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Bloomberg Business Week has a story this week about a Wisconsin man who is suing the state for misattributing criminal records to him when employers and others do a state criminal records check.

It turns out that the records belong to a person with a different name and date of birth who used the man’s name during an arrest, which resulted in the man’s name being included as an alias on the offender’s criminal record. When a background screening firm requests records from the state in conducting a background check, the state provides the offender’s records.

I can see why the state would report the record. They receive limited information from requesters and, if the requesters know what they are doing, they should be able to confirm or eliminate the record before reporting it to an employer.

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In a blog post on the Harvard Business Review website, Tammy Erikson examines whether “high potential” programs designed to identify and coach employees who are destined to rise in the organization are out of step with the workforce that is coming of age today. Flatter, less hierarchical organizations might benefit more from recognizing “lateral career paths” (ie, cross training to keep employees interested and engaged in the organization).

Erikson writes:

Singling out a few people for development doesn’t work for corporations because the practice doesn’t recognize the shifting nature of its employee population, the work being done, and the future leadership needs.

And as the target for hi-po programs shifts to members of Gen X or Gen Y, I find these programs don’t do much for the people selected either. Being labeled “high potential” works with Boomers. We may not like it, but the truth is, if we’re selected, it’s one more sign that we’re winning in our over-populated, competitive world. And if we’re not, it’s a powerful incentive to try harder next year.

But all this competitive ranking and rating falls flat with many X’ers and Y’s. It’s not even that they don’t like it — they don’t get it. It doesn’t seem relevant. For many, it assumes a set of career goals and a path to get there that they don’t necessarily share.

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The topic of Fair Labor Standards Act (FLSA) overtime violations came up several times during last week’s Employment Law Symposium, hosted by the Mid-Cities Human Resources Association and sponsored by Imperative Information Group.

As this bizjournals.com article suggests, many employers don’t understand all of the variables in calculating overtime, particularly in relation to bonuses. The small business in the article was sued for overtime violations by three employees after paying their employees a bonus for doing a good job. The employees alleged that the bonus increased their regular rate of pay and sued for the additional overtime due them for the period covered by the bonus. The business owners spent $400,000 defending the lawsuit before settling.

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Winston Churchill “coined the expression “terminological inexactitude”— a play on words alluding to the misapplication of labels and, by extension, the damage that can be done by engaging in this practice,” says Lon Roberts in this very interesting article published in the current issue of Defense AT&L.

The term “analysis paralysis,” says Lon, is an example of this condition. By understanding the specifics of the different kinds of analysis paralysis, managers can better guide projects through the analysis quagmire.

We’ve all encountered (or been the victim of) analysis paralysis, the inability to make a decision because of seemingly never-ending sources of information to be analyzed. Roberts breaks analysis paralysis into three kinds of paralysis:

1. Analysis Process Paralysis
2. Decision Precision Paralysis

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With the medical use of marijuana deemed legal in Colorado, employers face competing legal issues in deciding how to respond to positive drug screens. Safety and legal issues may be at odds and with no case law to guide them, Colorado employers’ compliance efforts may be up in smoke.

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The U.S. Equal Employment Opportunity Commission (EEOC) last week announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million. The total number of charges was actually more than 2,000 fewer than in FY 2009, a record-setting year.

Race, sex, and retaliation claims were the leading charges filed. The number of retaliation charges (charges that the employer has taken punitive action against an employee for taking some legally protected action) has increased by 50% in the last five years.

The comprehensive enforcement and litigation statistics for FY 2009, which ended Sept. 30, 2009, are posted on the agency’s web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Now might be a good time to revisit your supervisor training and your employment practice liability insurance limits.

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The Wall Street Journal ran an article today titled More Job Seekers Scramble To Erase Their Criminal Past discussing how job seekers are seeking to legally delete their criminal records for minor offenses.

Though written from the job seeker’s point of view, the article does a fair job of highlighting the increasing flexibility by legislatures and courts to erase or limit the use by employers of “minor” criminal offenses. There was, however, one significant error by the author related to the legal use of criminal records.

