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Compliance Corder covers articles related to employment decisions due diligence.

Social Security number (SSN) randomization to take effect in June 2011

The Social Security Administration (SSA) describes the SSN randomization as a forward-looking project to help protect the integrity of the Social Security number by establishing a new random assignment methodology. The SSA promises to still provide online services for direct SSN verifications, as follows:

  • SSA’s Social Security Number Verification Service – available to employers.
  • Department of Homeland Security’s eVerify Service – available to employers to determine employment eligibility.
  • SSA’s Consent-Based SSN Verification Service – available to enrolled private companies and government agencies for a fee.

Federal and state agencies will continue to maintain several SSN verification
systems, as outlined at http://www.ssa.gov/gix/eprojects.html.

December 21st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |

No background check was done on Michael Jackson’s doctor

Media sources reported that among several wrongful death lawsuits filed by the Jackson family, is a September 2010 action against event production company AEG Live and others alleging that they are responsible for the singer’s death because his “This Is It” tour contract with AEG created a legal duty to keep him healthy.

In its complaint, among other causes, the Jackson family accuses AEG of “negligent hiring” and retention of Dr. Conrad Murray to care for Jackson instead of his usual doctor. Earlier this year, prosecutors charged Murray with involuntary manslaughter, to which he pleaded not guilty. The doctor is accused of administering the drug Propofol to Jackson without the necessary resuscitation equipment or nursing support, and subsequently causing his death. The ‘Negligent Hiring’ cause of action in the complaint filed in Los Angeles County states:

“In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray’s background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.”

“During the course of Murray’s treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care. AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.”

Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. And in the most recent case filed November 30, 2010 in the Los Angeles County Superior Court, Joe Jackson is also claiming negligent hiring, training and supervision and negligence by the Murray-affiliated clinics and negligence against the pharmacy (and Murray.) A similar suit filed this past June did not include the pharmacy, and was dismissed.

Shortly after Michael Jackson’s death, ABC News reported that Murray was arrested on domestic violence charges in 1994 after an incident with his then-girlfriend. The doctor was tried and acquitted. When a company fails to conduct a background check, the employer can be held legally liable for a worker, independent contractor or volunteer who causes injury to a customer, co-worker or the general public. Whether the individual was acting within the capacity of the job for which he/she was hired does not matter. The legal theory is that even if an employer did not possess direct knowledge of the liability posed by an employee, the company is legally responsible because the employer should have known about the threat presented by the individual. Currently, fewer than 50% of the states uphold the doctrine of negligent hiring, and the criteria for determining negligent hiring differ from state to state.

December 8th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

More on credit reports for hiring decisions

According to September 2010 congressional testimony by the Society for Human Resource Management (SHRM), credit checks are a useful tool to “assess the skills, abilities, work habits and integrity of potential hires.” However, SHRM states that only 20 percent of employers conduct credit checks on all applicants. Fifty-seven percent of these employers perform the checks only after contingent offers, and 30 percent after job interviews; 65 percent allow job candidates to explain their credit results before the hiring decision is made, and 22 percent accept explanations after the hiring decision.

A bill in the U.S. House, called the Equal Employment for All Act, would amend the Fair Credit Reporting Act (FCRA) to ban the use of credit checks on prospective and current employees for employment purposes, with the following exceptions:

  • jobs that require national security or Federal Deposit Insurance Corp. clearance;
  • jobs in state or local government that require the use of credit reports;
  • supervisory, managerial, and executive positions in financial institutions.

The states of Illinois, Oregon, Hawaii, and Washington already have passed laws to prevent employers from using credit reports in employment decisions.

November 30th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Massachusetts employers cannot ask about criminal history on initial job applications

As of November 4, 2010, Massachusetts employers are prohibited from asking about criminal records on the initial job application, except for positions for which a federal or state law, regulation or accreditation disqualifies an applicant based on a conviction, or if the employer is mandated by a federal or state law or regulation not to employ
individuals who have been convicted of a crime.

