by Jason Morris

Does your employment screening firm hold the appropriate licensing in states such as Nevada? There are over twenty (20) states that arguably have Private Investigators licensing laws related to employment screening. Many don’t require you to be licensed if you don’t operate your business or have an office in their state. While others only require you to have a license in the state(s) where you do operate. Nevada is a rare exception. They require screening firms to be licensed by their state if you have any clients there and,or if you are performing any research there. This research could include contacting a University or Employer in Nevada by telephone for a verification. The law in Nevada is very specific:

In Nevada, no unlicensed person may “engage in the business of private investigator” or “advertise his business as such, irrespective of the name or title actually used.” N.R.S. § 648.060. Compliance with the statute and regulations is monitored by the Private Investigator’s Licensing Board (“Board”). N.R.S. § 648.030. The penalties for engaging in the business of private investigator without a license are stiff: (1) a first offense is a misdemeanor; and (2) second or subsequent offenses are gross misdemeanors. N.R.S. § 648.210. Accompanying fines range from $2,500 (first offense) to $10,000 (three or more offenses) per violation. N.R.S. § 648.165. Even a single act of private investigatory work by an unlicensed individual is considered a violation of the statute. N.R.S. § 648.063.

The Nevada board interprets the statute to require that a corporation obtain a license even if it operates through a licensed private investigator with whom it has entered into an independent contractor agreement. When posed with this scenario, a board official stated that the corporation would still be regarded as engaging in investigative activity subject to the licensing requirements. Many States have adopted statues specifically excluding Consumer Reporting Agencies (CRA’s). Ohio, our home state, is a great example:

Ohio Revised Code; Title XLVII, Chapter 4749; § 4749.01. Definitions (H) “Private investigator,” “business of private investigation,” “security guard provider,” and “business of security services” do not include: (3) A consumer reporting agency, as defined in the “Fair Credit Reporting Act,” 84 Stat. 1128, 15 U.S.C.A. 1681a, as amended, provided that the consumer reporting agency is in compliance with the requirements of that act and that the agency’s activities are confined to any of the following: (a) The issuance of consumer credit reports; (b) The conducting of limited background investigations that pertain only to a client’s prospective tenant and that are engaged in with the prior written consent of the prospective tenant; (c) The business of pre-employment background investigation. As used in division (H)(3)(c) of this section, “business of pre-employment background investigation” means, and is limited to, furnishing for hire, in person or through a partner or employees, the conducting of limited background investigations, in-person interviews, telephone interviews, or written inquiries that pertain only to a client’s prospective employee and the employee’s employment and that are engaged in with the prior written consent of the prospective employee.

When doing RFP’s for background screening companies or when you are simply giving your process a “chest x-ray” (Thank you Thomas Friedman - The World is Flat) , be sure to inquire if the proper licensing is in place. While we don’t agree with the law, and either does the industry association NAPBS, we have been unable to challenge it. In 2005, NAPBS did a position paper on the subject. The general consensus was that they agree with PI licensing laws for those in the field of Private Investigations. We don’t believe employment screening should fall under this umbrella. Without getting too technical, PI’s develop information about subjects. CRA’s are given written authority and verify information that is provided. employeescreenIQ is licensed in the state of Nevada to perform Private Investigations and thus Employment Screening. Is your provider?

by Jason Morris

My twenty part series on Employment Screening 101 has come to an end! The theme of the series aside from the obvious is accuracy. Answering the question “do you conduct background checks on your employees” is usually an easy question to answer. The difficult question is “are you screening your employees properly?”

Through this series we have taken a look at most facets of a quality employment background check. We started with the first step, The Social Security Number Trace and journeyed through the different types of criminal searches. Beyond criminal records we discovered the many areas of a resume that need to be verified and ended with some very specific types of background investigations. It is hard for me to quantify which particular search is more important than the other; to me they can all be equally important depending on the job responsibilities. Albert Einstein once said “If the facts don’t fit the theory, change the facts.” It’s more important than ever to look beyond the job application and truly verify every aspect of the candidates’ history.

