I am writing to you from the beautiful shores of Atlantic City, N.J. where I just made a presentation on ‘Background Screening is Changing? Are You Keeping Up With the Changes? at the East Coast PI Magazine’s SuperConference. The weather has been great. I took a walk on the infamous boardwalk yesterday and it bought back memories of the Drifters famous song ‘Under the Boardwalk.’ Do you remember it?

I know you are aware of the EEOC filing complaints against Dollar General and BMW’s US Subsidiary for generally barring applicants with conviction records which violates their new Guidance. For an in depth look at the complaints and the political spin be sure to read the WASHINGTON REPORT by Kevin Coy in this edition.

Two important studies for you to read are: Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas (see Background Screening News section continued after E-verify and Immigration section) and the new report by the National Workrights Institute on The Exaggerated Threat of Negligent Hiring.

The new was launched on June 17th. Please visit and let us know what you think.

We redesigned the site to make it easier for visitors to find the specific information they are searching for quickly and to provide a high value background screening information portal. Our goal is to help firms in the background screening industry to leverage their SEO efforts and to drive our site to become the premier backlink for background screening firms.

Another major change is that we have changed our model so that Platinum Members logos are now directly linked to the members’ web sites which will also help with your SEO efforts.

A new opportunity that is immediately available to all our readers is the ability to post articles, white papers, press releases, announcements, etc. to our new Background Screening Knowledge Center with hyperlinks to their respective web sites, thus driving more traffic to your site. Send us your articles, press releases, etc. today so we can get them posted.

If you do business internationally you definitely want to check out the new International Background Screening Resource Center. It is the premier source for information on International background screening and will become the 'go to' source for human resource professionals and anyone else seeking information about international background screening.

A big thank you to all of the advertisers who joined us in the 2013 Annual Background Screening Industry Buyers Guide. The distribution at the SHRM Conference was a big success.

Text Box:  Suppliers we will be starting to work on the Summer edition of the Suppliers to the Background Screening Industry Buyers Guide so now is the time to make sure you are included. I have enclosed the invitation and reservation forms. Don't miss this opportunity to put your company's information directly in the hands of decisions makers at background screening firms that buy your services. We will be distributing the Suppliers Buyers Guide to the more than 1,600 background screening firms in our database. Company Profiles (up to 100 words) are complimentary to our Platinum Members. Contact me today to reserve your space.

Thanks again for joining us this month, have some fun and stay safe!

PS – Zdravo is hello in Montenegrin which is the official language of Montenegro.

Volume 9, Edition 6, June 2013




New Report on the Exaggerated Threat of Negligent Hiring

Employers frequently claim that they are unable to hire applicants with criminal records because of the risk of liability for negligent hiring. This claim is often made in good faith; management attorneys consistently advise their clients that hiring anyone with a criminal record creates a risk of liability if the employee commits a new offense during the course of his employment. An examination of court decisions on negligent hiring, however, reveals that the risk is much less than employers believe and is confined to a relatively small number of jobs. Properly understood, the risk of negligent hiring liability does not limit the ability of employers to hire the vast majority of former offenders for most jobs.

The National Workrights Institute conducted a search for all reported negligent hiring cases. In the 28 years since the first reported negligent hiring decision, the study found a total of 92 published decisions and based on the volume of civil cases projected that there are only about 270 successful negligent hiring cases every year in the entire United States. The chance that an employer will be successfully sued for negligent hiring even once in a year is a fraction of 1%.

The research also pointed out that not all cases of negligent hiring involve the employment of people with criminal records. Many cases did not involve any type of prior misconduct of the employee.

Cases where employers have been held liable for negligent hiring fall into a short list of specific types of positions:

· Access to Vulnerable Populations
· Home Access
· Positions of Authority
· Carries a firearm
· Commercial and regular use of motor vehicles
· Financial Responsibility
· Alcohol servers

The common denominator in these cases is that the jobs in question present special risks that require an employer to use appropriate care when hiring.

In addition, two factors appeared to have a clear nexus with identifying risk in hiring: Multiple Convictions and drug related cases particularly those involving selling and use of crack.

The study concludes that negligent hiring is a legitimate concern for employers, however, it is among the smallest legal risks they face and the risk mostly exist with only a small number of well-defined jobs. The authors believe employers can hire the vast majority of people with criminal records for the vast majority of jobs without risking liability for negligent hiring.

Read more

Background-check Industry Under Scrutiny as Profits Soar

Few companies are growing as fast as Sterling Infosystems Inc., one of the largest players in the criminal background-check business. Its revenue has rocketed to nearly $250 million from just $7.5 million in 2001, an annual growth rate of 34%-1 percentage point more than Apple's over the same period. However, sometimes Sterling costs people their jobs by getting it wrong, by turning up background information that is simply incorrect. Be that as it may, Sterling has never been subject to any government action and has a litigation-incidence rate of 0.0005%. Founder and Chief Executive Billy Greenblatt, says that performing checks is "not a perfect science" and that "nothing is guaranteed." But critics say that accuracy can be purchased for a price and that profit making companies like Sterling don't want to spend what it takes to ensure that accuracy. Critics also argue that automation is the industry's biggest problem because the databases that background-check companies rely on are frequently incomplete. Greenblatt disagrees saying, "whenever you use a human being, you have more risk than if you automate," he said. "We care more than anyone in the world about getting information right."

