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Tuesday, July 18, 2017

Frequently Asked Questions



During my time providing investigative services to businesses the same questions regarding pre employment screenings and background checks were repeatedly asked. To address those questions, we developed a list of frequently asked questions, which are shared below. I hope this will help answer questions you may have and guide you through the hiring process.

·      What are an employer’s legal obligations?
  • Fair Credit Reporting Act (FCRA). As of October 1, 1997 the FCRA requires that all employers who request background checks for pre employment screening purposes have a written consent from the applicant. 
  • Civil Rights Act of 1964, Title VII. Employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job.
  •  Equal Employment Opportunity Commission (EEOC. The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”
  • National Labor Relations Act (NLRA) was enacted in 1935. The Act allows for the National labor Relations Board to enforce laws that give employees the right to act together for improved pay and working conditions, even if they are not part of a union. 
·      What is a “National” record check?
  • We were always asked to conduct national criminal record checks. This request is difficult to explain because most people’s perception of the criminal justice system is marred by television. Simply put, there is no “national” database that houses criminal records. Records of arrests and adjudications are kept at the local courthouses and county jurisdictions. Conducting a non-law enforcement national background check would be better said as a “nationwide” check. To obtain a thorough picture of a person’s criminal past, all levels of government entities maintaining criminal records should be searched. Read our post "National" record checks, which further explains the subject.
If there is no national database, how do you get the most detailed information?
  • Look for companies that search both public and commercial databases within the Federal, State, and County jurisdictions. Analyzing the information to ensure the utmost accuracy for your screenings.

·      What is “Ban the box”?
  • Ban the box is national grassroots movement to remove the question, “Have you ever been convicted of a crime” from employment applications. Many State and local jurisdictions have passed laws removing the question from government employment applications.

·      What is Bright line hiring?
  •  “Bright line” is a clearly defined rule or standard, generally used in law, composed of objective factors, which leaves little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application. 
  • A Bright line hiring example would be to not hire someone with a criminal record. Bright line hiring practices are dangerous for any business, as you may have violated the Civil Rights Act of 1964 or EEOC guidelines.
·      Can expunged records be located?
  • Sometimes. The legal term “expunged” has different definitions in different states. Some allow for the records to be sealed and treat the case as it never happened. Some change the conviction to “dismissed”, but the other details of the case are the same. In Maryland, it means to remove from public inspection. 
  • Although records are expunged, they are filed somewhere.  Third party vendors purchase data from government entities before records are expunged. They then resell that data. Although records get expunged, they remain active through third party vendors.
·      Why should I do pre employment checks?
  • Avoid the expense of making a bad hire. Bad hires can cost as much as three times the salary of the job in question
  •  Reduce liability: Putting current employees at risk by placing a violent person in the workplace.
  • Find those with a propensity for violence. Workplace violence has been found to make up 18% of all crime.
  •  Reduce of workplace accidents
  •  Reduce resume puffing. One-third of resumes have some degree of puffery
  •  Aid the applicant. During the process other names associated with the applicants’ social security number are regularly discovered. This information may help the applicant thwart identity theft.
·      Why can’t I just do checks myself?
  • You can and many do. The Internet is a very powerful tool. The questions are: Do you have time? Do you know where to look? Do you know how to decipher the information you do find? Are you sure you are looking at the correct person?
See our blog archive and topic categories for more on this topic.
FCRwhat? March 2015

Wednesday, July 5, 2017

Public Wi-Fi for dummies


Traveling and staying in a hotel I started to use the Internet via a Smartphone. I paused, thinking data usage might be tight so better use Wi-Fi. Logging into the hotel’s Wi-Fi I paused again, knowing better than to use unsecured public Wi-Fi. Thinking I was only checking the Internet for dining options, it was safe to use pubic Wi-Fi for that purpose. Then the browser failed to load, with a warning that the server was an unsecure network. Thank you Google or Apple or whomever installed a safety feature to moderate our temptations. The tricky thought occurred to turnoff the Wi-Fi, log into the account and then switch on the Wi-Fi. After some research it was revealed that this technique would still leave you vulnerable. After switching the connectivity your phone (the app or website) would renegotiate the connection, although seamless to the user, your login information would still be exchanged and visible.