Every presentation I have ever given has started with a famous quote by Aldous Huxley “Facts do not cease to exist because they are ignored.” At employeescreenIQ our passion for what we do is exemplified in this quote because, we know the facts and that’s why we exist!

by Jason Morris

Throughout this series we have discussed the many components of a background check. We have talked about a myriad of the services provided by employment screening firms and special searches that are required for various industries. We have not talked about what to do with the results once you receive them. Compliance, both State and Federal, are a series on their own and will be discussed in the coming weeks.

Results can be tricky and one must take great care in adjudicating them. It’s very important that employers carefully review negative results and ensure that information used against a candidate does not violate State and/or Federal Laws and mandates. One must consider the weight and gravity of the offense and be careful not to make ‘bright line’ hiring decisions. It has been argued that using a hiring matrix or having your employment screening firm adjudicate results could be a slippery slope in that area. (See Douglas El Vs. SEPTA)

Recently Nick Fishman wrote:

A criminal conviction will not necessarily be a bar to employment; rather, such information is only relevant in determining whether the conviction is directly related to the job for which you are applying. Factors, such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account.

Many states have similarly legislated (or have included in regulations or guidance) that the elements of a crime for which an individual was convicted must be “substantially related” or “directly related” to the job duties of the position sought. Applying a matrix subject to the deficiencies described above is inconsistent with this goal because matrices do not allow for extenuating circumstances, deviations or mistakes that often occur when evaluating the employability of applicants or employees. Moreover, matrices by definition preclude the detailed case by case analysis often required to overcome the disparate impact on minority groups that inevitably results from criminal background screening. Thus, the employment of an adjudication module created to apply consistency and objectivity actually may result in inconsistency in the hiring process and most likely will violate federal and local laws and regulations.

I am a big believer in using the results as a tool in the hiring process. HR Managers, Recruiters and Security Professionals should review all background results and make sure that the decisions they make are fair, legal and consistent. If adverse action will be taken be sure to follow the pre-adverse and adverse action process as defined by the FCRA. (More on this in a later series). Failure to properly follow this well defined model could result in lawsuits and fines by the FTC. We have several articles on this subject; please visit employeescreen University for more information. Every organization is unique in their hiring needs and practices. As a hiring manager, you know what is important to your organization and cannot entrust the decision-making responsibility to anyone outside of it. Formulate an opinion of the candidate based on the application, resume, interviews, test results, and the candidate’s assertions of skills, experience, aptitudes, character traits, and moral compass. Once you’ve decided this person is the prime candidate to fill the position, use a background check to ensure these criteria withstand impartial scrutiny. Every individual that you consider for employment should be judged on their own merit, strengths and weaknesses, by someone in the hiring organization that can consider the complete individual as the sum of each piece of information available.

by Jason Morris

IQ Review is a perpetual screening program designed for our clients’ current employees. IQ Review was launched last month and the response has been overwhelming. Issues such as workplace violence and employee theft have led employers to want to expand their employment screening program to their current workforce.

While a comprehensive pre-employment background check allows you to make an informed hiring decision and reduce risk in the workplace at the time of hire, it can only provide insight into information available at the time of the background check.

For security conscious organizations, IQ™Review provides assurance that valued employees continue to represent the same professional standards and character demonstrated at the time of hire.

Services offered for IQ Review are:

• Countywide Felony and Misdemeanor Search
• Federal District Criminal Search
• National Database Criminal Record Search
• Motor Vehicle Record Check
• Sex Offender Registry
• Homeland Security Check
• Infinity Screening

For most of these searches it is only necessary to search in their current jurisdiction. Perpetual screening will become more important in the coming years as workplace violence and negligent hiring lawsuits continue to make the news!

by Jason Morris

Ever peel an onion? I hate the saying but in many ways peeling an onion is like setting up an employment screening program for an organization. In various sections of this series, Employment Screening 101, we have discussed different services to use when screening your candidates. What we have yet to discuss are the industries where very specific services and/or process must be followed. This discussion will not be all inclusive; I will use a few examples so feel free to contact us if you need more information.

Several industries require certain services and others require very specific processes when ordering the background checks. A few of these industries include: Aviation, Transportation (DOT), Insurance, Banking, Heath care and Energy to name a few. One must be very careful to make sure all regulations are being followed and results are being adjudicated accordingly.