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A Second Chance for Ex-Offenders

The EEOC took on an important issue last year when it reaffirmed and updated a ruling that barred employers from automatically denying people jobs based on arrest or conviction records. The guidance made clear that an arrest alone was not proof of illegal conduct or grounds for exclusion. It also explained that, when considering an applicant with a criminal conviction, the employer must take into account the seriousness of the offense, the time lapsed since the offense and the relevance of the crime to the specific job being sought. The point is to eliminate unfair obstacles to employment for the 65 million Americans who have criminal records, including those based on minor convictions that might have occurred in the distant past. Recently, the EEOC stepped up enforcement in this area by filing discrimination lawsuits against two companies - the retail chain Dollar General and the automaker BMW. The suits charge the companies with violating Title VII of the Civil Rights Act by using discriminatory background-check policies that had disparate impacts on minority employees and applicants.

Read more

If Background Checks are Good Enough for Guns, They're Good Enough for Jobs

Just because the majority of ex-cons are black, it doesn't mean using background checks in employment decisions amounts to racial discrimination. The bottom line is that someone with an arrest history is a less desirable job candidate then a person without one. Just like someone who has committed a crime, or has a serious mental health issue, isn't as desirable a gun owner as someone who doesn't have that kind of background. Democratic lawmakers have embraced background screening for those looking to buy a gun, but balk at using the tool as a method for hiring, even though the premise of both arguments is the same - judging a population on their past as an indicator for future actions. U.S. employers have the right to make a judgment call - to evaluate the crime, the person, their background and time out of jail, to make a hiring decision. In a recession, where there are so many applicants for so few jobs, employers should use everything at their disposal to evaluate the people they're going to invest in - after all, it's their capital, time, and ultimate liability. Political correctness may have its place in politics, but companies who operate in the real world know it's not always prudent to hire an ex-felon, regardless of their skin color.

Read more

Report Reveals Highest Rate of Employee Theft in 5 Years

A new report on employee theft and embezzlement reveals that 2012 had both the largest corporate and municipal embezzlement cases in U.S. history. The 2012 Marquet Report on Embezzlement shows that: The number of major embezzlements increased 11% over 2011; Iowa topped the list of states with highest risk for loss due to embezzlement in 2012, followed by Hawaii, Rhode Island, Montana, Nevada, Wyoming, Illinois, Florida and Vermont; The average loss was about $1.4 million for major embezzlement cases in 2012; and, 58% of all incidents involved female perpetrators in 2012. The study also included a review of 5 years of aggregated data and reported some conclusions Marquet has derived from analysis, such as: Perpetrators typically begin their embezzlement schemes in their early 40s; Major embezzlement schemes span nearly a 5 year period, on average; and By a significant margin, embezzlers are most likely to be individuals who hold financial positions within organizations.

Read more

State Department Hire Agents with Criminal Backgrounds

A shocking memo obtained by the New York Post says that the State Department hired an "alarming number of law-enforcement agents with criminal or checkered backgrounds because of a flawed hiring process." Troubling backgrounds can pose a problem if the agents are needed to testify at trials to assist prosecutors. According to the memo, too many people entering the [Diplomatic Security and Information Management] communities end up as subjects of [Special Investigation Division] investigations and HR adjudications, become Giglio-impaired and can play only limited roles thereafter. "Giglio" refers to a U.S. Supreme Court case dealing with jury notification that witnesses have made deals with the government to induce testimony. On top of hiring criminals, our consulate in Benghazi was left unprotected and it was the State that pushed to turn the CIA talking points surrounding Libya from truth to lie. And it was just a few days ago that CBS News broke the story of the State Department covering up allegations of internal misconduct, including the solicitation of prostitution, drug abuse, and pedophilia.

Read more


Cozy Could Make Renting Much More Comfortable for Both Landlords and Tenants

The service, Cozy, is looking to reboot the way that renters and landlords interact. Renters create a profile in Cozy containing information about themselves, including references and job information (verified through LinkedIn) that can then be quickly and securely submitted to potential landlords who are looking for tenants. Once that renter finds a place (or gives up trying) he or she can retract those applications, leaving no trace behind and providing much greater security than a paper or traditional online application could ever afford. Landlords, too, create profiles and list their properties, including photos and lease payment details. They can accept applications and, once a tenant is identified, process payments digitally. Cozy uses ACH direct debit payments, enabling a renter to push money directly to the landlord's account from their own. The service even aggregates multiple payments from roommates and, should one person be lagging behind, send an email to all the happy (or unhappy) cohorts to let them know exactly who is holding up the process. It costs landlords $9 per month for every unit they list on Cozy.

