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| Welcome | Welcome to the November 2006 edition of the Credential Check Examiner! This month we look at dealing with employees who have been charged with crimes, domestic and foreign privacy issues, and issues around deleting company data.
As always, please feel free to reply with your comments and suggestions!
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| Dealing with Employees Who Have Been Charged with Crimes
| Employers who ask potential employees about arrest records or those who have a current employee who has been arrested face interesting quandaries in light of recent litigation. Class action lawsuits in California have forced numerous employers to eliminate job application questions about arrests that did not lead to convictions. In addition, California case law has shown that employers may no longer question employees about marijuana convictions that are more than two years old.
Further, an employer in Michigan is currently in litigation for firing an employee who was arrested on murder charges, but was ultimately acquitted. In that case, the employer claims that it dismissed the employee not due to her arrest but because she missed a mandatory medical test -- which she missed because she was in jail awaiting trial -- while the employee alleges that the stated reasons are pretextual for gender discrimination. The employee also claims that the company violated Michigan's crime victims’ rights statute, which protects crime victims from adverse employment actions if they miss work for appearing in court.
“Looking at arrest records versus convictions is a decision not to take lightly, on the one hand innocent until proven guilty and on the other a subject with four arrests for the same charge may show patterns of a person that is not needed in your organization. Before making the decision to utilize arrest records without a conviction be sure to consult state laws and have clear written guidelines,” states Timothy Whiting, Director of Business Development with Credential Check Corporation.
Employers, however, must consider their legal obligations to protect their other employees and clients, as well as their reputations. Based upon the theories of negligent supervision and negligent hiring, employers may be liable for the acts of unfit or dangerous employees when the employer is aware of the employee's condition or when they place the employee into a position of trust. Therefore, an employer may not wish to hire or retain an employee who works in its accounting department but was arrested for writing bad checks.
Ultimately, employers must carefully consider the state laws that apply. Several states, including Wisconsin, California and Hawaii, have laws that prohibit inquiries into employees' arrest records. On the other hand, New York has a state law which specifically allows employers to consider arrest records when making employment decisions. The Equal Employment Opportunity Commission has advised companies that they may consider the substance and conduct which is the basis of an arrest when making employment decisions, but cautioned employers that relying on the mere fact of an arrest, particularly when it did not lead to conviction, may have a disparate impact on racial minorities.
Finally, when determining whether or not your company will take action based on arrests, the importance of consistency in your decisions cannot be over-emphasized. If you determine that you will consider certain arrests when making employment decisions, be sure to apply that policy evenly across all employees.
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| Examining Privacy Across the Pond
|   There are many legal differences between the United States (US) and the European Union (EU), and recent changes relate to personal privacy and the laws that shape and define it. Many Americans believe that the Right to Privacy is granted to them constitutionally. While it is true that the US judiciary has frequently upheld the basic tenet that Americans have a fundamental right to privacy, the rights are neither constitutionally guaranteed nor explicitly outlined. Conversely, the EU, in an attempt to clarify the myriad of different laws with regard to privacy of its member nations, defined its legal intent in the European Union Directive on Data Protection in 1995. Philosophically, the US and EU regard privacy very differently. Americans typically have a fundamental distrust of government, and therefore have enacted laws which preclude and restrict governmental interference in our lives, maintaining our privacy. Conversely, Europeans distrust corporations and have significantly limited their rights with regard to access and use of personal information. One example that may better elucidate the difference is email. Americans expect that their work email could be monitored by their employer. European nations have enacted laws which specifically forbid such corporate intrusion. Recently, these fundamental differences between the US and EU have created significant legal issues. Resulting from the events of September 11, 2001, the US intelligence community has required that all inbound international air travel from Europe provide information on every passenger to them so that it can be screened for potential terrorists. Clearly, EU law precludes providing such information, and as such the EU Supreme Court ruled that an agreement to do so was illegal. Recently the EU and US have resolved this issue, but clearly fundamental legal differences exist with regard to privacy. Should your organization have employees in, or be involved with data gathering or transmission within the EU, diligence should be undertaken to assure compliance with the myriad of legal requirements. top
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| | New York Enacts Workplace Violence Legislation |  New York recently became the latest in a growing trend of states to enact workplace violence prevention legislation this October. Citing research that states homicide is the leading cause of occupational death for female workers and the third leading cause of death for male workers, section 27(b) of the New York Labor Law was amended to require certain public organizations to “develop and implement programs to prevent workplace violence (New York Committee for Occupational Safety and Health, 2006).” This amendment sets forth three main obligations that employers with more than 20 employees must comply with. First, organizations must identify potential risk factors or situations that could be hazardous to their employees with respect to workplace violence. Second, employers must develop and implement written workplace violence programs appropriate to their organization. This includes listing the risk factors identified in the first obligation, as well as addressing how the organization plans to mitigate those factors and prevent workplace violence from occurring. Lastly, the employer must offer employees workplace violence training that specifically addresses occupational assaults and homicides. What can employers do to act in accordance with their state’s respective legislation and protect their employees? If your organization is not an expert in workplace violence prevention, consider hiring a third party to consult with regarding written policies and prevention techniques. Some basic suggestions for programs include improving lighting, limiting access to the workplace, minimizing cash on hand, training employees in conflict resolution, and possibly most importantly, implementing a reporting mechanism for employees to report workplace aggression without fear of retaliation. By implementing an anonymous incident reporting system, employees can report situations that compromise their safety, identify individuals they deem to be a threat, and make suggestions as to what the organization can do to prevent workplace violence, all without the fear of retaliatory action. Source: New York Committee for Occupational Safety and Health (www.nycosh.org). top
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| Quote of the Month: "People seem not to see that their opinion of the world is also a confession of their character."
Ralph Waldo Emerson (1803 - 1882)
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| | Recent Trends in Methamphetamine and Prescription Drug Use |  Methamphetamines (“Meth”) labs, clandestine facilities often set up in garages, storage units, and sometimes vehicles for the purpose of manufacturing meth, are being found in lower numbers, according to the Drug Enforcement Administration. The DEA reported thirty percent fewer meth lab busts over the past year, with significant drops in many Midwestern states that have historically been among the highest in meth usage and in numbers of labs found.  The most common reason for the decline in meth lab busts given by federal, state, and local law enforcement has been recent legislation requiring certain medications containing pseudoephedrine to be placed behind the counter in stores and pharmacies. Pseudoephedrine is a common ingredient in many cold medicines and can be extracted and used in large quantities to create methamphetamine. Some states require a doctor’s prescription to purchase these medications. The United States Congress also added the Combat Methamphetamine Epidemic Act earlier this year to require pseudoephedrine restrictions nationwide. Other attempts to stem the effects of meth abuse include several states, including Illinois, Minnesota, and Tennessee that have created “Meth Offender Registries” to document and make available to the public the names of individuals that have been convicted of manufacturing meth and other meth-related crimes. Many other states, including Missouri and Kansas are considering similar registries. While steps have been taken to reduce the nationwide meth problem, with some success, the dangers of meth have persisted. Even though restrictions on pseudoephedrine have apparently led to fewer local meth labs, much of the methamphetamine in the United States is now being brought into the country. The DEA claims that 80 percent of the nation’s meth is actually manufactured in or funneled through Mexico. Meth’s reach continues to expand as well. Stereotypically a problem in southwestern and Midwestern states, meth has now reached the northeast region of the country, and can now be found in both urban and rural areas, in nearly every state. The overall trend in meth use continues to be unclear, however. Quest Diagnostics reported 31 percent fewer tests that were positive for meth during the first half of 2006 compared to 2005. Some private studies have concluded that meth use has declined and stabilized among most demographics, but the Law Enforcement Development Center maintains that meth use is still rising despite recent legislation. Abuse of prescription drugs is also on the rise, especially among teenagers and even middle school students. The Partnership for a Drug Free America reports that as many as 20 percent of teens abuse prescription drugs by the age of seventeen. The most popular drugs are painkillers such as Vicodin and Oxycontin. Other commonly abused medications include Ritalin, Aderall, and Xanax. Since the drugs are technically legal, it is relatively easy to acquire them from friends or purchase them on the street or via an Internet order. top
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| | To Delete or Not To Delete… |  By pressing the delete key or dropping a file into the recycle bin many employees assume that their data has been permanently deleted, unsalvageable to even the most savvy IT manager. The reality is that neither of these common techniques truly deletes electronic data. For data to be fully erased it must be written over, leaving no sign of the deleted information. But organizations must be careful when and what they delete. There are two primary factors at play for companies looking at deleting or retaining certain pieces of data; legal implications and regulatory mandates. Legally, if a company is aware of a claim against them, then they must retain all pertinent data. Failure to do so may result in a charge of destruction of evidence or obstruction of justice. Federal regulations, such as the document-retention clause of the Sarbanes-Oxley Act, requires that all publicly traded companies maintain all correspondence, communications, electronic documents, faxes and application data and records between themselves and their public auditors for five years. Failure to comply with this mandate could lead to fines of up to $25M and prison sentences of up to 20 years for executives. In a quote from informationweek.com (2006), Bill Adleer, CEO of CyberScrub, cautions organizations that “before deleting something, you have to be able to say all established retention periods have expired, all audit requirements have been satisfied, there are no pending requests for the information, and there’s no foreseeable litigation involving the records.” The safe bet for organizations facing the question of data deletion and retention is to implement an auditable procedure which is governed by policy, and ensure that its employees understand this policy and the consequences of deleting or storing each piece of data they manage. top
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| | Contact Information | If you are interested in obtaining additional information about these articles or the services offered by Credential Check Corporation, please contact one of the following individuals:
Thank you! We'll see you next month!
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