Some industries are quite simple. The Insurance industry requires a “lifetime search” due to the Insurance Fraud Prevention Act. This act is part of an Omnibus Crime Bill, the Violent Crime Control and Law Enforcement Act of 1994. (18 U.S.C. § 1033). For our purposes the act is specific where it does not allow work in the insurance field after conviction of a crime involving dishonesty. However, the act fails to specifically lay out these crimes. In a nutshell a very comprehensive search must be done to uncover all crimes involving dishonesty for all years since the applicant or candidate was 18 years old. The results bring up an exciting argument of preemption but that’s a topic for a later date.

In aviation there are several mandates and federal laws that must be followed. Commercial airline pilots are required to have a very specific type of background check conducted. Among a slew of screening requirements are FAA Pilot Certifications, Pilots Records Improvement Act (PRIA) Searches, National Drivers Registry (NDR) Searches and a few more. (Listing and explaining all of these would be a series on its own).

Be very careful when setting up your screening program if you are in a regulated industry. Ensure that your screening provider can develop a comprehensive program that not only keeps your workforce safe but also is in compliance with any Local, State and/or Federal Mandates.

by Jason Morris

U.S. Employers have historically been overwhelmed by the cumbersome process of I-9 Forms and compliance with I-9 Regulations. Fines for inaccurately completed I-9 Forms range from $300 to $3000 per occurrence. The Immigration Reform and Control Act (IRCA) mandates that U.S. employers authenticate the employment eligibility status of newly hired employees and makes it illegal for employers to knowingly hire or continue to employ unauthorized workers. As a designated agent for the Department of Homeland Security (DHS), employeescreenIQ ® can automate your I-9 process and allow your company to participate in the DHS E-Verify program. (Previously called the SAVE and/or Basic Pilot Program).

In a recent article on employeescreen University, Nick Fishman writes:

Ask any HR executive about their I-9 process and their eyes begin to water before they can spit the words out. Names spelled wrong, social security numbers don’t match, proper identification isn’t verified. Let’s face it, it’s a time consuming process that often is executed incorrectly and the penalties for lax policies are scary. The Immigration Reform and Control Act of 1986 mandates that US employers verify the employment eligibility status of new employees. Until recently, this was accomplished most typically by examining a few pieces of identification while hoping the ID documents were authentic, entering the relevant information on the I-9 form, and filing it away in the employee file. It was pretty much forgotten at this point unless and until the government decided to audit your I-9 files to make sure you were not employing illegal workers. Still, many employers are fined for incorrectly filling out the I-9, even though they are employing legal workers. There was no external oversight or feasible process available to gain assurance that you are indeed employing legal workers, or gain the peace of mind that your documentation was all in order every time.

What Can You Do?

Fortunately, this problem is common to all organizations and now employeescreenIQ offers Employment Eligibility Verification and Electronic I-9 Filing through our partnership with Form I-9 Compliance LLC. These tools can reduce your workload and keep you in compliance. The product that Form I-9 has developed allows employers the ability to fill out a “smart” I-9 form on-line that ensures it is filled out completely and correctly. From there, an employer can simply store the document in an on-line archive or can seamlessly and electronically verify employment eligibility instantly through the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Within moments the system will give you a confirmation of the employee’s eligibility or it will indicate a non-confirmation. In occurrences of non-confirmation, the system will walk the employer step by step through the error and illustrate how to resolve the issue. Some of the common issues may be resolved with a few keystrokes. Others require follow-up from both you and your employee; the Form I-9 system will send you regular reminders indicating the number of days your employee has to resolve the non-confirmation. If the non-confirmed employee fails to respond through the appropriate channels within the legally mandated grace period, or if employment eligibility is ultimately found ineligible for employment, the system will indicate that the employee must be terminated. You may continue to employ workers who have received the initial non-confirmation until their employment eligibility has been confirmed through these channels.

The system can also be used for re-verifications, such as when an individual legally changes their name or when a foreign employee’s Green Card expires and is re-issued. The system will track and notify you of upcoming expiration dates for workers without permanent authorization.

Program Features Include:

- Comprehensive and error free electronic I-9 form processing and storage

- Electronic signature module that is fully compliant with the E-Sign Act

- Integration of this electronic process into your background check results

- Instant confirmation of “Right to Work”

- Receive automated alerts 90, 60 and 30 days in advance of the expiration of employees work authorization documents.