Read more

Landlord Alert - HUD Issues New Rule that May Impact Tenant Screening

The Federal Department of Housing and Urban Development (HUD) issued a new rule on February 15, 2013, that calls into question whether landlords/management companies can deny tenancy to a prospect simply because of a prior criminal record or arrest. Under the new rule, if a landlord/ management company is sued by a prospective tenant for discrimination, the landlord/management company will have to show that its policy has a legitimate business purpose and protects a legitimate business interest. If the landlord can prove this, the burden shifts to the prospective tenant to prove that the landlord's/management company's legitimate business interest can be protected in a different way that would not have a discriminatory effect. If the prospective tenant is successful in proving this, the landlord/management company can be liable for housing discrimination. All landlords/ management companies should review their rental criteria policies and practices to make sure that they do not run afoul of this rule.

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Injured Officer Sues Alexandria Yellow Cab

An officer who was seriously injured when a taxi driver allegedly shot him in the head is suing the Alexandria Yellow Cab company, alleging negligent hiring. Kashif Bashir allegedly shot Alexandria police Officer Peter Laboy in the head as Laboy attempted a routine stop of Bashir's taxi. Bashir was charged with aggravated malicious wounding, attempted murder of a law enforcement officer and two counts of using a weapon in the commission of a felony. Bashir, who had been working for Alexandria Yellow Cab for four years, was wanted for acting in a "menacing and threatening manner," according to the lawsuit. A gun and several cans of beer - some empty and some full - were found in Bashir's cab after his arrest. The lawsuit alleges Alexandria Yellow Cab did not perform any type of "adequate or effective background screening prior to hiring Bashir" and other drivers, failing in ensuring public safety. Laboy is suing for $10 million total in damages for negligent hiring and negligent entrustment. Prior to the incident, Bashir had been convicted or charged with more than a dozen violations during the past few years.

Read more

Washington Passes Social Media Privacy Law

For businesses that use social media to vet job applicants or to monitor employees, change is afoot. The Governor has signed into law a bill that makes it illegal for any employer in Washington to require an employee or applicant to provide access to his or her social media account. This law covers any employer with one or more employees, and it goes into effect July 28, 2013. The law prohibits employers from requesting, requiring, or coercing a current employee or job applicant into doing any of the following: Giving the employer the login information to a private social media account; "Friending" a manager or other third person so the employer can view the individual's account; Requiring that the employee change his or her privacy settings to make the account publicly available; and Logging into the account in the employer's presence so as to enable the employer to view the content. The law expressly prohibits employers from taking any "adverse action" against an employee for refusing to engage in any of these prohibited acts. This means firing, refusing to hire, or disciplining the employee or applicant, or threatening to do so. Eleven states have now enacted laws of this nature, and similar legislation is being considered in over thirty more.

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NH Senate Approves Social Media Protections

New Hampshire's Senate voted unanimously to prohibit bosses from requiring employees or job applicants to disclose user names or passwords to personal Facebook, Twitter or other social media or email accounts. But the Republican-controlled chamber voted 13-11 along party lines to add an amendment on union contracts that could spell trouble when the bill goes back to the House to consider changes to the bill. The bill would apply the ban to the workers' personal accounts unrelated to the employer's business. The measure would not prohibit an employer from obtaining information in the public domain or prevent the employer from investigating whether the employee is complying with securities or financial laws based on the person's personal website used for business purposes. Senate Democratic Leader Sylvia Larsen of Concord objected the added provision could doom the social media provisions. Allowing employers access to social media accounts also gives them access to others linked to the account, which could infringe on their privacy.

Read more

Welcome to the U.S. Legal Challenge Question!

Sponsored By:

As the background screening industry continues to get more competitive the firms that will ultimately succeed will be those that create competitive advantage through their people by offering continuous learning opportunities to heightened their knowledge and capabilities. We believe that having employees that are very knowledgeable about the legal landscape of background screening is essential to continued success.

We are grateful to Pam Devata, Seyfarth Shaw LLP for providing the expertise for this valuable endeavor. For information regarding the answers to the Legal Challenge Questions, please contact Pamela Devata at Seyfarth Shaw LLP at or 312-460-5000 or visit

Please choose your answer by clicking on it:


If an employer wants to access criminal conviction records that are older than seven years they should consider the following:

a. The FCRA prohibits criminal conviction records checks beyond seven years unless you have a bona fide business reason and you must request a special exemption.

b. Verify that the appropriate state law does not prohibit such record checks and if not proceed.

c. There are no restrictions on checking criminal records beyond seven years so move forward.

d. Based on potential discrimination issues being raised by the EEOC you should never check criminal records beyond seven years.


 LEGAL ISSUES - continued

The Flurry of New Employment Laws Regulating the Use of Criminal Records Continues with Expanded Restrictions in Indiana, North Carolina, Texas, and Buffalo, New York

The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance released in April 2012. And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes. On the reverse side of this issue, recognizing that employers have potential tort exposure for hiring ex-offenders, some state legislatures have taken steps to protect employers from tort claims like negligent hiring and/or retention. One example is a new law in Texas. This legislation is intended to further the same public policy interests, but takes a different and more sensible approach: curbing lawsuits against employers rather than denying employers access to potentially salient information about a candidate's criminal past.