As a background screening firm, we typically only become aware of expunged or sealed records when they appear in the so-called “national” criminal records databases and we are unable to verify them with the court. Expunged records legally no longer exist and employers should not even be aware of them, much less use them when evaluating someone for employment. Otherwise they risk litigation from the aggrieved employment applicant, as one local bank found out recently.  (This is a key reason why we always verify any criminal records from a database before we report them to our clients.)

For folks who get in minor legal scrapes and have met the court’s requirements, expunction or non-disclosure orders make sense. And certainly the wrongly accused should have a means of erasing their history with the criminal justice system. Some states, however, seem to be tipping the scales in favor of offenders rather than allowing employers to make reasonable and educated hiring decisions.

There was one significant error in the article of which readers should be aware. The article claimed:

Companies can make hiring decisions based on conviction records, but not on arrests that haven’t resulted in convictions, according to the U.S. Equal Employment Opportunity Commission.

That’s not accurate. First of all, the EEOC’s protections are for individuals in protected classes and don’t generally apply to white individuals.

Even where individuals are in a protected class, the EEOC has specific guidelines allowing for the use of non-conviction records. Basically, before making an adverse employment decision based upon non-conviction criminal records the employer must ensure that:

• The alleged conduct is related to the position sought including review of the nature and gravity of the offense, the time that has passed since the arrest, and the nature of the position sought and
• There is a likelihood that the individual engaged in the conduct alleged.

However, there are other instances where cases are dismissed or not prosecuted but still may be of legitimate interest to an employer. For instance, if an individual has been accused of domestic violence on multiple occasions but each charge was dismissed “at the request of the complaining witness,” an employer considering the individual for a care-giving role with vulnerable populations would be wise to review those circumstances more closely before hiring the individual.

Employers should be aware that California and some other state’s laws go beyond the EEOC’s guidelines in restricting the use of non-conviction information. Additionally, the federal Fair Credit Reporting Act limits the reporting of non-conviction information by background screening companies to seven years after the arrest or final dismissal.

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The heat continues to rise on employers who use credit reports in making hiring decisions.

Workforce Management just ran a piece about stepped up EEOC enforcement actions against employers who use credit reports in a manner that adversely impacts protected classes.

Josh LeTourneau, one of the bloggers at Fistful of Talent, did a great job of arguing against the indiscriminate use of credit reports in an article posted today.

When I was on the HR manager side of the desk, I was always dubious of using credit as a predictor of dishonesty. Now, after more than a decade as the owner of a background investigations firm, I routinely try to dissuade clients from even looking at applicants’ or employees’ credit reports. In many cases, I’ve just refused to sell the reports to employers who I believed were going to use them unwisely.

I have yet to see a study that correlates bad credit and dishonesty.

Like so-called “national” criminal records and other database-based screening products, credit reports are instant, relatively inexpensive, and easy to sell. They are also full of information that is often neither job-relevant or accurate. The problem is that too many HR folks aren’t educated by their screening partners in the appropriate use of these and other selection tools (personality assesments come to mind).

While we would all like to have perfect employees without any financial. personal, or professional blemish, they don’t exist. Employers who paint candidates with less than ideal credit or a criminal history with a broad brush will often miss opportunities to add qualified and committed employees to their organizations.

Smart employers have a plan on how they will evaluate any screening results before they ever order the background check. They make sure the criteria is job-related and that there is a clear business-necessity for any adverse decisions that may be made. That will help keep you out of court and help you build a competitive workforce.

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Last week, I had a chance to visit with Dr. Don Mills, Vice-Chancellor for Student Affairs at Texas Christian University, and Jonathan Roark, TCU’s Director of Emergency Preparedness and Business Continuity, about the Horned Frog’s H1N1 preparations. Their insight should be useful for other employers are preparing for this unusual flu season.

TCU began their business continuity planning six years ago when the avian flu became a world-wide health concern. Then, when H1N1 surfaced this spring, they began preparing for this fall’s flu season.

TCU’s planning efforts focused first on education and prevention efforts. “We knew we couldn’t beat it, but we might be able to manage it,” said Dr. Mills.

One major concern for employers like TCU is controlling the infection by limiting employee’s exposure to the virus, which means encouraging those with influenza-like illness (ILI) to stay home. While TCU didn’t formally change their attendance policies, they deciding to handle each circumstance on a case-by-case basis. TCU made it clear that “nobody is going to lose their job because they are sick and we don’t want anyone to suffer economically because they get sick – but mostly we don’t want them coming to work and other people getting sick,” said Dr. Mills.