The new law also has two provisions that will become effective February 6, 2012. Under the first provision, an employer in possession of criminal record information must disclose that information to the applicant, prior to asking about it. And similar to the requirements of the Fair Credit Reporting Act, if an employer decides not to hire an
applicant in whole or in part because of the criminal record, the employer must provide the applicant with a copy of the record.

The second provision requires employers who conduct five or more criminal background investigations annually to implement and maintain a written criminal record information policy. The policy, at minimum, must specify procedures for (1) notifying applicants of the potential for an adverse decision based on the criminal record, (2) providing
a copy of the criminal record and the written policy to applicants, and (3) dispensing information to applicants about the process for correcting errors on their criminal record.

The law imposes penalties (including imprisonment for up to one year or a fine of up to $5,000 for an individual and $50,000 for a company) for those who request or require an applicant to provide a copy of his/her criminal record except under conditions authorized by law, and prohibits harassment of the subject of the criminal record (punishable by imprisonment of up to one year, or a fine of not more than $5,000.)

November 16th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , , |

Illinois Employee Credit Privacy Act (096-1426)

Effective January 1, 2011, the Act will prohibit employers, in many circumstances, from inquiring about or using an employee’s or prospective employee’s credit history as a basis for employment, recruitment, discharge, or compensation. The Act also will prohibit an employer from retaliating or discriminating against a person who files a complaint under the Act, participates in an investigation, proceeding or action concerning a violation of the Act, or opposes violation of the Act. Pursuant to the Act, an employer will not:

  • Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, term, condition, or privilege of employment because of the individual’s credit history or credit report.
  • Inquire about an applicant’s or employee’s credit history.
  • Order or obtain an applicant’s or employee’s credit report from a consumer reporting agency.

Exceptions to the Act are as follows:

  • State or federal law requires bonding or other security covering the individual holding the position.
  • Duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more.
  • Duties of the position include signatory power over business assets of over $100 or more per transaction.
  • Position is managerial, and involves setting the direction or control of the business.
  • Position involves access to personal or confidential information, financial information, trade secrets, or state or federal national security information.

The Act also states that nothing in its provisions shall prohibit employers from conducting a thorough background investigation which may include obtaining a consumer report and/or investigative report without information on credit history, as permitted by the Fair Credit Reporting Act (FCRA).

September 10th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , , |

The FCRA and Employer’s Obligations

In recent years, negligent hiring and retention lawsuits have seen a dramatic rise, with settlement payouts averaging over a million dollars. These cases are predicated on the theory that an employer may be held liable for its negligence in placing a person with certain known propensities for criminal or other unfit behavior in an employment position where the individual poses a threat to others. The most common defense against negligent hiring or retention actions is based on foreseeability, which is often determined through a background investigation. Some courts have been more flexible than others in damage awards, but regardless of their stance, the closer the connection between the perpetrator’s dangerous propensity and the actual tortious conduct, the stronger the case against the employer. The law in both negligent hiring and negligent retention also recognizes that a company’s duty to avoid employing dangerous people does not end when an individual is hired–it extends to negligent supervision, negligent training and negligent firing.

Nearly every investigation that touches on employment is covered by the Fair Credit Reporting Act (FCRA), which defines employment (purposes) as “evaluating a consumer for employment, promotion, reassignment or retention as an employee.” If an employer uses a third party screening service to conduct a background investigation of an applicant or employee, that company is considered a “consumer reporting agency” (CRA) under the FCRA. The CRA’s reports, known as consumer reports, may contain information from educational institutions, professional licensing boards, former employers, courts, credit bureaus, references, motor vehicle departments, regulatory entities, media sources, etc.

The FCRA is a complex federal statute that has been significantly revised since 1970. But the Act’s primary mandate remains that CRAs adhere to “reasonable procedures” to protect the confidentiality, accuracy, and relevance of consumer information. Under its Fair Information Practices, the FCRA has established rules concerning personal information that include rights of data quality (to access, dispute and correct), data security, usage limitations, data destruction, disclosures, user consent, and accountability. The FCRA requires the employer/user to affirm to the CRA that it is in compliance (with FCRA) and has enacted the following directives prior to the initiation of a consumer report:

  • Verified that there is a legitimate need for requesting a consumer report
  • Certified that written permission was obtained from the applicant or employee and proper disclosures were provided
  • Stated the reason for requesting a consumer report
  • Certified that the information will be used for employment purposes only.