Read more

Seattle Restricts Use Of Criminal History In Hiring

The Seattle City Council unanimously passed the "Job Assistance Bill" restricting employer use of criminal history background checks in hiring. The ordinance was enacted in an effort to ease return to the workforce of individuals who have been arrested, convicted, or charged with a crime. The new ordinance applies to employers of all sizes, as few as one employee. It also covers job placement, temporary and staffing agencies. Unlike the federal FCRA or comparable state laws, the ordinance also governs use of information obtained directly by the employer, not through outside background check companies. Employers may not automatically exclude all individuals with an arrest or conviction record for any job performed in whole or substantial part (over 50%) within the City of Seattle. The law restricts questions that can be asked about criminal background. It requires the employer to establish a legitimate business reason before denying an applicant a position based solely on that individual's criminal conviction record or pending criminal charge. This law emphasizes the rising importance of new, regional restrictions on employer conduct.

Read more

Nevada Becomes State #11 to Enact Social Media Password Protection Legislation

Nevada has joined the growing list of states that have enacted "social media password protection" legislation that restricts employers' access to applicants' and employees' personal social media accounts. The full roster of states with such laws now includes: Arkansas; California; Colorado; Illinois; Maryland; Michigan; Nevada; New Mexico; Oregon; Utah; and Washington. The Nevada law goes into effect on October 1, 2013. The Nevada law prohibits employers only from requesting or requiring that applicants or employees provide their user name, password, or other information needed to gain access to a personal social media account, as well as adverse employment action based upon a refusal to comply with such a request. This prohibition is narrower than that seen in many password protection laws which typically also prohibit employers from "shoulder surfing," from compelling an employee or applicant to accept a friend or connection request and/or from requiring that an employee or applicant change privacy settings to permit the employer access to his or her restricted, personal social media account.

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Credit Checks in Employment: Where Employers Stand After Kaplan

The EEOC and some state and local governments became concerned with employers' use of credit checks following the 2008 economic crisis. Many people found themselves out of work, negatively affecting credit scores. Government officials worried that employers placed too much emphasis on credit checks to screen out otherwise qualified applicants. Their concern is that minority workers are more likely to have poor credit. Employers' overreliance on credit scores as a hiring criterion therefore could have a disparate impact on minority applicants. Even when an employer has a policy that applies to all applicants or workers, the policy may be the basis for a claim of unlawful discrimination. Actionable discrimination may be found if the policy disproportionally affects a protected class of employees, and the employer cannot demonstrate a sufficiently important business need for the policy. In EEOC v. Kaplan Higher Education Corp., the EEOC alleged that Kaplan's use of credit checks had a disparate impact on African American job applicants, however the EEOC was unable to produce disparate impact evidence. The court entered summary judgment in Kaplan's favor.

Read more

Council 'Bans the Box' to Help Ex-cons Land Jobs

The City of Buffalo has voted to "ban the box", making it illegal for any employer to ask job seekers on their applications if they have ever been convicted of a crime. The measure will now be submitted to the mayor for his signature, but the strong support in Council Chambers points to a veto-proof majority and the likelihood it will become law. The measure recognizes that stopping employers from asking job applicants to check a box on job applications if they have a criminal record allows those who have served time or been convicted of minor offenses to at least get an interview. Having to check the box is one reason ex-cons have higher unemployment rates. Opponents argued that asking the question on applications allows employers to know about a criminal background from the beginning and the measure serves as a slap in the face to law-abiding citizens applying for jobs. The Council president stressed that any employer can ask any question about criminal records during an interview, but the new measure at least allows an applicant to state their case. Some exemptions - such as for those applying to be police officers, teachers or childcare workers - are included in the new law.

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New Arizona Law Requires Drug Testing of Taxi and Limousine Drivers

The governor of Arizona signed a law on May 7, 2013 requiring drug testing and criminal background checks for all drivers of livery vehicles, taxis and limousines. The law requires those who own or lease such vehicles to conduct pre-employment drug testing and criminal background checks on applicants for such driving positions. After hire, drivers must be subjected to annual random drug testing. Random testing means that names are selected at random and that everyone in the selection pool has an equal chance of being selected each time a selection is made. When drug testing is truly random, there is no way to guarantee that an employee's name will be selected at any time, let alone once a year. More importantly, the law does not require employers to refuse to hire applicants who test positive, and does not require employers to fire those drivers who test positive on their annual drug tests, although the expectation appears to be that individuals who test positive should not be permitted to drive. Employers must make criminal background records and drug test results available for inspection by the Arizona Department of Weights and Measures.

Read more

 One Site! Many Suppliers!

Get Your Copy of the Suppliers Buyers Guide

Looking for the Top Suppliers in the Industry? Need to find a new Supplier?

Visit our VENDOR SHOWCASE which features suppliers to the Background Screening Industry.

Suppliers to the Background Screening industry Guide Now Available!

Click here or on image to get a copy

Contact Barry Nixon at for information on getting your firm listed in the


FRS Announces Revolutionary New Preferred Partner Program

Most software companies are interested in one thing and one thing only - selling you their product, of course. Once they make the sale and have added you to their client list, they frequently forget about you. Hopefully, they provide good customer service and adequate technical support but that's about as far as it goes. What if…the vendor that sold you their product wanted to help you win new business and achieve greater levels of success? What if… they wanted to assist you in building revenue and market share? What if… the vendor actually put their money where their mouth was and invested in the marketing and promotion of your company to qualified prospects? Could there really be such a vendor or are you just dreaming? If you're in the background screening business, the answer is a resounding "yes"!

