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Employment decisions refer to any employer actions that determine, influence, or change the terms, conditions, or outcomes of employment. This includes decisions about recruitment, hiring, promotion, reassigning, evaluating performance, disciplining, terminating, setting wages, or assigning work hours. These decisions are legally significant because they must comply with federal and state employment laws, including anti‑discrimination rules enforced by the EEOC.

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: , |

What is the difference between an expunged criminal record and a sealed record?

 

The words “expunged” and “sealed” often are used interchangeably. A ”sealed” record means that the record is hidden from the general public. An “expunged” record means that the record has been destroyed. In most states, arrests and convictions for serious, violent felonies usually cannot be expunged or sealed.

Each state has its own rules and laws for expungement, and some states label expungement as “expunction,” “removal,” or “destruction” (of criminal records.) But the record may not completely disappear and may be available to law enforcement and the federal government. In most states, for adults, arrest and conviction records are not automatically expunged or sealed after a period of years. For juveniles, court and arrest records are sealed automatically once the juvenile is arrested and a trial or “adjudication” begins.

The rules and laws for the sealing of criminal records also vary from jurisdiction to jurisdiction. In most instances, a court order to unseal a record is required. Some states order the records to be destroyed after they have been sealed. Further, once a record is sealed, in certain states, the contents/crime are legally considered never to have occurred and are not acknowledged by the state.

In most states, but with some exceptions, after a record is sealed or expunged, the subject may truthfully state that he/she has never been arrested, charged, or accused of a crime. However, as noted above, the federal government does not have to honor an expungement and an expungement of a conviction does not relieve a person from having to disclose it on an application for public office or on certain professional license applications.

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

Decoding criminal records in the UK

In the UK, a criminal record is technically any conviction in a court of criminal offence. However, many motor vehicle offences are not deemed as crimes for criminal record purposes, since such offences carry fixed penalties and are not considered criminal convictions. Offences that are prosecuted by local authorities are sometimes classified as criminal offences, although they are unlikely to be in the Police National Computer (the “PNC”). Even if an individual has accepted a “police caution” as an alternative to prosecution, this would count as a criminal conviction.

The Criminal Records Bureau standard and enhanced disclosures contain information about convictions, cautions, reprimands, and warnings retained in the PNC and the equivalent systems in Scotland and Northern Ireland. For the purposes of CRB disclosures, a caution, reprimand, or warning that has been entered into the PNC will constitute a criminal record.

Criminal convictions also are labeled as “spent” and “unspent.” A “spent” conviction is removed from public records, meaning that the defendant has served time and passed through a rehabilitation period. Until then, the conviction is “unspent.” Some convictions, such as crimes with a prison sentence of more than 2.5 years, remain “unspent” indefinitely, regardless of the elapsed time. For convicted minors under 18 years of age, the “unspent” period is cut in half.

During the “unspent” time, the conviction must be disclosed when applying for jobs and on other applications. And for certain jobs such as law enforcement, some roles in the financial services sector, prison services, health services, private security, and for work with children, the elderly, and disabled, “spent” convictions also must be disclosed.

July 20th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Can a person be denied a job or be terminated because of a bankruptcy filing?

Section 525 of the Bankruptcy Code provides two slightly different standards for government applicants and employees, and for private employers. The bankruptcy discrimination statute for government employees

[s.525(a)] states that:

[The government] may not…deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.

Section [s.525(b)] applies to private employers, and states that:

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

July 13th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

What’s wrong with using information from Facebook, MySpace, Friendster or personal Web sites for hiring decisions?

Some companies believe this is a cheap way to obtain information about an applicant. Unfortunately for the applicant, this type of background check is not covered by the Fair Credit Reporting Act (FCRA) if it is performed by the employer. And since the sites are not mandated to investigate and correct errors, the employer may miss out on hiring a qualified candidate. Additionally, much of the information posted on these sites cannot be discussed in an interview, and if not handled properly, the employer may be sued for claims under various anti-discrimination statutes, ADA, privacy laws, and state “off-duty” conduct statutes. Employers who use third-parties to conduct background investigations by searching social Web sites and Internet postings must comply with the FCRA, and thus explicitly state in the background check authorization that social networking and/or other such sites will be accessed. The FCRA does not prohibit employers from obtaining consumer reports that contain information compiled from Internet sites; however, employers are required to disclose to the applicant that the information was the basis of an adverse employment decision (Id. § 1681b(b)(3)(B)(i)(I).

Despite the liability exposure and unreliability of the information, various surveys show that employers do use information from social networking sites and blogs to support their decision to hire or disqualify an applicant. The most common causes for disqualification include:

  • Information or photographs about drinking or using drugs
  • Provocative or inappropriate photographs or information
  • Poor communication skills evident in postings
  • Bad-mouthing previous employer or fellow employee
  • Misrepresentation of qualifications
  • Discriminatory remarks related to race, gender, religion, etc.
  • Unprofessional or provocative screen name
  • Indications of criminal behavior
  • Posted confidential information from previous employers
July 1st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Update on Senate Bill 1045 (OL 2010. Ch. 102) which amends Oregon Revised Statute 659A.885 that restricts employer’s use of credit history in employment decisions

The Oregon Bureau of Labor and Industries published its final administrative rules regarding Senate Bill 1045 (OL 2010. Ch. 102). The regulations go into effect July 1, 2010. The Oregon Revised Statute 659A.885 specifically prohibits an employer from obtaining or using credit history for employment purposes of an applicant or employee unless that credit history information is “substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.” The state of Oregon set up a hotline (at 971-673-0824) to explain the new regulations. The regulations can also be viewed online at http://www.oregon.gov/BOLI/LEGAL/docs/RulesSoS0052010.pdf

July 1st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

What laws require or influence background screening of volunteers?

Whether a volunteer is required by law to submit to a background check depends on the type of organization for which the volunteer work is performed. Several state and federal laws regulate health and public safety organizations, some of which require screening of both employees and volunteers. There are also other laws that provide protection to at-risk populations, especially children. One such law allows the public to access information about convicted sex offenders. For more information and a link to state sex offender registries, see the U.S. Department of Justice’s Child Exploitation and Obscenity Section at http://www.usdoj.gov/criminal/ceos/index.html.

The laws that facilitate an organization’s screening of volunteers are the Volunteers for Children Act of 1998 (VCA) Public Law 105-251, which amended the National Child Protection Act of 1993 (NCPA), 42 USC § 5119(a) a.k.a. “Oprah’s Law” allowing volunteer organizations to access federal criminal records, and the Fair Credit Reporting Act (FCRA), 15 USC §1681, if a background check is performed by a third-party background screening firm.

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