Top Trends for 2010

International screening will be more prevalent: 

International background checks have presented challenges for employers considering that there are 192 countries in the world (using the United Nations membership list).  That means that there is a great deal to keep track of. Every country of course has its own system and rules.  Added to that are international data and privacy protection issues.  In the past, some employers have avoided international background checks due to the perceived difficulty.  Due to the number of resources now readily available, an employer that fails to include an international dimension to their screening could well find that they are not exercising due diligence in hiring when it come to applicants that have spend time outside of the United States. 

However, international screening is more complicated then domestic U.S. screening.  The complications are compounded by the fact that different screening organizations are giving information to employers that appears to be contradictory.  Some firms say certain countries do not have criminal records available, while another firm may disagree.  Some firms say that a special release is needed whereas other firms indicate that for a number of countries that no additional releases are needed beyond what the applicants normally signs.  In this age of information, it is odd that there is still uncertainty  as to exactly what criminal records are available from each country, and the nature and coverage of the records, such as whether the record is just for a particular court, city or state (or province), or nationwide.   This coming year could well see the emergence of generally agreed upon best practices for international criminal checks.

Which state's laws to follow

In order to give applicants all of their rights under state law, the next issue is which state's laws apply. Assume that a California resident is applying for a job in Ohio with a firm that is owned by a company in New York, and that a California screening firm does the background check. Both California and New York have a seven-year restriction on criminal records, but Ohio does not. Even though the applicant would likely move to Ohio if he gets the job, at the time of the search is he still a California resident. If the candidate has a criminal record in California older then seven years, can it be reported for a job in Ohio by a California screening firm? Can the candidate sue in California or New York for reporting a conviction that was too old under California and New York law, even though it would be permissible under the laws of Ohio?

Here is a rule of thumb-

The employer should first consider the law of the state where the employment is to occur. However, an employer or screening firm needs to understand where a consumer can possibly sue them, and consider the laws of that state. If the laws are contradictory, then a choice must be made as to the state that would most likely have jurisdiction over a lawsuit.

There are several issues to consider when deciding which state's laws to follow.

1. The first issue is what claims can be brought in what court. This is sometimes referred to as ìsubject matter jurisdiction.î This can be a complex issue since there are two court systems in the U.S. - federal courts and state courts. A legal action for violations of the FCRA may be brought in federal court since FCRA Section 618 provides for federal jurisdiction. However, a consumer cannot bring claims in a federal FCRA lawsuit in the nature of defamation, invasion of privacy, or negligence since those are pre-empted by FCRA section FCRA 610(e) except as to information furnished with malice or willful intent to injure. However, there are state claims that can be litigated in federal court, such as violation of a state's civil rights statutes. To get around federal limitations on certain claims, a plaintiff may attempt to bring an action solely under state law in state court. An employer or screening firm sued in state court under state law may argue that the claim is still pre-empted under federal law and ask for removal to federal court. [1]
2. The second issue is venue. Venue means a place where an act or injury occurred. It is the proper place (or to use a legal word, forum) for the lawsuit.
3. The third issue is jurisdiction. Jurisdiction means ability of court to exercise power over a business or a person.[2] Just because the applicant may have been injured in Ohio does not automatically mean an Ohio court has any power over the New York employer or the California based CRA. For the applicant to go into an Ohio court and to file a lawsuit, the Ohio court must have personal jurisdiction over the parties.

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[1] However, one federal district court in the Eastern District of Kentucky has ruled in 2006 that FCRA Section 610(e) does NOT prevent a consumer from suing for a state court claim for  defamation because FCRA Section 610(e) only provide immunity for disclosures required under law, but  does not give immunity where a consumer report is inaccurate. This can have important implications for background firms.  

[2] This is different from choice of law or Conflict of Law. In general terms, Conflict of Law means which law a court should apply in a lawsuit where the case has a relationship to more than one state. Factors include the place where injury occurred, place where conduct occurred that caused injury, the domicile of the parties, and where the relationship between the parties is centered. Jurisdiction refers to the power of the court to even exercise control over the parties to the lawsuit in the first place.

2010 Pre-employment Screeners Conference - Clearwater Registration

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2010 Pre-employment Screeners in Human Resources Conference - Clearwater Registration

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