FRS, the preeminent provider of background screening solutions for the last two decades, has broken the mold and shattered the status quo with a radical and innovative program designed to help its Preferred Partners close more sales and rack up additional revenue. The FRS Preferred Partner program was created to provide our clients with qualified leads, new sales and lasting partnerships with HR organizations in need of best-in-class Consumer Reporting Agencies (CRA).

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The Conference Board Leading Economic Index® for the U.S. Increases

The Conference Board Leading Economic Index® (LEI) for the U.S. increased 0.1 percent in May to 95.2 (2004 = 100), following a 0.8 percent increase in April, and a 0.3 percent decline in March.

Says Ataman Ozyildirim, economist at The Conference Board: "Despite month-to-month volatility, the LEI's six-month growth rate remains steady, suggesting that conditions in the economy remain resilient. Widespread gains in the leading indicators over the last six months suggest there is some upside potential for economic activity in the second half of the year."

Says Ken Goldstein, economist at The Conference Board: "Growth will depend on continued improvement in the housing market and an easing of consumer and business caution which would allow overall consumption and investment to gain traction. Cutbacks in public spending programs and the drag from foreign trade remain headwinds."

Read more


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We are constantly researching information to use for The Background Buzz and you can put our research to use for you. Using the information rich content from The Background Buzz (minus the ads and competitors information) we will create a custom newsletter for you.

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Public Record Update

Sponsored by:

Public Record Update
By Mike Sankey, PRRN

  Resource for Driving Records

About NIC

NIC state affiliates provide a variety of online services in 30 states. NIC is also the conduit for the Pre-Employment Screening Program (PSP) provided by the Department of Transportation, Federal Motor Carrier Safety Administration. PSP provides electronic access to a driver's crash and inspection history from the FMCSA Motor Carrier Management Information System (MCMIS).

See .

  CA Trailer Bill Killed But New Bill Passed That Alters Public Records Act

California Courts and Record Access

There was quite a bit of news and push back about the trailer bill that would have dramatically altered the fee structure for viewing and obtaining court records in California. The bill was killed by the legislature on June 14, 2013. However, another bill was added to the budget bill which was passed on the 14th. SB71 (or AB76) modifies wording in the California Public Records Act (CPRA)T.

Currently, the CPRA states "...requires state and local agencies to make public records available upon receipt of a request that reasonably describes an identifiable record not otherwise exempt from disclosure, upon the payment of fees to cover costs." SB71 modifies CPRA so that state and local government are merely "encouraged" to make the public records available as per CPRA. SB71 also makes compliance with certain provisions of CPRA as "optional" rather than required - meaning agencies can opt out. The provisions deal with access public records, including court records.

According to published reports this is a budget issue and the Department of Finance expects agencies who opt out will save the state tens of millions of dollars. Another in-depth article is available from the Courthouse News Service at .

View SB71 or AB76 at . The bill specifically alters Sections 6252 by adding 6252.8 which in turn makes certain parts of the CPRA optional including provisions in 6253.

View the section affected in the CPRA at:

The bill is expected to be signed by the Governor on or before June 30th, 2013

  How Do You Analyze Online Sites?

Today everyone is trying to either save a buck or find an edge over their competition by finding new or lower cost online sites providing public records such as criminal records. When one is evaluating an online site, the typical questions often asked are "How much does it cost?" and "Is the data current?" But the questions that really need to be asked and answered are:

  • Is 'x' a primary source or a secondary source?
  • Is an online search of 'x' equivalent to an onsite search?

Sometimes the word-of-mouth system is a good way to find verification of a reliable online site. Sure, you can ask a colleague for a recommendation, but you are not going to obtain a full scale analysis from a post on a social media site or list serve. And if your business depends on knowing the depth and validity of the search results when using a certain online site, you better do more than just get a referral. The resulting data is much too valuable. Firms and individuals who have taken the time to analyze the data on an online site as well as determine the rate of return for the site using certain online systems are not going to give their analysis away freely.

So how do you analyze online sites?

Read more

For more information contact Michael Sankey at or visit


Kevin Coy is a Partner in the Washington DC office of Arnall Golden Gregory LLP. Kevin advises background screening companies and other clients on a wide range of privacy and consumer regulatory issues, including Fair Credit Reporting Act, Gramm Leach Bliley Act, Drivers' Privacy Protection Act, and Dodd Frank Act compliance issues, as well as data breach matters. Kevin also represents clients with matters before the Federal Trade Commission, the Consumer Financial Protection Bureau, and other consumer protection agencies.

Kevin can be contacted at or 202-677-4034.


On The Hill

Background screening activity continues on Capitol Hill, including immigration-reform-related initiatives. Progress continues to be slow, however, so this month's Washington Report focuses on the Equal Employment Opportunity Commission (EEOC), which has been a source of considerable activity since last month's Report.