All of their planning was put to the test during the first week of the fall semester when 200 student flu cases were reported. Because of their preparations and the relatively short duration of the flu strain (3 – 5 days), they were quickly able to move past that initial challenge but they are still experiencing 35 – 50 cases per week. Dr. Mills said that the current case load is very manageable. “We feel pretty fortunate. We think it is because we’ve been aggressive in telling people what they need to do.”

Although they don’t expect a major outbreak of the flu to occur on their campus, Dr. Mills believes that TCU is ready for a worst case scenario. Their business continuity plan in the event a large number of employees be unable to report to work at the same time includes:

• Plans to consolidate work units in key areas such a food service,
• Cross-training employees, and
• Identifying temporary sources for employees.

Jonathan Roark has been coordinating TCU’s preparation efforts with state and local health officials, as well as maintaining regular communication with other area institutions about their preparation efforts and experiences with infections.

Thanks for Dr. Mills and Mr. Roark for their willingness to share TCU’s experience and insight with the community. Enjoy the video!

On a side note: This was our first effort at video blogging (vlogging). Two things I learned:

1. Don’t forget the dang tripod (that’s why it has a Blair Witch Project shake).

2. If you’re going to interview two people with one camera, have them sit next to each other!

Also, thanks to our marketing intern, Christina Quezeda, for her efforts in coordinating this interview!

Mike Coffey is president of Imperative Information Group, a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check.  For more information about Imperative Information Group’s services, contact Mike at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com

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Doctor’s offices and hospitals around the country have been flooded with cases of H1N1 - the swine flu – and Texas is a hotspot. The Texas Department of State Health Services has classified the flu as “widespread” - it’s highest measure of infection rates – meaning “there are increases in flu-like illnesses and recent lab-confirmed flu cases in at least half of the state’s regions.”

Huntsville closed their public school campuses for a couple days last month due to flu-related absences and a hospital in Austin erected tents to treat the influx of patients complaining of flu-like symptoms. Closer to home, Dallas and Tarrant Counties both recorded their first swine flu-related deaths in the last month.

According the the CDC, the H1N1 vaccine won’t be available until mid-October and the currently available seasonal flu vaccine does not protect against H1N1. The longer individuals are able to delay the spread of both H1N1 and seasonal influenza, the higher the likelihood people accessing the vaccination in time to prevent falling ill.

Flu prevention and contingency planning will be very important for businesses this fall. Illness in their workforce, employee’s families, or even elsewhere in the supply chain could significantly injure the bottom lines of firms just beginning to recover from the recent recession.

In the coming week, the Imperative Blog will include links to resources about workplace flu prevention measures and planning to ensure business continuity in the face of a significant outbreak.

Stayed tuned…

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H1N1 – the swine flu – is back with a vengance. While the severity of this fall’s H1N1 outbreak is unpredictable, the President’s Council of Advisors on Science and Technology has described as “plausible” that 30-50% of the US population may be infected and as many as 1.8 million Americans may be hospitalized with H1N1. Because most of those who are infected will be employed, many employers may scrambling to keep their doors open with a reduced workforce. Later this week, we’ll talk about disaster planning (disaster may overstate it – unless you’re one of the employers who loses half of their workforce to the flu), but first, let’s review what action the experts are suggesting employers take to help keep their workforce healthy.

Planning for the 2009 H1N1 Influenza: A Preparedness Guide for Small Businesses, published by the Department of Homeland Security, covers a number of topics from health tips to emergency planning suggestions. One section of the guide shares ten tips for keeping employees healthy during seasonal outbreaks of viruses like the flu:

• Develop policies that encourage ill workers to stay at home without fear of any reprisals.
• Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close.
• Provide resources and a work environment that promotes personal hygiene. For example, provide tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.
• Provide education and training materials in an easy to understand format and in the appropriate language and literacy level for all employees. See www.cdc.gov/h1n1flu/business.
• Instruct employees who are well but who have an ill family member at home with the flu that they can go to work as usual. These employees should monitor their health every day, and notify their supervisor and stay home if they become ill. Employees who have a certain underlying medical condition or who are pregnant should promptly call their health care provider for advice if they become ill.
• Encourage workers to obtain a seasonal influenza vaccine, if it is appropriate for them according to CDC recommendations (http://www.cdc.gov/flu/protect/keyfacts.htm). This helps to prevent illness from seasonal influenza strains that may circulate at the same time as the 2009 H1N1 flu.
• Encourage employees to get the 2009 H1N1 vaccine when it becomes available if they are in a priority group according to CDC recommendations. For information on groups recommended for seasonal and H1N1 vaccines, please see www.flu.gov. Consider granting employees time off from work to get vaccinated when the vaccine is available in your community.
• Provide workers with up-to-date information on influenza risk factors, protective behaviors, and instruction on proper behaviors (for example, cough etiquette; avoid touching eyes, nose and mouth; and hand hygiene).
• Plan to implement practices to minimize face-to-face contact between workers if advised by the local health department. Consider the use of such strategies as extended use of e-mail, websites and teleconferences, encouraging flexible work arrangements (for example, telecommuting or flexible work hours) to reduce the number of workers who must be at the work site at the same time or in one specific location.
• If an employee does become sick while at work, place the employee in a separate room or area until they can go home, away from other workers. If the employee needs to go into a common area prior to leaving, he or she should cover coughs/sneezes with a tissue or wear a facemask if available and tolerable. Ask the employee to go home as soon as possible.

In addition to the information above, there is also a set of tips tailored toward individual health maintenance within the CDC’s guide. Employers might also share this information from the CDC’s Germ Stopper site with employees. The CDC also has downloadable posters on how to “cover your cough” that you might post around your workplace – or the door to your kids’ bedroom.

Hint: Cough into your elbow. Your coworkers (and your dry cleaner) will thank you for it.

There are more extensive details on each of these tips on the www.flu.gov website.

The Occupational Safety and Health Administration’s website contains a fact sheet titled What Employers Can Do to Protect Workers from Pandemic Influenza that explains a “hierarchy of controls” employers should address to limit workplace exposure to hazards of a pandemic flu outbreak. In order from most to least effective, OSHA lists

• engineering controls,
• administrative controls,
• workplace practices, and
• personal protective equipment.

These controls range from creating physical barriers like plastic sneeze shields to communication efforts to reconstructing some company policies. Although every one of these suggestions would cost money, business owners have to determine if a foreseeable threat to their company’s revenues brought on by employee absenteeism would cause greater damage.

When employees are out with flu-like symptoms, they shouldn’t rush back to work. While the CDC has reduced the time that they recommend that those who appear to have recovered from the flu, they still recommend “that people with influenza-like illness remain at home until at least 24 hours after they are free of fever (100° F [37.8°C]), or signs of a fever without the use of fever-reducing medications.” During the spring H1N1 outbreak, “most people with the 2009 H1N1 influenza virus who were not hospitalized had a fever that lasted 2 to 4 days; this would require an exclusion period of 3 to 5 days in most cases.” Employers should communicate this to employees and encourage them be cautious about returning to work.

According to the Department of Human and Health Services testimony before Congress, about 25% of businesses do not reopen following a major disaster, so smart employers will take steps to minimize the effects on H1N1 on their employee populations.

Coming Wednesday: Disaster planning – what if half (or more) of your employees can’t come into work?

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Last Friday, I attended the TCU Neely School of Business’ conference on business uses of social media. It was a great event that included a speaker from LinkedIn, Hubspot, SABRE Holding’s Cubeless team, and Handango, as well as authors of recent books on Twitter and Facebook.

Using LinkedIn and Facebook for recruiting candidates was a hot topic, especially given the fat-free diets many recruiting departments are on these days. A couple mentions were also made with regard to using social media sites to background check applicants (executive summary: a bad idea… read on).

Worforce Management published an article last week on the same topic. In that article, my friend Pam Devata, an partner in Seyfarth Shaw’s Chicago office, points out:

“Sourcing from professional network sites such as LinkedIn carries a risk that the method could be challenged on discrimination grounds,” Devata says. “It represents a hiring pool that is not open to the general population. Using a limited network may have a disparate impact. If hiring through these networks can be challenged, it will be.”

