September
12
2011
In an effort to make communications with APSCREEN easier, we have expanded into other social media platforms. We setup a company page for APSCREEN on Facebook and our very own Founder and CEO Tom Lawson is now tweeting on Twitter. If you are currently on either Facebook or Twitter we encourage you to reach out to us and “like” or “follow” us. Check out the links below to the websites.
January
13
2012
For many companies, referencing evokes more emotions that a hangover. Why you ask? Because the sheer nature of verifying employment, or education, or attempting to make contact with those dreaded former supervisors, co-workers or friends can take such inordinate amounts of time that one regularly wonders if it is really worth it! As an employment screener since 1980, I can definitively say that referencing is one of the single most important candidacy qualification tools. And, it is the one usually substituted out in favor of more factually based screening tools such as criminal conviction checks, driving reports and employment credit reports. Let’s look at why everyone, uniformly HATES to reference:
1. Multiple attempts.
Here we have the basis of ALL deference to referencing, and it is usually not a function of the reference, but more of the candidate. In our referencing division, and after literally millions of active references garnered over the last 32 years, 85% of the time, the reference fails because the CANDIDATE failed to provide adequate enough information to help you get to the source, or the employer failed to ask the right questions. In short, if you don’t ask the right questions of a candidate with regard to how to contact the person who shall provide accolades or admonishments, how can the candidate give you what you need to get it done? Conversely, if the candidate fails to provide who he using to help him put his best foot forward, how can he/she expect you to be able to properly screen and qualify him/her? It all boils down to a solid, simple inquiry form and a solid reply by the candidate. If the form is incomplete, move on to the next candidate – don’t chase them; make them provide you or your reference with what you need to get the reference completed. A variation on this theme is the reference company that will not try until the reference is achieved. Their service is limited.
At APSCREEN we call until we get the answers you need. That is the mark of a true referencing professional
2. Fake References.
In this situation, candidates provide a lot of stuff on paper, but with no actual substance, or they provide set-up references who don’t necessarily tell the whole truth. How do you combat this? We like to call it a “developed reference” which is simply asking the person whom you are speaking with to provide the names and phone numbers of at least two other people known to the subject. Once obtained, you have to call them immediately (before the candidate has a chance to prep them for your call) and you will get the unvarnished truth about the candidate, plain and simple.
3. Out-of Business Former Employers.
About 40% of the references APSCREEN attempts on a daily basis result in out of service telephone numbers, or returned mail. Again, it is up to the candidate to provide you with contact information that is current, cogent and easy to access, or there will be no reference.
4. Can’t Find the School.
If it is a “real” school it is easily locatable. And, if the school has moved, changed its name, or otherwise been absorbed into another institution, it is up to the candidate to keep you informed about his alma mater.
5. No Returned Calls after Messages Left. It is up to the candidate to let you know that the reference will be calling or don’t provide that reference.
6. Referencing is not a Hidden or Lost Function.
In fact, referencing is the shortest distance between you and a candidate’s suitability determination – so the sooner you get the references completed, the sooner that candidate advances.
7. In-house or Third-Party Reference Service?
Use of outside source is better when it comes to referencing. Outside referencers have the will and desire to get the files off of their desk and are not encumbered by being an HR Person, and all that entails. You will also be less swayed by an imperfect reference effort – meaning that even if all of the stars are in alignment, there can still be legitimate delays to the process. Instead of getting impatient with your candidate directly, you can lay that off on the reference. This way, the otherwise excellent candidate is not tainted by a process that may unfairly eliminate him or her from candidacy. You may have noticed a theme throughout this thread which is that it is primarily incumbent upon the candidate to make your referencing life easier, but it is up to you to make absolutely sure that you are clear about what is expected of your candidate, and that is accomplished with solid formology and a simple but effective communication between you and the candidate at the outset. Once you have laid out the ground rules, it is up to the candidate to tell you whether or not he/she wants the job by making the job of qualifying him/her easy or hard, and it is a two-way street. Make it clear what you need to qualify them, and provide them with the tools to help you in your process and it will be up to them to determine how much effort they are willing to provide to make hiring them easier.