At the EEOC

Interest on Capitol Hill in the EEOC's Enforcement Guidance likely will be further piqued by the EEOC's June 11 th announcement that the Commission has brought two suits alleging that employers BMW and Dollar General, respectively, have violated Title VII of the Civil Rights Act as a result of the manner in which they have conducted criminal background checks. In both cases the EEOC alleges that the employers' practices have had a disparate impact on African Americans.

Read the full report


E-verify is Supposed to Stop Undocumented Employment. It Could Also Harm Legal Workers.

Almost everyone expects mandatory electronic employment verification to be part of any immigration reform law that reaches President Obama's desk. But critics say the system could create headaches for hundreds of thousands of Americans who do have authorization to work in the United States. Under the current rules, if E-Verify says you're not authorized to work, you have eight days to visit the appropriate government agency and begin an appeal. If you're not able to go in time, or you can't convince the agency that a mistake was made, your employer is supposed to fire you.

A study using 2009 data found that 0.3 percent of applicants suffered initial rejections that were subsequently corrected, allowing the employee to work. But another 2.3 percent of workers got rejections that were never reversed. And while 0.3 percent and 2.3 percent may sound like small numbers, in a nation of 300 million people, that translates to hundreds of thousands of people."The Department of Homeland Security has admitted at least in briefings to Hill staff that the error rate will go up when the number of people added to the system goes up." However also added that "If you think that the desire to identify people who work is an important societal value, you have to understand that that's going to have some incidental adverse cost."

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12 Tips to Prepare for Mandatory E-Verify

With the possibility of E-Verify becoming mandatory for all employers, it's important that employers take proactive measures now to be compliant with the immigration laws. Consider the following 12 tips for better E-Verify and Form I-9 compliance: Display the "Notice of Participation" and the "Right to Work" Posters; Do not use E-Verify before the employee has accepted your employment offer or before Sections 1 and 2 of Form I-9 have been completed; Create the E-Verify Case no later than 3 days after hire; If an employee provides an Employment Authorization Document (EAD) from DACA approval, the employer must document the EAD and its validity date on Form I-9; Employers must provide notice of the TNC to the employee; If an employee is re-hired within three years, the employer may use the re-hired employee's existing Form I-9 and E-Verify record on file; Employers who enroll in E-Verify must use the program consistently; You must re-verify employment eligibility; If employers acquire employees through non-traditional hiring methods, the employer should consult with experienced immigration counsel; Close-out your E-Verify case as soon as you receive a Final Verification Result; Avoid the "over-document" trap of E-Verify Photo Matching; and Ensure all sections of Form I-9 are fully completed.

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Dangerous I-9, E-Verify Mistakes to Avoid

An increasing number of government worksite compliance audits and stricter E‐Verify laws and regulations have made employment eligibility immigration compliance a critical function for HR departments across the U.S. Completing a Form I‐9 Employment Eligibility Verification for each employee enables employers to document that they have met their obligations for verifying the identity and work authorization of their employees. Studies have found that a typical organization will often have errors on more than half of their I‐9 forms. This can lead to steep penalties, the revocation of a business license, debarment for federal contractors, and discrimination and other damage claims from applicants.

Five of the most common and dangerous mistakes that arise when using I-9 forms and E-Verify include:

Denying you have an I-9 problem; Waiting for ICE to Show Up; Treating Employees Differently; Improperly Retaining I-9 Forms; and Not Treating E-Verify Seriously. Some E-Verify best practices include: Centralizing operational control of the E-Verify chain; Understanding the nuances between I-9 and E-Verify requirements; Tracking state law, etc.

Read more


Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas

In today's system of widespread and open access to criminal history records - through commercial vendors and government repositories - it is almost impossible for an individual to overcome a criminal history. Extending far beyond any judicially imposed punishment, many additional consequences flow "collaterally" from a person's criminal history, creating lifelong barriers to housing, employment, and other critical resources. These negative consequences can persist regardless of the offense's severity or whether an arrest is ever prosecuted. A review of Texas' largest urban counties illustrates the wide reach of collateral consequences and the harm inflicted.

"Smart on Crime" reentry reforms have tended to focus on problems arising after criminal records are already publicly available. This is too late.

More than 65 million adults nationwide have a criminal history; the numbers in Texas are equally alarming, with an estimated 4.7 million adults possessing a criminal record. In Texas alone, law enforcement makes more than 1 million new arrests annually.

With the rise of the Internet and the emergence of electronic databases, more than 40 million criminal background checks are performed annually for non-criminal justice purposes. But despite the technological advances that make criminal records so easy and cheap to access, little oversight exists to ensure that the information being reported is accurate and legally compliant. Equally problematic is that efforts to minimize collateral consequences by limiting access to the criminal records are undermined by the absence of uniform statewide release procedures.

Widespread access to criminal records has serious long-term societal implications:

The risk of recidivism and danger to public safety are the most common concerns voiced by those advocating for increased access to criminal records, but such fears are overstated. Few, if any, contend that criminal history information is never a relevant factor to be considered. Problems arise, however, when policies and practices allow searches to include any past criminal involvement or law enforcement contact, regardless of offense, circumstance, and time passed. Restricting all opportunity for those living with a criminal record does not enhance public safety.