Decided to look into the pitfalls and dangers of public Wi-Fi. A simple search returned many articles on public Wi-Fi risks. Lots of experts explaining how easy it is compromise networks and for unsuspecting users to fall victim. Smartphones, tablets, and laptops have become appendages to our busy Internet connected lifestyles. Data usage has become the new “minutes” and consumers are looking for ways to save on usage and ultimately money. Public Wi-Fi is a common way to cut back on data usage. However, there is risk to online security.

Risks

Norton reported in 2013 that 68% of people using public Wi-Fi were victims of cyber crime. The Norton Cyber Security Insights Report announced that in 2015 21% of Americans had their email hacked and 12% had their financial data stolen after shopping online. Millennials are a growing victim demographic with 40% falling prey to cyber crime in 2015. Although one of the more tech savvy age groups, Millennials are more open to sharing logons and passwords that compromise their online security.

When you leave the house you are still connected. Whether you login to your accounts via the cellular network or Wi-Fi, nothing is 100% secure. While 4G cellular networks are encrypted and are far, far better than an unsecured public Wi-Fi connection, there have been incidents of cellular networks being hacked. Although the effort is usually much greater than most cyber criminals are willing to make. Public Wi-Fi is a much easier target. Both due to security weaknesses and the plethora of devices being used on those networks.

Breaches

Most public Wi-Fi breaches are through man-in-the-middle attacks. Hackers place themselves either between two victims or between the user and the app and eavesdrop on the transmissions being sent back and forth. It is important when using apps and websites in public to ensure you are logging into the correct site or app as hackers can spoof those and trick users to logging into the hacker’s site.

Just because you need a password to login to public Wi-Fi doesn’t mean it is secure. It just means that there is an authentication step before you can access the router.  Additionally, the person setting up the Wi-Fi may not have installed all the available security features.  The hacker may be logging into the same network as you, giving them access to your transmissions.

When you are browsing, HTTPS is usually a good thing to look for. It means the data transfer between your device and the website is secure-on their end. There is still a possibility that you were hacked on your end. It’s like having a phone conversation but you have your phone on speaker.
The most secure networks offer end-to-end encryption. Financial apps usually are encrypted. Most big name apps/browsers/email/social media are probably secure from man in the middle attacks as the data being exchanged is encrypted, the session can be viewed but not the data. However, we’ve all read about the big guys getting hacked. Better safe than sorry later.

Reduce your risk

Some simple rules to live by while using your mobile devices in public.
When using any network that is not your own, consider it unsecure.
Never use public Wi-Fi to login to anything that requires a password. After using any network that is not your own it is wise to change passwords.
When you do use hotel or public Wi-Fi, make sure you are, in fact, connecting to the hotel's Wi-Fi and not hacker’s site. Look-alike Wi-Fi signals use names similar the hotel or business.  If you’re not comfortable, ask before logging on.
Keep your device OS up to date.
Use COMMON SENSE.

Review our blog archive for other articles cyber security:


Monday, June 19, 2017

License to drone


It’s a bird! It’s a plane! It’s a…a… a drone. That distinctive buzz. That speck of an object in the sky, hovering, but moving slightly side to side. The popularity of flying quad copters or drones has been growing in recent years. Everyone’s heard their use for package delivery, surveillance, but they are fast becoming popular for small business promotion and an enjoyable hobby for those interested in remote control flight. As the enthusiasm grows so do sales. The FAA expects the 2.5 million drones sold in 2016 to grow to 13 million by 2020. Commercial operators could purchase another 10 million.