January
12
2012
As a Consumer Reporting Agency, APSCREEN is not authorized by law to purvey unverified information. APSCREEN has long led the fight against the use of Social Media in the hiring context for several reasons:
a. No consent is usually given to use Social Media by the candidate, unless an expressed consent is given for an “Investigative Consumer Report” which is the component of a background check that involves personal interviews to determine “mode of living.”
The incorrect assumption is that social media legitimately replaces in-person ‘mode-of-living’ interviews (which, in most states require a Private Investigators’ License), but in fact social media does not replace in-person interviews because the postings on social media sites are either anonymous, or pseudo-named, and do not provide an audit trail as to either the actual person-to-person statements made to the enquirer, or the veracity or corroborate-ability of the statement or posting. In essence use of social media in a hiring decision is factually akin to using rumor and innuendo, not facts to make a hiring decision. Many hiring managers will argue that social media is used only contextually, and is only one component in a series of components that go to the overall profile of a candidate. This reasoning, while seemingly sound is flawed because the social media component is not-factually based, nor verifiable, unless by the candidate as to his or her own posting.
b. In ANY hiring scenario a candidate should be given the opportunity to:
* Know what is being said about him/her
* Know who said it
* Be able to refute inaccurate information
* Have legal remedies available to them in the event that false information leads to an adverse event.
c. Postings by the candidates themselves are usually never intended to be reviewed in the hiring context, and since no specific consent is given, what may be information that the candidate posts for his friends may not what he might want a future employer to see, and without consent or the right to decline consent, his choices are removed. Further, if the candidate declines consent for social media review, a hiring manager could assume that the candidate has something to hide and may rule adversely in the hiring decision, solely for the purpose that declining consent assumes the position of lack of disclosure.
d. Finally, Social media is an unnecessary hiring toll because there are sufficient available verifiable ways to validate public, private and semi-private records available to the hiring manager upon which to determine candidacy.
While there are myriad reasons not to use social media in the hiring context, 50%+ of the HR Departments use this tool on a stealth basis because there are virtually no controls available under the FCRA.
It is APSCREEN’s opinion that HR uses social media at its own peril, since, as am Employment Screening Expert Witness since 1988, I can most assuredly advise that there are ways to determine if social media played a role in the adverse effect upon a candidate, and just as Negligent hiring is tantamount to potential horrible crimes in the workplace, Negligent Candidacy Elimination carries with it stark and sobering case law that supports significant monetary settlements and civil adjudications inuring to those so damaged.
January
10
2012
The EEOC received 99,922 charges of alleged discrimination in 2010, the highest number in recent history. As its workload has increased, the commission has sought greater funding so it can pursue cases in which employer hiring practices discriminate broadly against members of protected classes.
Those practices include using criminal background checks and credit-history checks to screen applicants. Also targeted: the refusal of some employers to hire people who are unemployed and searching the Internet for information about applicants.
Known within the EEOC as the “systemic initiative,” the program was a major focus of EEOC Chair Jacqueline Berrien’s statements in the commission’s fiscal year 2012 Congressional Budget Justification that was submitted earlier this year.
December
28
2011
Effective January 1, 2012, a new California law – Senate Bill 459 (SB 459) – imposes stiff penalties that range between $5,000 to $25,000 for the “willful misclassification” of independent contractors by employers “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” To read SB 459, visit: http://leginfo.ca.gov/pub/11-12/bill/sen/sb_0451-0500/sb_459_bill_20111009_chaptered.pdf.
December
21
2011
In reviewing Snell & Wilmer’s guidelines, the layman will gain a useful basic understanding of this area of the law. What is omitted is the primary legal ‘pursuit’ concept of respondeat superior which a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment. This concept drags most employers into the liability position, and is difficult to overcome, which makes conducting a thorough background check (not a cheapie database one) critically important.