Before any adverse action is taken based on information in the consumer report, the FCRA obligates the employer to provide the applicant or employee a copy of the report and summary of consumer rights prescribed by the FCRA. And if adverse action is taken, the employer must deliver an “adverse action notice” to the affected individual. Further, the employer must certify that it will not use any information from a consumer report in violation of the applicable federal or state equal opportunity laws and regulations.

The FCRA makes a distinction between a “consumer report” and “investigative consumer report.” Its delineation of a “consumer report” is that it is comprised of verifications of facts about education, employment or other claims made by the applicant, while an “investigative consumer report” is a compilation of information about character, general reputation, personal characteristics, or mode of living through interviews. Thus, an employer who uses investigative consumer reports must comply with the provisions of the FCRA that apply generally to consumer reports as well as the provisions that are specific to investigative consumer reports which include “clearly and accurately” disclosing in writing that it may obtain the aforementioned information. This notice must contain a statement advising the individual of the right to request additional disclosures concerning the nature and scope of the inquiry, along with a written summary of consumer rights. Also, for an investigative consumer report, the disclosure must be made within three days after such report is requested, while in a consumer report, notice must be given before the report is procured.

The FCRA rules also apply when an employer uses a third party to investigate employee misconduct. The employee must be notified “clearly and conspicuously” and authorize, in writing, the undertaking of an investigative consumer report. If the employer disciplines or adversely treats the employee based upon the information in the report, the employer must provide the employee, within 60 days of the adverse decision, the following:

  • Notice of the disciplinary action
  • Name, address and telephone phone number of third party that prepared the report
  • Statement that said third party had no input into the decision to discipline the employee and thus will not provide information about the action taken
  • Notice that the employee is entitled to a free copy of the report and can request that the employer state the reason for the disciplinary action.

The FCRA does not apply to investigations of misconduct conducted by internal personnel or by third parties which do not regularly prepare such reports.

Violations of the FCRA can lead to civil and/or criminal penalties for the CRA and the employer. Civil penalties may carry nominal damages (up to one thousand dollars if no actual damages exist), actual and punitive damages, and attorneys’ fees and costs, if there is “willful noncompliance.” Civil penalties for “negligent noncompliance” are confined to actual damages and attorneys’ fees and costs. Criminal penalties may be imposed when a party knowingly and willfully obtains information from a CRA under false pretenses.

Establishing a relationship with a reputable CRA is one of the best assurances of FCRA compliance. An experienced company can provide guidance not just in the legal process of the FCRA, but also instill trust that it has met its related obligations.

September 6th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

Fake your way into a dream job for under $60

 

The job market is tight and fake-your-career services are in bloom. Buy a Job Reference, which describes itself as a “shameless service,” boasts that in the first six months of 2010, it assisted nearly 400 clients in gaining employment (but links to success stories do not work so maybe the stories are fake too.) For the low price of $59.99, payable through credit cards and PayPal, the company will supply a personalized fake employer name, phone number and address, suitable for any occupation you choose. And if you need a new apartment to go with that new job, for $29.99 the company will set you up with glowing previous landlord references.

CareerExcuse.com, a self-proclaimed “world’s largest network of job reference providers” since July 2009, is more expensive with a $65 set-up fee plus an undisclosed amount for a 30-day answering service, and a $20 monthly subscription. This basic package includes a “professional voicemail system that many banks and large companies use, calls that are returned from voicemail within 24 hours armed with positive references provided by you, and a toll-free number and e-mail addresses for your references.” If you really want to impress a prospective employer, there is a premium plan for $195+ that will upgrade the verifications to a live receptionist. But once you land that dream job, most likely you will have to wait a while before you accrue any paid time off. Guess what? For $35 you can get some bereavement days with CareerExcuse operators standing by to verify that your designated relative is deceased, and avail a real funeral home Web site and address for flower delivery. CareerExcuse apparently wants to be a one-stop shop for all your fibbing needs, as it also provides links to instant “real university degrees.”

According to several Internet sources, including ABCNews.com, Alibi HQ also is or has been in the fake reference business; however, its Web site address, www.alibihq.com, leads only to a spam-type search page. ABCNews.com said in its August 2009 article that Alibi HQ charges $199 for the first 90 days and $50 for each additional month for the fictitious declarations. Mark Stevens, a purported Alibi HQ spokesman, told ABCNews.com that the company, which also offers fake landlord references and fake doctor’s notes, has been operating for several years, and that customer interest in employment references has skyrocketed over the last year (2009) with calls from people seeking Alibi HQ’s services quadrupling.

So how do these companies get away with such slippery handicraft? Each claims that it will not do anything that defies the law, including providing references for loan purposes. CareerExcuse contends that in a segment by KENS-5 in San Antonio, the Better Business Bureau did not question the legality of its services, although it did not give the company a “ringing” endorsement. But legal experts say that such companies and the clients they serve may ultimately find themselves as defendants in lawsuits filed by duped employers.

August 27th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Belford University: another diploma mill case from our files

So why did the applicant for a professional level position with one of our clients choose Belford University in Humble, Texas to get a Bachelor of Science degree in accounting? Maybe because Belford grants original degrees printed on traditional degree paper with a gold-plated seal which identifies it as a degree from a reputed and reliable institution. Or perhaps because the university offers free three-day shipping on a complete $249 degree package (a 4.0 GPA is $75 extra), consisting of one original accredited degree, two  original transcripts, one award for excellence, one certificate of distinction, one certificate of membership and four education verification letters. We will never know for sure. But we do know that the university’s claims on its two Web sites (www.belforduniversity.net and www.belforduniversity.org) of being “an accredited institution recognized by two renowned accreditation agencies for on-line education, namely the International Accreditation Agency for Online Universities (IAAOU) and Universal Council for Online Education Accreditation (UCOEA)” are meaningless as the accreditations are not approved by the U.S. Department of Education. It is a bit suspicious too that on its “.org” site, the links to “University Briefs” are inactive, and thus we cannot find out the details of Belford’s “Clair’s Award for Excellence” and why Clair (spelled without an “e”) is giving out awards.

The Houston Press got on Belford’s haft in 2006 when it exposed the institution as a degree mill, operating from Humble, Texas with an indeed humble office (so humble that it’s non-existent as someone closed its account at the USA 2ME mailbox drop.) An entry in the Wikipedia stated that the degrees are actually mailed from the United Arab Emirates. The Houston Press checked out some of the names of Belford’s professors and its distinguished alums, which include Michael Fonseca, who was “promoted to the post of Divisional Head for Romuna Securities, a subsidiary of Romuna Group.” But the impressive-sounding Romuna appears to have its empire only in the mirage of Belford University.

David Linkletter of the Texas Higher Education Coordinating Board said that the board reported Belford to the state Attorney General’s office in March 2006, noting that “this is not a legitimate institute of higher education, as no legitimate university offers a complete degree on the basis of one’s life experience…To the extent that Belford University is in Texas, it is operating in violation of the Texas Education Code.” Since September 2005, the code makes it illegal to use a fraudulent or substandard degree for purposes of employment, business promotion or to seek admission to a university.

Despite Belford’s history of bamboozlement, as many as 500 resumes in LinkedIn, including  those of a New York-based director of human resources and  a CEO in the pharmaceutical industry, boast degrees  from this university, according to a February 2010 post on a  “consumer ally” Web site.

August 11th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Bienville University not so bien

In our second diploma mill case this year, an applicant for a professional level position with one of our accounting firm clients claimed a bachelor of business administration degree from Bienville University in Baton Rouge, LA. Our research analyst quickly discovered that the university was shut down by state action several years ago, but subsequently began peddling degrees in Mississippi for $5,000 for the BS program and $7,500 for a master’s program (according to an Internet “rip-off” posting.) A colorful, official-looking Web site for Bienville University still can be found at http://www.3cdf.com/3rdwebs/bu3/menu/menu.html but its pages for various information categories are not active. An entry in the Wikipedia said that Bienville University was exposed as a diploma or degree mill in a 2003 report by KVBC News 3, as it was never recognized or approved by any accreditation agency of the US Department of Education.