FAA Regulation

Popularity translates to higher percentages of a drone encounter. They are being flown in congested areas that provides for the opportunity for interference with air traffic, power lines, buildings, and crowd gatherings. Most of the larger drones have the ability to attach cameras. Which brings up the issue of privacy. Congress, state legislatures, and the FAA are scrambling to get a handle on regulating drones without trampling on citizen rights and the hobby level user. To ensure the safe operation of drones in regards to nefarious use and poor decisions the FAA released Unmanned Aircraft Systems (UAS) regulations in 2015. These rules for drone operation were updated in 2016 and include licensing and registration requirements.

Since the requirement for drone registration 760,000 hobbyists registered approximately 1.5 million drones. However, the registration rule was recently challenged in court. The rule required hobbyists with drones weighing between 0.55 pounds and 55 pounds to register their drones with the FAA. On May 19, 2017, the U.S. Court of Appeals for Washington, D.C. ruled that the FAA could not make that requirement as it violated the FAA’s own Modernization and Reform Act passed in 2012. The plaintiff successfully argued that the FAA “may not promulgate any rule or regulation regarding a model aircraft”.  The FAA is considering its appeal options, one of which is Congress taking action on the issue.

FAA licensing requirements

So. Who needs a drone license? First, the difference between recreational purposes and commercial. The FAA defines recreational as flying for enjoyment- not for work, business purposes, or for compensation or hire. If you’re being compensated the use is probably under the commercial category in the eyes of the FAA.

From the FAA-
Recreational flyers are not required to obtain a pilot certificate but may if desired. If your drone is more 0.55 pounds it must be registered with the FAA.
Basic operating rules are:
  • Fly at or below 400 feet
  •  Keep your UAS within sight
  • Never fly near other aircraft, especially near airports
  •   Never fly over groups of people
  •  Never fly over stadiums or sports events
  •  Never fly near emergency response efforts such as fires
  •  Never fly under the influence
  • Be aware of airspace requirements
To fly commercially there are different levels and requirements. Basically, the pilot must be licensed and the drone must be registered.
Commercial pilots:
  • Must be at least 16 years old
  • Must pass an initial aeronautical knowledge test
  • Must be vetted by TSA
Commercial operating requirements:
  • Class G airspace
  • Must keep the aircraft in sight (visual line-of-sight)
  • Must fly under 400 feet
  • Must fly during the day
  • Must fly at or below 100 mph
  • Must yield right of way to manned aircraft
  • Must NOT fly over people
  •  Must NOT fly from a moving vehicle

This was a synopsis of FAA requirements. Visit the FAA Unmanned Aircraft Systems (UAS)-FAQ site for complete details.



Tuesday, June 6, 2017

Languages spoken?


As a customer of almost any business there is a high probability that you will interact with someone who speaks in accented English or speaks little English. As an employer, there is also a high probability that your job applicants will speak in accented English. Customers should to be patient and polite; Employers need to be cautious of not violating the law.

A colleague had a difficult time placing an in person order with a store employee who spoke accented English. They asked me if it was illegal for employers not to hire people who had difficulty clearly communicating with customers. The short answer is, yes. Any employer that discriminates against an applicant for their accent or attempts to establish an English only policy without establishing a business necessity would more than likely be in violation of Title VII of the Civil Rights Act of 1964. Employers cannot use English only policies to discriminate against employees or prospective employees due to their accent or lack of English skills.

A lot of small business owners that I’ve encountered do not have documented hiring policies. They have a basic understanding of hiring laws, but still hire who they “like” with little documentation. Establishing a hiring component such as business necessity can be laborious for small businesses.

The Equal Employment opportunity Commission explains language discrimination as follows.
Discrimination Based on Accent
Treating employees differently because they have a foreign accent is lawful only if accent materially interferes with being able to do the job.
  • Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English.
  • Jobs that may require effective oral communication in English include teaching, customer service, and telemarketing to English speaking clients.
  •   If a person has an accent but it is able to communicate effectively and be understood in English, he or she cannot be discriminated against.
Speak English Only Rules
The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. 
  •  A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
  •  An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
  •   Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
  •  Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.
The complete EEOC pamphlet on immigrant rights can be found at
EEOC: Immigrants' Employment Rights Under FederalAnti-Discrimination Laws
State laws may also apply to these hiring situations. Employers should always consult their employment law attorney before establishing any hiring requirements.