- Automated Tentative Non Confirmation (TNC) compliance

Benefits

- Simplify and improve your I-9 process

- Mitigate your risk during I-9 Form Audits

- Allow your company to centralize and automate the entire I-9 Process

- Remove paper from the process

- Removes guesswork from I9 document review during the Form I-9 process

- Allows participating employers to confirm employment eligibility of all newly hired employees

- Improves the accuracy of wage and tax reporting

- Protects jobs for authorized United States workers

Many states are already mandating this process with twenty more states coming on board by the end of the calendar year. While not a part of the background screening process, E-Verify is a critical step in solidifying a reputable workforce. While lobbying with NAPBS® we have found a lot of support for a federal bill requiring full deployment of E-verify within five years. For more information on E-verify feel free to contact us: http://www.employeescreen.com/requests/freedemo.asp

by Jason Morris

As you know employeescreenIQ has always been on the forefront of our industry, setting trends and raising the bar in all areas of employment screening. Each year we come out with the “Top Background Screening Trends to Track” for that particular year. For the past few years a common theme has been Global Screening AKA International Screening, International Background Checks Etc.

While not a new facet of the industry, international background screening continues to gain in importance as U.S. companies open offices globally and/or recruit overseas candidates to work in the U.S.

I am not one to use clichés but one could say that we “Wrote the book on International Screening!” Last year we were asked by a major publisher to write a chapter for an upcoming book on Background Screening and Investigations. This book was just published and co-authored by myself and Nick Fishman.

Shameless plug – Book available at Amazon.com – Background Screening and Investigations – Barry Nixon and Kim Kerr.

Today, we are at an interesting crossroads for both U.S. and international screening. The advent of the internet has made access to and mobility of information easier than ever worldwide. This has resulted in great efficiencies, as well as unintended side effects, such as privacy violations and identity theft. In the U.S., these side effects have been addressed through federal and state legislation requiring a permissible use for the information and strict guidelines regarding information handling and ensuring accuracy and reliability.

Internationally, there are few standards in employment screening processes. From one country to the next, records maintenance capabilities, procedures, and rules for access vary widely. To begin with, the ability to access information in various countries is dependent on compliance with global information exchange rules for ensuring data security across international borders. One such compliance framework is the European Union’s Directive on Data Protection, which prevents the transfer of personal data to non-EU nations that do not meet the European “adequacy” standard for privacy protection. A select few U.S. companies, including employeescreenIQ, are Safe Harbor certified with the U.S. Department of Commerce to meet the requirements for international data exchange and privacy protection. (employeescreenIQ has been Safe Harbor Certified since 2004)

Companies must protect themselves from employees both foreign and domestic. Recently, A worker at HSBC’s Bangalore call centre has been arrested after being allegedly caught supplying personal details to fraudsters who went on to steal £230,000 from 16 of the bank’s UK customers. It not only happens oversees, we see it here in North America as well. A longtime Canada Post employee is accused of stealing hundreds of pieces of mail containing gift cards, cheques, CDs and DVDs over an eight-month period.

employeescreenIQ’s Global Screening Services are an important tool in an increasingly global business environment. As with our domestic services, you can trust employeescreenIQ to stay on top of the latest developments worldwide in accessing reliable, timely, and compliant information to increase the value of your hiring decisions.

For more information regarding international background checks and the valuable service employeescreenIQ provides, please visit us at www.employeescreen.com/global.

by Jason Morris

Imagine this, you hire a CPA as your CFO and he doesn’t know a CPA from a CAT. In the employment screening business we see this every day. Now maybe this is a radical example but people lie on their resumes every day; See Employment Screening 101: Education and Employment Verifications-Part 8. In fact we just posted a great article on employeescreen University called Liar, Liar, resume on fire.

An even more publicized event has Criminal Charges Lodged Against a Fake Attorney:

Brian T. Valery, the man who passed himself off as an attorney in two states and worked for a major New York law firm, will soon get to appear in a Connecticut courtroom. But this time, his appearance won’t be pro hoc vice in Stamford Superior Court. It will be as a criminal defendant.

Valery, 32, surrendered to authorities in Stamford on Jan. 10 and was arrested on charges of perjury, which carries a maximum sentence of five years in prison, and the unauthorized practice of law, a misdemeanor with a maximum two-month sentence.

