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Ninth Circuit Case Effects Timing of Background Checks and Pre-employment Physicals

A Ninth Circuit federal case decided this year has a potential impact on employers who conduct both pre-employment background checks as well as job-related medical tests.  In Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005), the plaintiff’s were seeking jobs with a major airline. They were issued conditional offers of employment contingent upon passing both their background check and medical examination.  Their blood was drawn prior to the background checks being completed.  According to the case, the airline then discovered a medical condition, and rescinded the job offers on the basis the applicants did not disclose the medical condition during the medical exams.

The plaintiffs sued for a violation of both the federal Americans with Disability Act (ADA) and also under the California law governing employment discrimination, the California Fair Employment and Housing Act (FEHA).  The plaintiffs alleged that under federal law and California law, before a medical test can be performed, there must first be a "real" job offer on the table.  Since the background check was not yet completed before the medical information was obtained, the plaintiffs argued that the employer had not met federal and state standards and had conducted a medical test before there was a job offer.

The court accepted the argument, ruling that in order to conduct a “post-offer” medical exam, the employer must have first evaluated all relevant and available non-medical information. Where the employer still has non-medical information to evaluate, such as a background check, it is premature to request a medical exam because there has been no job offer.   The rule has two benefits for job applicants.  First, it allows a job applicant to determine if they were rejected for medical reasons or some non-medical reason obtained in the background report.  Secondly, it safeguards the applicant from having to reveal personal medical information prematurely.  If the applicant is not offered the job, then they are not put in to a position of providing personal medical information for no reason.

The argument that the medical examination and blood sample were collected but not utilized until AFTER the background check was completed was rejected.  The Court held that applicants have a right to not undergo a medical examination at all until there is a “real” job offer first.  Both federal and state law allows an applicant to shield their confidential medical information until they know that if they meet the medical requirements, they have the job.

This case has a potential impact on any employer that conducts a medical examination post-offer but before actual employment begins.  For example, an employer who conducts pre-employment physicals should consider waiting until the background check is successfully completed before performing a physical or any other medical procedure

ESR clients, Employers and HR and Security consultants may obtain a copy of the case by contacting Jared Callahan at jcallahan@ESRcheck.com or 415-898-0044 ext. 240.

Five Common “Fibs” Told by Job Applicants on Resumes and Applications

Every job applicant has the right to put their best foot forward and to accentuate the positive.  However, when such efforts cross the line into fabrication and fantasy, employers need to be concerned.  Based upon many years of performing background checks, here are five common “fibs” told by job applicants during the hiring process:

1.      Employment Inflation:  Applicants give themselves a promotion in position by claiming an inflated job title or responsibility.  An applicant may enhance a previous job from an assistant position to a management job, even though they never supervised anyone.

2.      Covering up Employment Gaps:  Unexplained employment gaps are critical for employers.  Without knowing where someone has been, it makes it harder to perform criminal checks and opens the possibility that an applicant may in fact have been in custody for a criminal offense.  Stretching out job dates to cover up gaps in employment is a big problem.

3.      No Degree: There is a growing problem with applicants claiming degrees they do not have.  This can stretch from claiming a degree for a school the applicant never attended, to turning some units into a BA or a BA into an advanced degree.  Beware of applicants who claim the school made a mistake and then provides an authentic-looking degree.  There are websites that will give anyone with a credit card a "genuine” imitation degree.  When in doubt, send a copy of the supposed degree to the school for verification.

4.      Degrees from Fake School: Anyone with an e-mail address receives almost daily the opportunity to obtain a degree instantly- it only takes a credit card.  Beware of diploma mills and phony schools.  Some of the diploma mills are so sophisticated that they have even invented fake accreditation agencies.  However, diploma mills should not be confused with legitimate distance learning schools that provide an education opportunity.

5.      Denying Criminal Records:  It is critical to ask all applicants on both an application form and in an interview if they have a criminal record.  Although a criminal offense may not automatically cause an employer to reject an applicant without some showing of business necessity, an employer who unwittingly hires someone with an unsuitable criminal record creates unnecessary risks for themselves, their workforce and the public, and creates the possibility of workplace violence or some other criminal act against co-workers, clients or the public.