See the blog archive for other posts about hiring.



Wednesday, May 31, 2017

Students say, “Ban the box!”


NOTE: This post was originally published on April 6, 2016 and has been updated with new information.            

On May 26, 2017, Maryland Governor Hogan vetoed a bill that would have barred Maryland colleges from inquiring about criminal history on admission applications. Governor Hogan reasoning the bill, in its current state, was too restrictive on schools and jeopardized student safety.

If passed, Maryland would have been the first state to prohibit all colleges and universities from including questions about criminal history on their applications. Admissions offices could still inquire about criminal convictions of accepted applicants but could not withdraw an offer of admission based on the answer.

_________________________________________________________________________________

Many employment applications include the question, “Have you ever been convicted of a crime”.  For the past several years there has been a movement to have the question removed. Every year legislatures at the State, County, and City level take up the issue of whether or not to “Ban the Box”.  Advocates want job applicants to be considered for their qualifications and not rejected based on criminal past. Should the box be banned, February 2013
Currently there are 100 cities and counties that have passed legislation to have the question removed from their respective government employment applications. Twenty-one states have also passed laws-California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Rhode Island (2013), Vermont (2015), Virginia (2015), and Wisconsin (2016). Seven of those states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island) have removed the question from private employment applications as well.
            The Common App college admissions application has over 500 member education institutions and has been in use since the late 1990’s. Since the 2006-2007 admissions cycle the Common App has also included a question as to whether or not the applicant had been convicted of a misdemeanor or felony. The applicant answers yes or no and is required to submit a separate explanation if there is a conviction.
            On March 29, 2016, students from New York University (NYU) staged a sit-in to demand that the school stop receiving the criminal question data from the Common App. Although no immediate changes were made, the NYU administration and the CEO of the Common App met with the students. Much like the advocates for employment purposes, college applicants want to be considered first on their merits and not excluded because of criminal convictions.
            As the Ban the Box movement has steadily gained traction in employment circles, you can expect the issue to continue be brought up on college campuses as well.

See our blog archive for other posts relating to Ban the Box:

Tuesday, May 23, 2017

Hiring in the millennial age



People between ages 18 to 34 are in the millennial generation and were projected to number 75.3 million in 2015, surpassing the projected 74.9 million Boomers (ages 51 to 69). That generational group fills the job pool and is highly sought after. Generational differences mean you need to adjust your job screening process. Below is an excerpt from an article posted on Society for Human Resource Managers, written by Angela Preston, which explains some legal issues you should be aware of when screening Millennials.
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Hiring this growing generation of workers introduces a whole new set of legal challenges to the HR department, and the background screening process is one of those challenges. These five legal lessons should provide a good starting place for making your screening program more compliant and Millennial-friendly.

Social Media Searches
Millennials love their social networks. In fact, social media in many ways defines this generation. Many have grown up with Facebook accounts and can’t remember a world without the Internet or even without Twitter. They chronicle their lives on Instagram. Some say Millennials share too freely and fail to appreciate the impact that social media posts can have on their careers. The oversharing can be tempting for hiring managers who are eager to tap into the wealth of online information…. employers are more likely to stumble upon protected class information that could get them into hot water. Employers need to make sure that any social media screening is done by those who are familiar with the legal risks—particularly anti-discrimination and privacy laws.

Digital Natives and Age Discrimination
Millennials are not direct targets for age discrimination. But here’s the rub—the hiring criteria you are using to attract Millennials might be at the expense of those older 40-somethings who are protected by the Age Discrimination in Employment Act (ADEA) and other similar state laws. Another example is the term “digital native.” It’s the new code for a recent graduate and it’s popping up in ads where companies are looking for a person who was born and raised in the digital age. In other words, Millennials. Legal experts agree that pre-screening for digital natives is a form of thinly veiled age discrimination.

