April
11
2012
The Federal Trade Commision Release a report that recommends businesses adopt best practices to protect consumer privacy. The report also suggests that Congressconsider enacting data broker legislation.
The FTC is calling on data brokers to be more transparent in their operations, as well as to disclose how they collect and use consumer data.
The FTC is also supporting legislation that provides sconsumers access to information about them held by data brokers.
April
10
2012
Recruiters want to know the best advice for their clients who are choosing to use social media for the purpose of employment screening.
The use of social media resources can arguably be the basis of a negligent hiring claim. Employers are up against multiple pitfalls including privacy, discrimination and accuracy issues.
So what is the best advice for employers wanting to use Social Media for screening their new hires?
1. Every employer should have a social media policy for current employees and new hires.
2. HR managers must be keenly aware that just because certain information is online does not mean it is risk free or even true. The lack of verifiability of this information is the riskiest part of using it to screen employees.
3. HR managers should use a national sex offender registry search as a “due diligence” tool and search for things such as inappropriate sexual behavior that would cause concern for hiring positions around children, field personnel, etc.
4. Some of the possible landmines to be aware of are (double edged sword!):
-Allegation of Title Vii discrimination claims regarding race, color, sex etc. if the candidate does not get the job.
-Failing to use social media websites – companies can potentially be sued for not exercising due diligence if dangerous information could have easily been obtained about the candidate.
-Be aware of online identity theft that could cause false information to appear about someone.
-Reasonable expectation of privacy is a subject still being sorted out by the courts, so an area to be cautious of.
-If you are using a third-party provider for your background checks, the same FCRA compliance laws apply to the use of social media searches. In fact, it very difficult for these firms to prove anything so it might be better not used for this purpose.
-Potential FCRA claim for inaccurate information.
April
3
2012
San Luis Obispo Superior Court officials have shut down a public computer station that contained case data, citing privacy concerns, because certain information in the court’s outdated system was exposed to background checking contractors, among others.
The recent closure of the public computer, containing court case records, has led to criticism that certain information that can be made public now is less accessible.
The court removed the terminal March 19. It had allowed searches of data such as criminal and traffic records.
Those seeking information about cases now must request information at the court’s service windows at 1050 Monterey St., and there are limits on how many names at a time can be researched.
Court Executive Officer Susan Matherly said the database was set up initially to be shared by court staff and law enforcement agencies, and previous administrators allowed the information to be made public.
Legally protected data stored in the DOS-based system includes details on a person’s age, gender and ethnicity — as well as identities of crime victims.
Citing the California Rules of Court, Matherly pointed to concerns with the database and how case information was used by those seeking to sell it.
“If a case that has been dismissed by the court against someone, for example, is used against them when they’re applying for a job, what kind of justice is that?” Matherly said. “One of the problems I have is that we just don’t know where this information is going and how it’s being used.”
April
2
2012
In response to the controversy surrounding the practice of employers requesting Facebook log-in information from both current and prospective employees, the social network has made itself perfectly clear: Facebook will protect your privacy — even if it means going to court.
In a March 23 note on the social network’s Facebook and Privacy page, Chief Privacy Officer for Policy Erin Egan addressed the issue directly, explaining that the practice “undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.”
The “legal liability” of which Egan speaks could arise from claims of discrimination against an employer who may have seen that a prospective employee is part of a specific “protected group (e.g. over a certain age, etc.)” and consequently does not hire them, or if an employer is exposed to certain information (e.g. suggesting that a crime has been committed) and is unaware of how to proceed.
March
28
2012
On March 1, 2012 a Medford jury rendered a verdict in a wrongful death case against a broker for $10,000 in non-economic damages (aka pain and suffering) and $1,678,000 in punitive damages. Although the jury also found the driver liable for $40,000 in non-economic damages and $3,471,000 in punitive damages, the lessons to be learned from the case are for brokers and shippers. Facts. Nestle Waters North America, the shipper, had a Shipper-Broker Contract with Heyl Logistics. (NOTE: All references to “Heyl” are to Heyl Logistics, not Heyl Trucking.) Heyl had a Broker-Carrier Contract with Eric Rangeloff, dba Washington Transportation. Nestle tendered a shipment to Heyl, Heyl tendered it to Washington Trucking, and Washington Trucking tendered the shipment to Forrest Rangeloff, Eric Rangeloff’s twin brother.
After picking up the load from Nestle in southern California and transporting it to the yard, Washington Trucking gave the shipment to Dan Clarey, its driver, to deliver to Portland. While crossing the Siskiyou Summit, Clarey started to fall asleep at the wheel, clipped the mirror of another truck, jolted awake, and pulled hard to the right and hit the rear of a trailer being pulled by Kelly Linhart, another truck driver who had stopped on the shoulder, causing the trailer to hit Mr. Linhart, killing him instantly. Clarey admitted, and tests confirmed, that he had methamphetamine in his system. Clarey subsequently pled guilty to criminally negligent homicide and driving under the influence and was sentenced to several years in prison.