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An Employer's Guide To Reference Checks: Preliminary Observations

By Barry Hartstein and Corinn Jackson, Littler Mendelson, P.C.

Employers today are faced with a hiring conundrum. Employers desire as much information as possible

about a candidate in order to make a well-informed hiring decision. Those very same employers, however, are frequently wary about releasing information about a former employee to a prospective employer based on concerns of potential claims from the former employee, including defamation, discrimination, or retaliation from that former employee. In the search for talent, employers are engaging in increased due diligence, including background checks regarding a candidate's education and work history, as well as other screening devices, such as drug testing and inquiries regarding an applicant's criminal history and reference checks. The hiring process has become a legal maze and, at each step of the process, employers must take care to comply with continually changing legal requirements. Just as challenging are the issues faced by employers when dealing with former employees. Former employees frequently desire references to set them apart from large pools of applicants as they seek new employment. However, employees who lose jobs due to performance problems or misconduct may raise concerns about negative information being shared with prospective employers.

This wide array of hiring-related issues demonstrates that employers must be careful in every step of the

hiring process. The objective of this introductory report, and future reports that will provide greater detail on the issues discussed below, is to provide an overview of some of the legal issues that arise in the hiring process, particularly dealing with reference checks.

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A Value-add Service? Background Checks in the Hands of Job-seekers

Organisations are now providing tools to both employees and recruiters to ensure more informed background checks are being carried out. Two U.S. companies - eKnowID and Acertiv - are taking different approaches to ensuring the validity and usefulness of background checks and CVs. Through eKnowID, candidates can obtain background checks on themselves, giving them foresight into what a prospective employer could obtain. In contrast, Acertiv's service allows job seekers to add validity to their CV, by allowing job seekers to upload documents to support their claims, such as licenses, degrees or other qualifications. For employers, Acertiv allows them to skip the validation process and increase their faith in the reliability of a candidate's claims. Greg Newton, general manager an Australian organization offering a similar service, expresses skepticism as to the uptake of this approach in Australia. He suggests these checks can create some of their own problems such as documents dating too quickly and fraudulent documents being too easy to obtain.

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Mere Smell of Marijuana was not Enough: Employee was Entitled to Refuse Drug Test, Says Court

An employee was entitled to refuse to submit to a reasonable-suspicion drug test where a supervisor smelled marijuana in the employee's truck but had no other evidence of drug use or impairment, a Nova Scotia judge has held. The employee refused, saying "it is none of your business what I do when I am not here", and said that he was a recreational user of marijuana and that the test would be positive anyway. The employee was referred to a Substance Abuse Professional but refused to answer questions about his off-duty drug use. The City fired the employee for his "lack of cooperation and direct violation of the HRM Substance Abuse Prevention Policy." The employee grieved the termination, and an arbitrator reinstated him. The City asked the court to overturn the arbitrator's decision. The court noted that although the City had a legal obligation to protect employees' safety under OSHA, the arbitrator reasonably concluded that the evidence suggesting that the employee had used or been impaired by drugs on the job was very weak. In short, the fact that the City had "safety concerns" about the employee did not permit the City to dismiss him where the City did not have just cause.

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Supreme Court Protects Workers' Privacy Rights

The Supreme Court has ruled that companies cannot institute mandatory random alcohol testing of employees. "Random alcohol testing is a humiliating invasion of an individual's privacy that has no proven impact on workplace safety," said Dave Coles, president of the Communications, Energy and Paper Workers Union of Canada. In 2006, Irving Pulp and Paper Limited in Saint John, N.B., unilaterally adopted a policy of mandatory random alcohol testing for employees in safety sensitive positions. CEP Local 30 filed a grievance challenging the policy after a worker was chosen randomly by a computer program to take a breathalyzer test. The test showed a blood alcohol level of zero but the worker said the test was humiliating and unfair. "Our union's long-standing position is that the best way to resolve social problems such as alcohol or drug abuse is to address the root cause of the problem", said Coles. "Rather than attack the victim, Corporate Canada needs to do a better job in offering employee assistance programs, drug education and health promotion programs."

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New EU Data Protection Law: Time to Start Preparing

If you use or collect personal data, you should be aware of three points - the new EU law is coming, it will affect your business and it could well involve significant costs. At present, UK data protection obligations are primarily governed by the Data Protection Act 1998 (DPA), which implements an EU Directive. The European Commission's proposals for reform are the subject of fierce debate and may still change. However, if they come into force as they stand, the implications are likely to include: Even more problems with consent; Significantly more red tape; New requirements for portability and deletion of data; Data processors will have to comply; and, Significantly higher fines. The proposal needs to be approved by both the European Parliament and EU Member States. It had been hoped that agreement could be reached by June of this year, but that now seems unlikely. However, there will be pressure to adopt the proposal by 2014, when the European Parliament and the European Commission are due for re-appointment. Make sure that budgets and planned financial forecasts for 2014-2016 include provision for compliance with the new law (including the appointment of "data protection officers").