Notice that Pam doesn’t say “don’t use LinkedIn to recruit.” She simply points out that there is a disparate impact risk in limiting your recruiting tools. Lawyers from other firms make similar observations and advise against using the social media websites as background checking tools. All great advice.

So, I was surprised when one of my favorite HR bloggers, Kris Dunn at Fistful of Talent, responded with an article called ‘Hey Employment Law ”Experts”, You’re Killing My Profession.’ Kris isn’t having any of it and argues risk-averse HR departments may take such advice as gospel to their own detriment. Jessica Lee had a similar but more gentle response. I agree that there is a risk there but at the same time I believe that there is a bigger risk of using social media as a recruiting or background screening tool without first evaluating it’s place in the larger legal and talent management framework.

My response to Kris’s article at the FOT website follows:

Anyone who has been through an OFCCP audit or defended an employment discrimination claim recognizes that the advice in the Workforce Management article is on target. On the flip side, though, I agree that too many HR departments are too-risk averse and take legal cautions as gospel.

The government and juries will look at the composition of your applicant pool and your outreach efforts to traditionally disenfranchised populations. You’d better be ready to defend your practices, whatever they are. Identifying and sourcing candidates through social media is great IF your pool of candidates is sufficiently diverse. If not, you better be reaching out to other recruitment sources (ethnic chambers of commerce, traditionally-minority institutions, groups assisting older workers or veterans transition to new jobs, etc.) to at least try to identify qualified candidates. Otherwise, you are painting a target on your back – not to mention potentially excluding some extremely qualified candidates to whom you may not have been exposed otherwise. But by all means, use social media (particularly professionally-orient social media like LinkedIn) to identify potential candidates.

Once an individual has formally expressed interest in a position (ugh, the old quandry about when in your organization an interested party becomes an applicant) the use of social media should be extremely cautious. Using a candidate’s personal blog or facebook page to evaluate their freak-factor is lazy and would be hard to defend against discrimination claims. The EEOC’s E-RACE initiative is targeting these sorts of unvalidated selection procedures.

I’m told that LinkedIn’s Recruiter platform has a means of eliminating photos and other potentially discriminatory information from information received by recruiters. That’s smart. It protects the recruiter from claims of bias (intentional or unintentional).

And while the FOT authors are very professional and deliberative recruiters who will do whatever is necessary to land the best talent for their firms, I’ve known some recruiters and many hiring managers for whom the first impression is as far as they ever get. If that first impression is a five-year-old picture of the candidate doing something stupid in college posted on flickr.com or tweetpic by someone else, that otherwise qualified candidate is out of the game and everyone loses.

The best advice I have for employers who believe that their employees’ online presence is job-relevant, need-to-know information is to create a firewall between the individual conducting the “social-media background check” and all hiring authorities. The person conducting the research should have clear guidelines about what information would be relevant to the position for which the candidate is being considered. Any potentially relevant information should be shared with a neutral member of management who can assess the information fairly without risking prejudicing the hiring manager prematurely. This reviewing authority might be a senior member of HR, Security, Risk Management, Legal, or perhaps even someone in the chain of command above the hiring manager. In some cases, your background screening firm might provide this service with a strict understanding of what will and will not be reported.

I know that seems a lot more complex than just googling candidates because your CEO “doesn’t like freaks,” but I’ll bet he doesn’t like all the lost productivity that comes from employee relations headaches and lawsuits, either.

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As an applicant, providing information to potential employers is routine when you’re looking for a job, but using discretion about who exactly you disclose it to is imperative. In this CraigsList Scammer article from the News-Sentinel, Aaron Organ cites just one of many unfortunate incidents that occur on a daily basis.

A man in Michigan posing as an individual who needed a babysitter required applicants for the position to provide personal information in addition to a twenty five dollar background investigation fee, something employers typically do not require applicants to pay. Luckily, police were notified of the strange activity and arrested the scammer in a sting operation, but individuals answering classified ads must educate themselves and remain careful about internet scamming and phony employers in order to prevent something much worse than losing a few bucks—identity theft.

The CraigsList website actually provides a link to a list of personal safety tips that should be followed when making a transaction with an individual you don’t know. You can find the list of helpful pointers here.

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