It is important to point out that Ron Brown, dba I & J Transportation was named as a defendant because it previously leased equipment from Forest Rangeloff, dba Range Transportation and provided service under I & J’s FMCSA authority and USDOT numbers. However, Ron Brown had terminated the equipment lease and sent a fax to Forest Rangeloff declaring the termination. In addition, Ron Brown reported Forrest Rangeloff’s theft of his FMCSA and USDOT registrations to both the Lake Havasu and Los Angeles police and to Internet TruckStop. Nevertheless, at the time of the collision, the equipment Clarey was driving was identified with I & J’s MC and USDOT numbers.
The Linhart Estate sued Nestle, Ron Brown, dba I & J Transportation, Eric Rangeloff, Heyl Truck Lines, Heyl Logistics and Clarey. At the time the case went to trial, the defendants remaining were Heyl Logistics and Clarey. Ron Brown, dba I & J Transportation settled before trial, but its name remained on the verdict form for purposes of allocating fault. Although we do not believe he settled, Clarey did not actively defend himself and we presume that his name was on the verdict form for purposes of allocating fault. The Verdict. The jury found Clarey 80% at fault, Heyl Logsistics 20% at fault, and Ron Brown (I & J) 0% at fault. No economic damages were awarded, but $50,000 in non-economic damages were awarded, meaning (under Oregon law) that Clarey was liable for $40,000 and Heyl was liable for $10,000). In addition, the jury imposed $1,678,000 in punitive damages against Heyl and $3,471,000 in punitive damages against Clarey.
March
20
2012
Dear readers: I came across this email pasted below and thought it is something you all should be aware of.
Just when we thought it was safe to go back into the water, here is what I predict to be the first in a new area of Plaintiff’s pursuits:
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Law Offices of Devin H. Fok
Employment and Background Remedies
We represent people with criminal history who have been wrongfully denied employment with a California employer (or housing facility) due to a background check report. You will be entitled to a minimum of $10,000 if you have lost a job (or housing where applicable) due to:
1. A background check report that reported arrests not leading to conviction.
2. A background check report that reported crimes that have been expunged.
3. A background check report that reported crimes that are older than 7 years old.
4. A background check report that reported adverse driving history that are older than 7 years old.
5. A background check report that misreported a crime for which you were never charged.
6. A background check report that misreported the seriousness of the crime (i.e., misdemeanor reported as felony).
7. You were denied employment due to minor crimes that are not relevant to the job to be performed.
8. The employer failed to give you an opportunity to give you a copy of the background check report or an opportunity to dispute the information on the background check report.
9. A background check report that reported convictions for which you have successfully completed post conviction diversion or minor marijuana convictions that are older than 2 years old.
If you have received a copy of the background check report within the last 2 years that falls into one of the above categories, please scan and email the report tous for free evaluation and consultation. Your information will be kept strictly confidential. We will give you a response within 48 hours.
Our fees are 100% contingency. We do not charge unless you get paid.
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March
15
2012
Social Security Number (SSN) verification is one method that is used for employment screening purposes because it allows employers to verify the information submitted by a prospect employee with official Social Security records, as well as other information sources.
It is most effectively used in concert with other methods of Positive Candidate Identification, in order to assist the decision-maker in determining if the applicant has been truthful and forthcoming in the presentation of their full and/or alias names, prior addresses, and prior experience.
A social security trace obtained from multiple sources. Never rely on one source for this, as the sources vary in depth of reporting, update status, and in the case of the information coming from the SSA, directly, the extent of RELATED information, which can only be cross-attributed by proprietary providers of wide-spectrum identification information. Identifying the candidate is the most vital first step in conducting employment background checks. It verifies a candidate’s:
-Social Security Number as legitimate,
-past and present addresses, as well as
-possible aliases or maiden names used
This search also establishes the time frame of when the social SSN was issued and put into use. These identity searches verify that the social security number (SSN) is valid; in what state it is issued, as well as whether or not to is actually registered to your candidate.
A SSN trace, combined with companion identity searches, such as driver histories and other private, semi-private and public record searches, is essential for uncovering a candidate’s possible criminal record(s).
These identity searches also reveal your candidate’s documented residence history and tells you where to search for criminal records. In many cases competent identity searches, combined with wide area, proprietary criminal index lead generators can even identify criminal activity in areas that the subject did not reside in, a valuable tool for “hit and run” criminal acts.
Restrictions on Use
Company policy concerning the use of Identification products should be applied consistently to all workers; for example:
-If used for newly hired workers, verify information on all newly hired workers.
-If used to verify information on other workers in your database, verify the information for all workers in the entire database.