The bottom line:  Every employer has a duty to take reasonable precautions to hire individuals who are qualified and fit for the job.  An employer who fails to exercise due diligence opens up the possibility of workplace violence, fraud, theft and lawsuits for negligent hiring.

For details on how to implement a Safe Hiring Program to avoid the legal and financial nightmare of a bad hire, ESR President Les Rosen has written, The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of the Workplace (512 pages/Facts on Demand Press)

Colleges and Universities Turning to Background Checks

A new hot-button issue at colleges and universities is whether background checks should be performed on professors.  Colleges and universities have the same due diligence obligation of any employer when it comes to background checks of regular staff members.  However, screening professors became an issue as a result of recent highly publicized developments in the academic world.  A large East Coast university discovered that a professor that taught there for four years had murdered three people forty years earlier.  In another incident, a school in the western part of the US allegedly hired a faculty member three years after a child pornography conviction.

Such incidents have motivated some schools to institute background checks and still other schools to consider the possibility.  Some of the arguments in favor of background checks for professors and teachers include:

1.      Colleges and Universities occupy a special position of trust in our society, where parents, taxpayers, alumni and donors have a perception that students are in a “safe” academic environment.

2.      Background checks demonstrate due diligence.

3.      Background checks may potentially discourage applicants that are unfit from applying for teaching positions in the first place.

Conversely, critics of higher education background checks in colleges and universities note that:

1.      Incidents of a faculty member with a criminal record harming student or co-workers have not been a significant issue in higher education.

2.      Given the unique environment of a college or university, faculty screening may cause a chilling effect on academic freedom.

3.      Utilizing a low-cost check based on databases has questionable ability to discover an applicant with disqualifying criminal records.

4.      Screening all professors is unnecessary.  Although it may make sense to screen a professor with access to children, nuclear or biological material or military secrets, there is less value in screening, for example, a professor of European Art History.

However, the bottom line for colleges and universities is that even if one incident occurred that could have been prevented by a background checking program, legislators, alumni, parents and contributors  will be demanding to know why a school did not exercise due diligence. In comparing the costs to the benefits, a background screening program provides a great deal of due diligence.

(The ESR newsletter will address the numerous practical and legal issues in involved in screening prospective students in a future issue)

ESR Announcements and Seminars

·        Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, starting in the San Francisco Bay Area and continuing throughout the US.

·        ESR wrote the book on background checks! – The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.

ESR will be participating in the following seminars across the United States.

ESR Announces its Northern California Seminar series--"Avoid Negligent Hiring-Best Practices and Legal Compliance."

Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep a business productive and out of court, including how to obtain and utilize criminal records and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.

Thursday, November 10 - Pleasanton/Dublin Four Points Hotel by Sheraton

Time:  Check-in and refreshments: 6:00 to 6:30 pm

Program: 6:30-7:45 pm

ESR is an approved provider for continuing education credit from HRCI.  This course provides 1.25 hours of continuing education credit.  Written instructional material will be provided.  There is no charge for the first 45 attendees.  See:  http://www.esrcheck.com/ESR_seminars.php to sign up and for more information.

October 27, 2005 Dallas/Ft. Worth, TX "Human Resources, Homeland Security and the War on Terrorism"  2005 HR Southwest Human Resources Conference and Exposition.  www.hrsouthwest.com

November 10, 2005 Pleasanton/Dublin, CA Four Points Hotel by Sheraton ESR SPONSORED SEMINAR "Avoid Negligent Hiring-Best Practices and Legal Compliance." Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.

November 13, 2005 Tampa, FL National Conference of Background Screening Firms- "Legal Update-- What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening." (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm

January 20, 2006 Kennedy Information National Audio Conference on, "Background Checks and Recruiting -- Avoiding Negligent Hiring." (Details to be posted)

March 10, 2006 Oakland, CA "Extreme Caution Advised: Dealing With Federal And State Laws Regulating Pre-Employment Screening And Safe Hiring," Lorman Seminars

March 21, 2006 Las Vegas, NV "International Pre-employment Background Screening - Dealing with the Practical and Legal Challenges."  29th Annual SHRM Global Forum

March 30, 2006 San Diego, CA. "Pre-employment Background Screening for HR and Staffing Professionals."  SHRM 37th Annual Employment Management Association Conference and Exposition (EMA)

Contact ESR for further details.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release