It is upon this basis that I am usually hired as one of the longest serving Negligent Hiring/Retention/Training/Supervision Expert Witnesses in the U.S. in addition to starting one the oldest, continuously operated Factual Employment Screening company in the U.S., since 1980.
November
29
2011
Employee Locator is our popular locate service for HR Managers and Benefit Plan Administrators.
People often ask what is the difference between what we do and what other services can do, including the government.
So here is a matrix you can use to easily see how great Employee Locator is.
November
23
2011
Jason James Murphy, a convicted child molester, began cooperating with an LAPD investigation, as child protection advocates called for background checks for those with access to child actors.
October
20
2011
Well, there are a number of screening companies that ignore California Law, following only the Federal law which has lifted the time requirement. California is special in that it maintains a 7-year reporting limit on convictions and a violation of that rule is a big deal!
One other thing that is nebulous, as a practice in all states is understanding the “full adjudication” component of reporting criminal convictions.
Generally, it is mistakenly believed that the date of the conviction is what anchors the reporting date limit, but that is not correct. Actually, what is permissible is the reporting of convictions that antedate “full adjudication” by the 7-year period, not necessarily 7 years from the date of conviction.
That means, simply that if you are convicted of a crime on January 1, 1990, say for murder, and you serve 20 years, being released from prison, on January 1, 2010 that conviction is reportable since you were released from the court’s jurisdiction within the 7-year statutory reporting period.
Now, that can even extend further, if there is parole involved the way we at APSCREEN interpret the law is that a conviction is reportable 7 years from the date that the convicted party is released form court custody, meaning not only have they been released form prison, but have completed all court requirements including parole, and in many cases not until restitution is complete, IF the restitution is part of the release conditions from the court.
There are pitfalls to that, as well, since many screening firms mistakenly believe that the reporting period can actually be until 7 years from the date that the convicted person’s civil rights are restored, but that is also incorrect, as civil rights restoration is not automatic, it is a function of the person requesting that the rights be restored, and is not tied to any jurisdictional custody dates, or to the full adjudication date, or the date that the person was completely and unconditionally released from the courts custody and jurisdiction.
October
14
2011
A Case for Candidacy Determinant in the Wake of Bad Legislation
As someone who has been in the employment screening and credit reporting business since 1980, I have seen just about every attempt possible to thwart the use of credit reports in various settings as a candidacy determinant – especially the employment setting. Simply put, people continually try to outlaw credit reports for every reason imaginable because they work with deadly efficiency.
That said, most, if not all legislative attempts to ban the use of these incredibly valuable tools have failed because they become so watered down that the politicians are able to convince their constituencies that as long as they persevere, the law will pass. Such is the case with the new AB 22 law in California created several revisions and vetoes ago by Assemblyman Tony Mendoza and signed by Governor Jerry Brown over the weekend of October 8-9, 2011.
This bill has been presented to the Governor’s desk and has twice failed to garner the Governor’s signature until Jerry Brown came into office. Similarly, this one has virtually no teeth when the real measurements are made.
This legislation, like most of the knee-jerk liberally biased legislation in California, was accomplished by Assembly Member Tony Mendoza, the architect of the definitions of those areas where credit reports are no longer available in the pre-employment setting. One can only imagine what went on his mind when the NEW governor finally signed the bill after two failed attempts with the old governor!
The new law hailed by those out of the know prescribes specific areas of defined use until it gets to Chapter 7, which is the gaping loophole for most employers, and for most employment positions available in California.
Now, usually, as a guy that takes the law very seriously, I cannot help but be drawn to what some may consider the dark side, and want to advise California employers of ways around this effectively useless law (the way it is presently written) and to provide specifically the ways in which people who hire can avail themselves of this still viable and highly valuable candidacy determinant.
Let’s begin with what may and may not be used in the hiring context with regard to what is included in an employment credit report.
Actually, you can read the context of the law at the following site: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0001-0050/ab_22_bill_20111009_chaptered.pdf so it is easier to simply tell you what part of an employment credit report may not be used, and that part is what many that presently use credit reports don’t use anyway, namely the trade line information, or, as the new law reads:
(1) “Consumer credit report” has the same meaning as defined in subdivision (c) of Section 1785.3 of the Civil Code, but does not include a report that (A) verifies income or employment, and (B) does not include credit-related information, such as credit history, credit score, or credit record. “
Clearly, as long as what a prospective employer sees does not include credit history (actual payment history) and a credit score (you know what that is, namely a FICO score, which incidentally has been excluded from ALL Employment Credit Reports from the three major credit bureaus ever since “Employment Credit Reports” were invented), or “credit record” which is the same thing as “credit history,” the rest of what is included in an Employment Credit Report is still available, and that is VERY important.
In practice, unless certain jobs require an actual understanding of the payment history of a candidate, most employers presently opt of using the payment histories. Instead they choose to use the parts of the credit report which are very important, namely the identification part and the past employment part, especially when it comes to trying to verify an applicant’s prior employment history, and in determining what the candidate’s identities actually are, versus who they say they are; which is critical in the determination of prior criminal conviction history.
In essence what this new law has done is take away mostly what employers don’t care about anyway; namely the actual payment history unless the job calls for it such as an accountant, cash handler, etc. Remember, credit “scores” have never been available to employers, so that part of the law is moot – yet another example of uniformed politicians trying to make policy based on incorrect information and assumptions.
Now, let’s look at the best possible gift that this new law has to offer employers, namely paragraph 7 of Labor Code Section 1024.5, Section. 2. Chapter 3.6 which is one of the further identified areas where these reports are available to a prospective employer:
“(7) A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information..”
I don’t know about you, but as a 31+ year businessman, my competitive edge has always been the way I do things in my business. That means that when I hire someone, I don’t want them discussing ANYTHING with my competitors or anyone else as it could compromise my competitive edge and put me out of business.
That said, how do I (as the law specifies) protect my “confidential or proprietary information including a formula, pattern, compilation, program, device, method, technique, process or trade secret”?
The answer is simple … with a proprietary and trade secrets agreement as well as a germane company policy that is acknowledged by every one of my employees.
What, you say? These types of agreements are unenforceable in California? Well, that may very well be true, but the very existence of them while not always enforceable establishes beyond any reasonable doubt what you as an employer decides meets the standard of confidentiality and that directly translates to Paragraph 7.
In essence, who can successfully argue that I do not have the right to reasonably determine what parts of my business are confidential and proprietary? The answer is NO ONE can determine that, except me (or potentially a court) since I own and operate the business, and I am the one who can only determine what confidential and proprietary methods and processes would be damaged if they were to be unlawfully or otherwise disclosed to a third party.
This clearly proves that with such an agreement and policy in place, specifically designed and intended to protect yourself and/or the business, and that specifically delineates what was confidential and proprietary, that’s all you need to effectively be able to use credit reports in the hiring process for most if not all of your candidates.
That said, it is important to understand that the Mendoza law is essentially focused on relieving the stress on those who pose credit risks with regard to the general employment populous, namely blue collar jobs, and “lesser” skilled positions where a bad credit report shouldn’t really apply. Contrary to the mistaken beliefs of Governor Brown and Assemblyman Mendoza, most employers are not concerned with a janitor’s credit report.
In the end, the way to continue to use employment credit reports is to follow the law, use everything in the credit report except the payment history, and create a solid trade secrets and proprietary and confidential information policy and agreement with your employees that formally establishes that what you have is sacred and could result in the loss of business if compromised.
Once established, using employment credit reports is not a problem as long as you give proper notice to the Consumer, obtain written consent, follow the FCRA’s Pre-Adverse and Adverse Action Notice Requirements and rely only on the ID components and the employment histories, when the actual credit history does not apply.
September
13
2011
We’ve been providing comprehensive background checks for pre-employment screening for a long time and we wanted to share the top 5 tricks employment applicants are using to cheat drug tests. These pose real risks to employers and could lead to negligent hiring lawsuits.
- Rapid Detoxification — Many applicants will ingest anything from high quantities of cranberry to pickle juice, herbal concoctions and other digestive aids to cleanse the system. However, most drugs contain metabolites that stay in the body for several days and can be detected regardless of what they take to disguise the drug’s profile.
- Shy Tester — Some applicants try to avoid the drug-screening by showing up and claiming an inability to produce the required amount of urine. This way, the tester can try to secure the position first, hoping the drug screen slips through the bureaucratic cracks. But patience is a virtue and we make the applicant wait up to three hours and even then an applicant unable to provide a specimen is asked to provide a medical explanation for their inability to void a specimen. The absence of a medical explanation results in a refusal to test which has the same consequences as a positive test.
- The Switch — One of the most popular tricks is for an applicant to attempt to submit a ‘clean’ sample which did not come from their own body. Our process includes a step-by-step authorization, as well as a blood and urine screen, that immediately flags a sample if certain criteria, odd temperatures or unusual activity is noticed. We’ve even caught applicants trying to use unique prosthetic devices. The laboratories test every specimen to determine that it is in fact normal human urine.
- Pleading Invasion of Privacy — Another common strategy is for an applicant to deny the employer consent to the drug-screening, hiding behind an ‘invasion of privacy’ claim. A strict well-written company policy requiring the testing will hold up in all courts throughout the United States as grounds for not hiring someone or releasing someone from employment. Besides drug testing, APSCREEN uses every other service at our means to double check the applicant’s use of money, credit, neighborhood references, driving and criminal activities among other ways to identify if the applicant is hiding a problem. When we deliver the complete report, the employer can make an educated decision about hiring the individual.
- The Waiting Game—Other testers will concede to the drug-screening but ask for up to 90 days before showing for the test. This is a red flag that shows the applicant could be ‘dirty’ and needs time to clean up. Our process recommends the applicant be tested immediately upon being notified of selection for testing. Any delay caused by the applicant is duly noted and supplied in the final report.
According to the University of Buffalo’s Research Institute on Addictions, nearly 19 percent of on-the-job fatalities, the person dying tests positive for alcohol, drugs or both. Additionally, the federal government estimates that 71 percent of illegal drug users are employed. The Department of Transportation requires workers in the airline, railroad, trucking, pipeline, mass transit and shipping industries be regularly tested for drug use. Other non-regulated industries across the country are implementing drug free workplace programs at the request of employees in order to ensure a safer working environment.
We envision a ‘drug-free workplace’ for the safety and betterment of our economy. Our drug testing service administered by Florida Drug Screening and is Nationally Accredited for Administration of Drug and Alcohol Testing Programs (NAADATP) – a unique certification received by only 65 providers in the United States from the Drug & Alcohol Testing Industry Association (DATIA). We adhere to the highest level of service and legal compliance available as with all our services.
According to Joe Reilly of Florida Drug Screening, the key to identifying the ‘cheaters’ is consistent specimen collection procedures and use of laboratories certified by the United States Substance Abuse Mental Health Services Administration (SAMHSA). Reilly is currently the Chairman of the Board of Directors of the Washington DC based Drug and Alcohol Testing Industry Association (DATIA).
“This includes emptying of pockets, no overcoats or purses, or pocket books brought into the collection area, securing all sources of water, checking temperature of the specimen, observing for sights and sounds indicating falsification; and laboratory testing for adulteration and substitution,” – Joe Reilly
Reilly also said numerous Federal and State laws regulate the drug-screening industry and we like to keep our clients up to date on any specific changes that may be impacting the service.
Thomas Lawson is a Certified Fraud Examiner, Certified International Investigator and Expert Witness for lawsuits regarding negligent hiring, human resource management/compliance, employment screening as well as use, interpretation and compliance of FACTA/Fair Credit Reporting Act/CCRRA/Gramm-Leach-Bliley (Financial Privacy) Act in the HR Context.