March
14
2012
It’s official, according to the latest EEOC presenter at Mid-Year meeting of the National Association of Professional Background Screeners in Orlando, Florida the EEOC and government decision-makers will not hesitate to look you straight in the eye and tell you that criminal conviction checks should be eliminated from the determination of employment candidacy in the American workplace. This isn’t an issue of trying to keep Tom Lawson, CALHR member in business, this is an issue of protecting your right to protect yourselves from hiring dangerous or otherwise undesirable people.
It is patently clear that the EEOC has declared war on the background check industry and the American workplace and started with an easy target, which are employment credit reports . Several States have outlawed or severely restricted the use of employment credit reports in the hiring context as a result of their efforts.
The next step in their goal planning is to outlaw criminal conviction reporting, altogether, and that will summarily remove the single most valuable tool in the hiring managers’ toolbox to effectively limit the hiring of undesirable persons; exposing customers, co-workers and visitors to potential danger in the workplace.
Ignoring most Consumer Reporting Agencies and end-users’ careful and judicious adherence to the laws surrounding the reporting and use of criminal records and other decisional criteria, the EEOC’s internal mandate in my view is to outlaw criminal convictions, either through inference, adverse public commentary, negative press or outright false positioning.
In essence, the EEOC’s agenda strives to make the employer the receiver of bad hires by constructively eliminating the meaty and most effective components of background checks, namely conviction checks and credit reports .
Why, you ask? Clearly, screening candidates has worked with swift and accurate results, and in many quarters, the statistics reflect a growing population of what the EEOC likes to infer are “unemployable” prior offenders. They want to get rid of that, and as a result, the employer, employees, vendors, visitors and customers of American private enterprise will bear the vertically increasing burden of exposing its customers, vendors, visitors and workers to the heightened risk posed by hiring criminals.
Now what is unfair to me is the EEOC’s failure to address the issue of American private industry being subjected to higher scrutiny in the conducting of background checks while the government is exempt. Why won’t the EEOC or other government agencies simply suspend the use of background checks for their own positions?
In my opinion the EEOC wants to see the burden of employing undesirables placed on the backs of the American business community, and society, not the government.
Contact your Congressperson, Senator and the appropriate officials in your state government and ask them to oppose ANY legislation at the State, or Federal level that prevents business people from protecting themselves through the use of background checks, or any other method designed to thwart the efforts of honest business people to protect their employees, customers, vendors and visitors.
Here’s how to get hold of your Representatives and Senators:
https://writerep.house.gov/writerep/welcome.shtml
http://www.senate.gov/general/contact_information/senators_cfm.cfm
March
12
2012
Yesterday an Oregon jury returned a large verdict against a trucking brokerage company for its negligent hiring of a drug addict. The jury awarded over $5 million, including punitive damages, to the family of a man killed in 2008 because the broker failed to do any due diligence when it hired Washington Transportation to hire drivers to haul goods for bottled water giant Nestle Waters.
The jury was swayed by the fact that the truck driver was coming off a crystal methamphetamine high and fell asleep at the wheel when he crashed his 18 wheeler into the deceased man, who was standing beside his own tractor-trailer inspecting its brakes.
The key evidence was that the trucking broker negligently hired a man who claimed to be operating for Washington Transportation, when it was a company owned by his twin brother. Further, the broker did not carry insurance and had no legal operating authority, statutory violations which had repeatedly occurred in the past. Tje company had no legal authority to transact trucking business due to its repeated and flagrant disregard of the Federal Motor Carrier Safety Administration rules and regulations.
The at fault truck driver served time in prison for negligent homicide and driving under the influence. The trucking broker is no longer in business.
I have handled similar cases where individuals have tragically been killed or seriously injured by commercial truck drivers and have collected damages for the negligent hiring, negligent supervision, and negligent retention against the trucker’s company. However it has been difficult to prove negligence against the trucking broker. Here is a new case I will be able to argue, even though it is from an Oregon federal district court.
March
12
2012
The California Supreme Court issued a decision yesterday in C.A. v. William S. Hart Union High School Dist. (May 8, 2012, S188982) __Cal.4th__, ruling that school districts may be held liable if a supervisory or administrative employee is found to have negligently exposed a student to a foreseeable danger of molestation by a school employee.
A high school student, C.A., filed a complaint against his guidance counselor and the school district, alleging that the counselor sexually harassed and abused him while he was a 14 to 15 year old student. C.A. alleged that supervisory employees of the District knew that the counselor “had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct.” C.A. alleged that his injuries arose, not only from the molestation, but also from the failure of the District to properly hire, train and supervise the counselor and prevent the counselor from harming him.
Under the doctrine of vicarious liability, employers can be held strictly liable for the negligent acts or omissions of their employees for acts committed in the course of their employment. In this case, the issue before the Court was not whether the District may be strictly liable for the conduct of the counselor, because the counselor’s conduct was outside the scope of her employment, but rather, whether the District may be held liable for the negligence of supervisory or administrative personnel who allegedly knew, or should have known, of the counselor’s propensities and nevertheless hired, retained and inadequately supervised her.