And there is more…Bienville University’s founder, Thomas James Kirk II (also known as Thomas McPherson) was the operator of several other fraudulent higher education institutions (diploma mills), including the University of San Gabriel Valley, Southland University, and LaSalle University (Louisiana.) He was indicted for fraud in 1996 and, after a plea agreement, was sentenced to five years in a federal prison.

August 8th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |

Navigating through civil case jurisdictions in state and federal court systems

Courts within the federal judicial system:

  • Federal district courts are courts of original jurisdiction. District courts, as all federal courts, are also courts of limited subject-matter jurisdiction, meaning that they have the authority to hear cases of a particular type or relating to a specific subject matter, primarily based on federal questions and diversity of parties. The statute for federal question jurisdiction, 28 U.S.C. § 1331, provides that the district courts have subject-matter jurisdiction in all civil actions arising under the Constitution, laws, and treaties of the United States. This jurisdiction is not exclusive; state courts also can hear claims based on federal law. The statute for diversity jurisdiction, 28 U.S.C. § 1332, provides the district courts jurisdiction in actions that meet two requirements: 1) complete diversity – no defendant is a citizen of the same state as any plaintiff, and 2) amount in controversy exceeds $75,000. Federal courts also have removal jurisdiction, which is the authority to try cases removed by defendants from state courts.
  • Circuit courts are courts of appellate jurisdiction as they are authorized only to review decisions on appeal from district courts, certain specialized federal courts or federal administrative agencies. There are thirteen federal circuit courts; twelve for each one of the geographic circuits and one designated as the Federal Circuit which hears appeals from various specialized federal courts. Appeals from many of the administrative agencies are held in the Court of Appeals for the District of Columbia Circuit.
  • United States Supreme Court has original jurisdiction over cases affecting ambassadors and actions in which states are parties. Its appellate jurisdiction over all other types of cases is mostly discretionary.

Courts within the state judicial system

  • Courts of limited subject-matter jurisdiction are authorized to hear specific types of cases, such as small claims, traffic, landlord-tenant, or probate.
  • Courts of original and general jurisdiction hear all cases not exclusively apportioned to courts of limited jurisdiction, such as state claims and federal questions that also could be brought in federal district courts. State courts of general jurisdiction are often at the county level, and vary in their designations, e.g., Superior Court in California, Circuit Court in Virginia, Court of Common Pleas in Ohio and Supreme Court in New York. In some states, courts of general jurisdiction also hold appellate jurisdiction over cases originally tried in courts of limited jurisdiction.
  • Intermediate appellate courts exist only in more populous states. In some jurisdictions, the decision of the intermediate appellate court is final for most fact-bound and “routine” cases, such as domestic relations, and subject to discretionary appeal for constitutional questions.
  • Courts of appellate jurisdiction are variously called the Supreme Court, the Court of Appeals, or, in Massachusetts, the Supreme Judicial Court, and have the authority to change decisions and rulings of lower courts. Depending on the case type and original decision, an appellate review may consist of an entirely new hearing (a trial de novo), a hearing whereby the appellate court gives deference to factual findings of the lower court, or a review of specific legal rulings of the lower court (an appeal on the record.) An appeal from the intermediate appellate court to this higher court is mostly by permission, with the exception of a small number of cases selected by legislatures, such as administrative law actions.

To decide a case, a court must have a combination of subject-matter jurisdiction (defined previously) and either personal jurisdiction (defined as having the power to render a judgment against a particular defendant) or territorial jurisdiction (defined as having the power to render a judgment involving events that occurred within a well-defined territory) along with adequate notice (a requirement that the parties be aware of the legal process affecting their rights, obligations and duties.)

July 28th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |
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