Driving Records
Apparently Millennials don’t like to drive. According to AARP, Millennials drive around 25 percent less than their counterparts did just eight years ago. If a licensed driver with a clean driving record is your target, you might actually be eliminating a significant number of prospective Millennial applicants. That might not be a big deal, but like all parts of a pre-employment background check, you want to make sure that the information you are seeking is relevant to the job at hand. Before you run a motor vehicle report (MVR) on an applicant, you should be asking yourself why? Is a clean driving record a bona fide job requirement?

Credit
Millennials, more than any other generation, tend to rely less on traditional bank loans and credit cards. They are more likely to use cash, and as a group they actually spend less than Generation X or Baby Boomers. They tend to borrow less, which some experts think is related to their large amount of student loan debt. Credit is already a slippery slope, with many states prohibiting use of credit for pre-employment screening.

Job History and Verifications
Millennials job hop. According to Data Facts blog, “a whopping 91% of them don’t expect to stay at a job for longer than 3 years.” They are mobile, more likely to move to large urban areas and are less motivated by pay. Their priorities are different from those who came before them and will move on in order to find more meaningful work.

Also about millennials affect on the work force is our March 2017 post Customer service in the millennial age


Monday, May 8, 2017

What’s in your wallet?



The salary question

The movement to remove the criminal history question from employment applications has been steadily gaining popularity over the last several years. Ban the Box (referring to the checkbox asking if an applicant has ever been convicted of a crime) laws have been enacted by cities, counties, and states. Most affect only government applications but a few apply to the private sector. They are currently 26 states and 150 cities and counties. Maryland is one of those states and the laws applies to state government applications only. While it is not against federal employment laws (past bills in Congress have failed) the EEOC strongly encourages employers not to base hiring decisions based on the applicant’s criminal history.

Another interview question under scrutiny is the salary question-“What is your current and/or most recent salary?” Proponents feel that asking the question will help correct salary disparities by not basing offers on past pay. Arguing that pay should be offered for the position, based on market values, not the person. Employers feel that the new laws are more government intrusion that affects hiring and hurts their overall business.

The attention to this question comes from the equal pay for women campaign, which is gaining popularity on political platforms. Women earn roughly 80 cents per dollar compared to men based on information form the U.S. Census bureau. This pay disparity tends to follow a woman throughout her career when new salary offers are based on current or past history.

Pay equity laws

As with Ban the Box, once the wave starts rolling it does not take long for cities and states to follow suit. The National Conference of State Legislatures lists 43 states with equal pay laws that prohibit discriminating between the sexes. However, Massachusetts was the first to enact a law that specifically prohibits paying a woman less than a man.

In August 2016, the Governor of Massachusetts signed into law the Pay Equity Act, which will take effect July 1, 2018. Under this law it will be illegal for employers: to pay men and women differently for comparable work, screen applicants based on past salaries, contact the applicant’s former company reference salary, and restricting employees from discussing their salaries.

After Massachusetts big cities quickly passed laws. Philadelphia became the first to enact such a law, which was to take effect in January 2017, but is delaying implementation awaiting a federal ruling on a petition to block the law. In April 2017, New York City barred employers from inquiring about salary information.

This issue is gaining attention at the federal level as well. In September of 2016 the Pay Equity for All Act of 2016 was introduced to the United States House of Representatives and is still in committee. The original proposal would make it illegal to screen prospective employees based on their previous wages or salary histories; ask for previous wages or salary; or fire or retaliate against any current or prospective employee because the employee opposed disclosing salary information.

Maryland’s equal pay act took effect October 1, 2016 when The Equal Pay for Equal Work Act of 2016 was enacted. The law applies to employers of any size and extends protections to gender identity as well as sex and bars employers from prohibiting employees from discussing or disclosing wages or those of another employee. The full law can be found at Maryland Equal Pay for Equal Work 
  
See our blog archive for more Ban the box and hiring discrimination posts: