Karl Ulrich, Esq., Shareholder at Sebaly Shillito + Dyer and OSBA Board Certified Labor & Employment Law Specialist, gave a presentation at OhioMeansJobs, 4631 Dixie Highway in Fairfield, Ohio with Matt Messersmith of Signet Pre-Employment Screening. They explored information to consider when hiring new employees.

1. 1

2. Change in the Workplace . . .
 1950 – clerical jobs were 75% of federal workforce.
Now, just 7%.
 69% of employers use some form of background check
for candidates.
 94% of recruiters use social networks for recruiting;
and 74% of hired candidates were found through
social media.

3. Change in the Workplace . . .
 1 billion women will enter the workforce in the next decade
 In US, 10 million more women than men earned college
degrees
 70% of fathers said they would consider being an at home
parent
 1/3 of middle class workers expect to work into their 80s
 44% of millennials believe marriage is obsolete
 33% met online

4. Change . . .
70% of millennials might reject a traditional business to
work independently
50% plan to leave employer after two years
75% of people voluntarily leaving jobs don’t quit their
jobs, they quit their bosses
72% increase in age related claims with the EEOC since
2006

5. Our Goals Today:
 Key Legal Rules Governing Use of Background Checks
- Basic Rules Governing the Hiring Process
- Background Checks – The Nuts and Bolts
- Emerging trends and new laws

6. Some Cautionary Tales
 The Case of the Spurned Scientist – Gaskill v. University of
Kentucky
 With Facebook Friends Like These, Who Needs Enemies –
Ehling v. Monmouth Ocean Hospital Services

7. Key Laws Affecting Pre-Employment
 Discrimination: Title VII; ADEA; ADA; GINA; IRCA
- Race, color, sex (including pregnancy), religion, national
origin, age, disability, genetic information and citizenship
- Prohibited Inquiries: medical history, genetic information,
pregnancy plans, disability, religious affiliation, etc
- Trending – sexual orientation (20 states plus DC); gender
identity (12 states plus DC). Ohio is not one of them.

8. Key Laws Affecting Pre-Employment
 Invasion of Privacy
 Federal Stored Communications Act(“SCA”):
- Protects information the communicator meant to keep private.
- Applies to: (1) electronic communications; (2) transmitted via
electronic communications service; (3) that are in
electronic storage; and (4) that are not public.
- Authorized User Exception

9. Key Laws Affecting Pre-Employment
 Fair Credit Reporting Act – Basic requirements for
obtaining outside background checks:
- Disclose to the applicant that report will be obtained for
employment purposes;
- Obtain applicant’s authorization;
- In the event of adverse action, provide a copy of report
and a description of applicant’s rights to applicant

10. Key Laws Affecting Pre-Employment:
 New EEOC Guidance: Pregnancy Discrimination Act
(July, 2014)
 Reaction to 35% increase in pregnancy discrimination
charges in the last 10 years
 First update of the EEOC’s guidance since 1983
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11. Key Laws Affecting Pre-Employment:
Guidance Points
- Covers current pregnancy, past pregnancy, and a
woman’s potential to become pregnant
- Generally prohibits discrimination in all aspects of
employment – pay, job assignments, promotions, layoffs,
training, and fringe benefits
- Employers cannot defend against a pregnancy
discrimination charge based on fears of danger to the
employee or her fetus, or fears of potential tort liability
- Employers should avoid asking applicants or employees
about issues such as pregnancy
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12. Key Laws Affecting Pre-Employment: Arrest
and Conviction Records
 Highlights of EEOC Enforcement Guidance - 2012:
- Applies to volume hiring
- Avoid blanket “no criminal conviction” policies/practices
- May consider convictions if “job related and consistent
with business necessity.”
- Cannot disqualify on fact of arrest alone.
- Targeted Screens are valid if individualized assessment
of: (1) nature of crime; (2) time elapsed; and (3) nature
of the job.
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13. Key Laws Affecting Pre-Employment:
Hiring and Social Media
Currently, 17 states have enacted laws prohibiting
employers from asking current or prospective
employees for their passwords to social media
accounts
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14. Key Laws Affecting Pre-Employment:
Hiring and Social Media
 17 states with these laws: Arkansas, California,
Colorado, Illinois, Louisiana, Maryland, Michigan,
Nevada, New Hampshire, New Jersey, Oklahoma,
Oregon, Rhode Island, Tennessee, Utah, Washington,
and Wisconsin
 New Mexico only prohibits employers from asking
prospective employees for their passwords
 In Ohio, a bill has been introduced but not passed

15. Using Pre-employment Screening to Minimize the Risk of
Selecting the Wrong Candidate for yourWorkplace

16. What it is…
 Pre-employment screening refers to the process of
investigating the backgrounds of potential employees
and is commonly used to verify the accuracy of an
applicant's claims as well as to discover any possible
criminal history*
 Comprehensive report of a job applicant based on an
organization's Human Resources hiring policy
http://en.wikipedia.org/wiki/Background_check

17. What it is not…
 It is NOT a private investigation into a candidate
 A recommendation to hire/not hire
 Not an intrusive look into a candidate’s private life such
as sexual preference, religion, age, race etc.

18. Why Screen?
 The goal of pre-employment screening is to protect an
organization’s employees, property, assets, & reputation
and to make quality hiring decisions
 Top 3 reasons you want to do pre-employment
screening:
1. Avoid hiring people with extensive criminal history
2. People lie on their resumes
3. Maintain a positive company reputation

19. Criminal Examples Reagan v. Dunaway Timber Company
 “Trucking company's negligent hiring practices lead to
fatal collision” – www.justice.org
 A jury in an Arkansas federal court awarded $7 million
damages to the family of a man killed in a 2008
a wrongful death lawsuit
 “The plaintiffs presented expert testimony that the
company’s hiring policies, practices, and procedures
inadequate. They also offered evidence that Dunaway
could have learned about Quisenberry’s prior license
revocations with a simple and inexpensive background
search.”

20. Resume Falsifications
 How many people lie on their resume?
 46% of people have lied on resumes and job applications
 50% of people have at least a small amount of misleading or inflated
content on their resumes
 Top 5 Resume Lies
1) Exaggerated job titles and responsibilities
2) Falsification of education credentials
3) Covering up criminal records
4) Inflated salaries
5) Falsified dates of employment
http://www.statisticbrain.com/resume-falsification-statistics/

21. Shocking Resume Lies
 ScottThompson;Yahoo’s
CEO
 Marilee Jones; MIT Dean of
Admissions
 Jack Grubman; Salomon
Smith Barney
 Patrick Couwenberg; Los
Angeles Superior Court

22. Want to Avoid Hiring Them?

23. Types of Screenings
 Criminal History
 EmploymentVerification
 EducationVerification
 Driver’s License
 Social Media
 Drug Screen
 Credit History
 …and more!

24. Proper Criminal Screens
 SkipTrace (SSNValidation and Address History)
 County Criminal Research
- Screen Scraping vs. In Person
-Typo’s on names and DOB
- 7Year History
 National Database Search

25. Considerations
 Fair Credit ReportingAct (FCRA) Compliance
 Must get signed authorization from the candidate before a
screening can be done
 This authorization must be a separate document from the
application
 Adverse action based on a
screening requires specialized
documentation; including
pre-adverse action and
adverse action letters

26. Pitfalls to Avoid
 Disregarding your applicants rights
 “Instant Checks”
 Screen Scraping
 Inconsistent Application of Policies
 Discrepancies between staffing standards and your
company standards

27. New Developments

28. Ban The Box Legislation
 13 states have now adopted “ban the box” laws
 They are: California, Colorado, Connecticut, Delaware,
Hawaii, Illinois, Maryland, Massachusetts, Minnesota,
Nebraska, New Mexico, New Jersey, Rhode Island
 3 states prohibit discrimination based upon a criminal
record
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29. Ban The Box, (cont’d)
 Ohio – HB 235 pending before the Commerce, Labor
and Technology Committee
 Canton, Cincinnati, Cleveland, Massillon and
Youngstown have already implemented “ban the box”
ordinances for city employment applicants
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30. Off-Duty Conduct Protection
 4 states (California, Colorado, New York, and North
Dakota) offer statutory protection for employees who
engage in lawful off-duty activities
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31. Off-Duty Use of Legal Products
 Illinois, Minnesota, Missouri, Montana, Nevada,
North Carolina, Tennessee and Wisconsin prohibit
discrimination on the basis of an employee’s off-duty
use of certain lawful products or lawful consumer
products
 Exceptions :
 a bona fide occupational requirement,
 affects employee’s job performance,
 the appearance of a conflict of interest, or
 employer’s primary purpose is to discourage product
use.
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32. Medical Marijuana
The Colorado Supreme Court will soon decide an
interesting medical marijuana case, Coats v. Dish
Network, L.L.C. where a quadriplegic licensed to use
medical marijuana was discharged for failing a drug
test
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33. Medical Marijuana, cont’d
 Arizona, Delaware, and Rhode Island now prohibit
employers from discriminating against employees who
are medical-marijuana users
 Exceptions where the employee was impaired on the job or
the employment of such patients would cause the employer
to lose money or licensing under federal law
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34. Background Check Minefields
 False Identity
 Inaccurate Information
 Disparate Treatment/Impact
 Impermissible Subject Matter

35. Some Best Practices
 Tailor Background Checks to Bona Fide Qualifications
of Position in question
 Be consistent for all competing candidates
 Separate the searcher from the decision-makers
 Avoid “suspect” terms in search criteria

36. Questions and Discussion

37. Karl Ulrich, Esq.
Sebaly Shillito + Dyer
9100 West Chester Towne Centre
Drive
Suite 210
West Chester, Ohio 45069
513-644-8125
kulrich@ssdlaw.com
www.ssdlaw.com
Matt Messersmith
Signet Screening
8080 Beckett Center Drive
Suite 305
West Chester, OH 45069
513-330-6695
mtm@signetscreening.com
www.signetscreening.com