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Expect More Spam: No Data Privacy for Malaysians Yet Despite 2010 Law

No date has been set for the enforcement of the Personal Data Protection Act 2010. "It will be enforced as soon as possible," said Communication and Multimedia Minister Datuk Seri Ahmad Shabery Cheek, though he declined to be more specific as to whether it will be in force by the end of the year. Malaysian Communications and Multimedia Commission (MCMC) Chairman Datuk Mohamed Sharil Mohamed Tarmizi noted that as data crosses all industries, "there will be a lot of consultation, which we would have to go through those first, as the regulator in each sector has its own data protection requirement." The act plays a crucial role to safeguard the interest of individuals and make it illegal for corporate entities or individuals to sell personal information or allow third party the use of data. Singapore has a similar Act that came into force in 2013. On the issue of the possibility of regulating local online portals as done in Singapore, Ahmad Shabery said that MCMC is studying the issue. "There is a limit, even for countries that propagate freedom of expression," said Ahmad Shabery.

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IFAI Shows Teeth with €1m Fine on Bank

The Mexican data protection authority, Instituto Federal de Acceso a la Información y Protección de Datos (IFAI) has imposed a fine on Banamex, the Mexican division of Citibank, of 16,155,000 MXN, approximately €1m or $US 1.3m. A data subject had sent a letter requesting Banamex to cease processing his/her personal data; however the company failed to comply. Following this, the Director General of Substantiation and Sanction wrote a letter to Banamex following a complaint from the data subject; however the company did not comply within the 10 days accorded to them. The IFAI further announced fines of approximately €130,000 ($US 170,300) against Mexican bank Caja Popular Cristo Rey and approximately €76,300 ($US 100,000) against fitness club Sport City. There is an opportunity for the companies to appeal the fines. The increase in enforcement follows Mexico's acceptance as the second formal participant of the Asia-Pacific Economic Cooperation Cross Border Privacy Rules System.

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Convention 108 Accession to Strengthen DPA's Powers

Morocco has adopted a bill approving the Council of Europe's (CoE) Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data. Once ratified, Morocco will become the second non-member country of the Council of Europe to accede to Convention 108, following Uruguay. "The Moroccan Data Protection Authority hopes that ratification will lead to amendments to the Moroccan [data protection] law," said Floriane Leclerc, representative for the Association of Francophone Data Protection Authorities (AFAPDP). "It needs to be modified to reinforce the authority's ability to enforce the law, [and] its financial and functional independence" Morocco was first invited to accede to Convention 108 on 30 January 2013. Convention 108 is the first legally binding instrument governing data protection, adopted by the CoE in 1981, establishing minimum data protection standards. The CoE is in the process of discussing proposals to modernise the Convention in light of the upcoming changes proposed by the draft EU Data Protection Regulation. Morocco's accession will bring the total number of countries party to the Convention to 47.

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London College Scam Gang Jailed

Three people who ran a fake college have been jailed for a total of 22 years, following an investigation. Sohail Akhtar, Noasheen Muhammed, and Waqar Bhatti, were all found guilty of conspiring to assist a breach of immigration law following a 3-month trial. During the trial, a jury heard how Bhatti set up Middlesex College in 2004 and then employed his friend Akhtar and Akhtar's sister Noasheen Muhammed to run operations. The college was offering courses in anything from fashion to law at undergraduate and post-graduate level. The college claimed that some of these courses were being run on behalf of genuine universities. The college ran only a small number of courses in basic English, and was largely a front for conning genuine students who wished to study in the UK and the authorities into granting visas for bogus students. At the time, the college claimed to have around a thousand students enrolled. Officers discovered that the trio had printed the signatures of genuine former members of staff on false qualification certificates and enrollment forms to add a cover of respectability. "This was an extremely long and complex investigation into three individuals who spent years conning both legitimate students and the authorities," said Rob Allen, London's criminal and financial investigation team.

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HR e-briefing: Criminal Records Certificates - What's Changing?

A number of recent developments in relation to the Disclosure and Barring Service (DBS) and criminal records checks will affect employers, in particular the new update service being launched on 17 June. The new subscription service is intended to make the vetting process of job applicants faster and more straightforward for employers. It will allow individuals, subject to them having subscribed to the update service for an annual fee of £13, to keep their DBS certificate up-to-date so they can take it with them when they move jobs or roles. There is no fee for volunteers. Employers will be able to carry out free, online, instant checks, known as status checks, to see if any new information has come to light since the certificate's issue, provided the same type and level of check is required, the individual has subscribed to the update service and has consented to the employer's check. To coincide with the launch of the update service, the DBS will only issue DBS certificates to the individual applicant, which will provide applicants with the opportunity to review and challenge any of the certificate's content before it is released to a registered body.

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Background Screening Jobs

Visit the Job Board for the Employment and Tenant Screening Industry. Here you will find resumes of people with industry experience and employers seeking applicants with experience in Employment and Tenant Screening and related businesses.


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2013 Events ( Click Here to View full list of Events ) - Updated Monthly

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Drug and Alcohol Testing Industry Association (DATIA), 2013 Training Course Schedule, visit

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