, California, Georgia, and North Carolina – recently enacted laws mandating its use (or non-use). E-verify is a free web-based system that allows employers to verify the legal work authorization status of newly hired employees, creating a complex and confusing web of laws and regulations.
9) Offshoring Personally Identifiable Information Outside of US Increases Concern Over Privacy and Identity Theft: A new California law that took effect January 1, 2012 – Senate Bill 909 (SB 909) – appears to be one of the first in the nation that addresses the growing concerns over the controversial practice of "offshoring" personally identifiable information (PII) collected during background checks of job applicants by sending the data outside of United States and beyond the protection of U.S. privacy and identity theft laws. The privacy concerns over “offshoring” of PII is a growing trend.
10) Self Background Checks Proactively Conducted by Job Seekers to Help Verify Accuracy of their Public Information: If jobseekers want to get hired for a job these days, they will probably have to undergo a background check. And if they have to undergo a background check, it would be in their best interest to make sure the information found on the background check is accurate, up-to-date, and complete. As a result, some jobseekers are taking matters in their own hands by proactively conducting "self" background checks on themselves to verify the accuracy of their public information.
Please join me March 22 for the BLR webinar "Background Checks: How to Legally Use Credit Inquires, Social Media Searches, and More." In just 90 minutes, you'll understand the legal dos and don'ts for conducting background checks on employees and job applicants.
Attorney Lester Rosen is Founder and CEO of Employment Screening Resources (ESR) –– a background check firm accredited the National Association of Professional Background Screeners (NAPBS) . He is the author of “The Safe Hiring Manual,” the first comprehensive guide for background checks, and a frequent speaker on due diligence issues. He was chair of the steering committee that founded the NAPBS and served as first co-chair. He has qualified and testified as an expert in court cases relating to background checks, and is a licensed Private Investigator.