The paralegal, who lied to his former employer — Anderson Kill & Olick in Manhattan — about attending law school and passing the New York bar exam, will be arraigned in Stamford Superior Court on Wednesday.

A simple verification of a professional license can save a company a lot of embarrassment. The services Includes a review and verification of professional license and registration status of any license or certification required by industry or organizational standards. A verification of all licenses and certifications provided by the candidate directly with the issuing or accrediting organization.

by Jason Morris

In the employment screening business sometimes we are faced with industries that require very specific searches. One of these searches is called an OIG (Office of Inspector General) GSA (General Services Administration) Search. Both of these are government disbarment list searches.

What does this mean?

In a nutshell, various industries are required to verify that a candidate is not on a government disbarment list of firms and individuals excluded by the Federal government from receiving federal contracts or federally approved subcontracts and from certain types of federal financial and non financial assistance and benefits.

According to the Government Services Administration (GSA) Website:

The EPLS (Excluded Parties Lists System) was established to ensure agencies solicit offers from, award contracts, grants, or financial or non-financial assistance and benefits to, and consent to subcontracts with responsible contractors only and not allow a party to participate in any affected program if any Executive department or agency has debarred, suspended, or otherwise excluded (to the extent specified in the exclusion action) that party from participation in an affected program.

Reference FAR Subpart 9.4 (Procurement Programs) and Executive Orders 12549 and 12689 and the Government-wide Nonprocurement Suspension and Debarment Common Rule [68 FR 66533] (Nonprocurement Programs) provide the guidance for using EPLS.

The EPLS is a Federal government system maintained by GSA as required by FAR Subpart 9.4 and Executive Orders 12549 and 12689. EPLS data is received and maintained by Federal debarring/excluding agencies only.

According to the Office of Inspector General (OIG) website:

For many years the Congress of the United States has worked diligently to protect the health and welfare of the nation’s elderly and poor by implementing legislation to prevent certain individuals and businesses from participating in Federally-funded health care programs. The OIG, under this Congressional mandate, established a program to exclude individuals and entities affected by these various legal authorities, contained in sections 1128 and 1156 of the Social Security Act, and maintains a list of all currently excluded parties called the List of Excluded Individuals/Entities.

Bases for exclusion include convictions for program-related fraud and patient abuse, licensing board actions and default on Health Education Assistance Loans.

The effect of an exclusion (not being able to participate) is:

· No payment will be made by any Federal health care program for any items or services furnished, ordered, or prescribed by an excluded individual or entity. Federal health care programs include Medicare, Medicaid, and all other plans and programs that provide health benefits funded directly or indirectly by the United States (other than the Federal Employees Health Benefits Plan). For exclusions implemented prior to August 4, 1997, the exclusion covers the following Federal health care programs: Medicare (Title XVIII), Medicaid (Title XIX), Maternal and Child Health Services Block Grant (Title V), Block Grants to States for Social Services (Title XX) and State Children’s Health Insurance (Title XXI) programs.

· No program payment will be made for anything that an excluded person furnishes, orders, or prescribes. This payment prohibition applies to the excluded person, anyone who employs or contracts with the excluded person, any hospital or other provider where the excluded person provides services, and anyone else. The exclusion applies regardless of who submits the claims and applies to all administrative and management services furnished by the excluded person.

· There is a limited exception to exclusions for the provision of certain emergency items or services not provided in a hospital emergency room. See regulations at 42 CFR 1001.1901(c)

Check with your employment screening firm to see if an OIG or GSA search is relevant to your industry.

by Jason Morris

Dear Loyal Readers,

Beginning Saturday April 12th I will be leaving for the National Association of Professional Background Screeners (NAPBS) conference in New Orleans, LA.  I will be at this conference until Wednesday April 16th. Due to my absence I will be unable to blog this series every day.  I look to continue this as a daily blog on Thursday April 17th.  However, you may see a few random “Employment Screening 101″ posts by others from employeescreenIQ or myself if I am able to post.

Future topics will include:

• Substance abuse testing
• FAA Searches
• I-9 Automation
• Global Screening
• IQ Review

And much more!

The good news is I will be speaking at the conference.  Please be sure to stop by and hear my topic ” The History of NAPBS and the Background Screening Industry “.  Looking forward to seeing some of you there!