by Natalie Beck

Effective tomorrow, a new law will go into effect in the state of Florida called Florida’s Ethics in Education Act. This act calls for the re-screening of all Florida teachers to ensure there is nothing in their past that should have disqualified them from employment. Many are concerned that this law will lead to the dismissal of good employees who may have been convicted of criminal activity long ago (with a clean record since) and these dismissals could lead to a multitude of lawsuits.

While we fully support the re-screening of current employees to make sure they keep out of trouble, we also encourage the proper handling of the information one may find. This is a situation where both the state and the individual school districts really need to have all of their ducks in a row. Before any of these teachers are terminated, these employers must make sure that the offense(s) found on the background check can legally be used against the employee. If the case is too old, is a non-conviction, or activity that does not directly pertain to the employee’s job responsibility, it may not be something that can negatively impact the employment of these teachers. In some instances, what is found (depending on the search method) may not be something the employer is even legally allowed to know about.

So, a word of caution to those making the final determination regarding the future of some of these educators – know your employment laws and apply them correctly. Otherwise, you could be in for many years of litigation.

Click here to read “New law calls for retroactive criminal checks of teachers”

by Jason Morris

Another reason to make sure your employment screening program is solid.  Its very important to ensure when doing an employment background investigation, your efforts are consistent and compliant.

Resume Fraud Discovered After The Fact Does Not Bar N.J. State Law Discrimination Case

The N.J. Supreme Court issued an important employment law case, Cicchetti v Morris County Sheriff’s Office, ___N.J.___(May 28, 2008). In a 50 page slip opinion involving a matter of first impression, the  Court held that “after-acquired evidence of resume fraud” will not bar a workplace discrimination claim or limit emotional distress or punitive damages under the New Jersey state anti-discrimination statute. Accordingly, a sheriff’s officer who failed to disclose an expunged conviction was not prohibited from pursuing his discrimination based claims. However, the court also indicated that evidence of the conviction can be used to limit or potentially eliminate economic damages, including claims for back pay and front pay if that information would have resulted in the employee’s discharge. The court basically followed McKennon v. Nashville Banner, 513 U.S. 352 (1995). As the court reasoned:

Rather, we conclude that, to the extent that plaintiff seeks an award of economic damages, including backpay and front pay, the McKennon analysis governs this dispute. That is to say, if the defendant employer can bear its burden of proving that it would have terminated plaintiff as soon as it learned of this expunged conviction, then that date may be used to limit any backpay award and to eliminate any front pay award. Finally, however, regardless of whether defendant would have fired plaintiff upon learning of the expunged conviction, plaintiff is entitled to pursue his hostile work environment claim and to recover the full measure of his non-economic damages including, if appropriate, a punitive award. For these claims, the public policy considerations expressed by our Legislature in our antidiscrimination statutes weigh heavily in favor of permitting plaintiff to have his day in court. The principles we further through the LAD demand no less.

More

by Jason Morris

This story seems very Sci-Fi, but very important to our future! Under this landmark legislation employers are unable to use genetic information to discriminate against employees.  Not that I ever saw the day coming but I guess I have a sense of relief knowing that employment background investigations will not include an analysis of your DNA.

President Bush Signs H.R. 493, the Genetic Information Nondiscrimination Act of 2008

Read the release from the White House Here

by Natalie Beck

The Governor of Georgia signed legislation today that will allow employees to keep firearms in their vehicles while parked on company property. Effective July 1, 2008, employers will not be able to restrict their employees from retaining firearms in their vehicles and will have no authority to search vehicles if firearms are suspected in an employee’s automobile. Of course, with any piece of legislation, there are exceptions to the rule. But from what I’ve read, it seems that most Georgia employers’ hands are tied. Granted, the legislation “generally protects employers from liability in criminal or civil action resulting from an occurrence involving the transportation, storage, possession, or use of a firearm covered by the law.” I don’t trust generalities – do you?

So, I take this opportunity to reach out to Georgia employers directly: Make sure you know who it is you are hiring. Conduct a thorough background check to make sure there is no history of violence in your employee’s past. The safety and security of those who work in and visit your offices (and even those passing by) is at risk.

Click here to read “Georgia Limits Employers’ Ability to Restrict Guns in Parking Lots”

by Jason Morris

More often than not we write our blog articles about background checks in relation to employment. In my opinion one of the most important laws we have in place today is the Brady Bill. The Brady Bill while still flawed in many ways has brought the concept of background checks to the forefront. Officially called The Brady Handgun Violence Prevention Act of 1993, it was signed into law by President Clinton in November of 1993. The act was named after James Brady, who was shot by John Hinckley, Jr. during an attempted assassination of President Ronald Reagan on March 30, 1981.

According to bradycampaign.org, a group devoted to prevent gun violence, the US Department of Justice has released some new figures.

The U.S. Department of Justice just released Brady background check figures for 2006, and they show continued success for this life-saving law:

• Almost 1.5 million prohibited purchasers have been denied at the point of sale since 1994.

• Between 1999 and 2006, 11,058 denied purchasers were arrested by the authorities after they attempted to purchase a gun, with 1,314 arrests in 2006 alone.

• Nearly 40% of the denials in 2006 involved individuals with felony records attempting to purchase firearms. (In fact, 6 out of every 1,000 applications in 2006 were made by felons.)

• From 1999-2006, 183,714 NICS denials were appealed, or 15.5% of total denials during that period (almost 1.2 million), and of those appeals, only 65,695, or about 5.5% of total denials, were reversed.

More

by Jason Morris

March 28, 2008

Rejecting Applicant with a Felony Conviction: Illegal?

Do state and federal antibias laws protect employees or applicants who are convicted of a felony offense from discrimination? A federal court sitting in Pennsylvania recently considered that issue.

What happened. A man who had pled guilty in New York State in 2004 to one count of Attempted Dissemination of Indecent Material to a Minor in the First Degree (a felony) applied for a job at the Wal-Mart store in Wilkes-Barre in July 2007. Wal-Mart managers interviewed him and offered him a job as a cashier, pending the outcome of a background check and drug test. At some point during the interview or shortly thereafter, Wal-Mart told the applicant that he would not pass the background check because of his prior felony.

by Jason Morris

This morning I came across another article regarding new public access rules developed by the Oklahoma Supreme Court.  employeescreenIQ and many members of the National Association of Professional Background Screeners (NAPBS) are working hard to reverse this decision before June when it takes effect.  Background check results would be severely impacted if this policy stands.

Court’s new record policy would affect background screening business

By M. Scott Carter

Transcript Staff Writer

OKLAHOMA CITY — New public access rules developed by the Oklahoma Supreme Court would make it more difficult for companies that do prehiring background checks, officials with those companies said this week.