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| Welcome | Welcome to the April 2007 edition of the Credential Check Examiner! This month we look at the benefits of joining professional organizations, reasons to consider using a third-party to conduct investigations, and how MySpace is being used in screening job applicants.
As always, please feel free to reply with your comments and suggestions!
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| Utilizing Third Party Investigators in Workplace Investigations
|  Historically, conventional workplace misconduct investigations have been handled by an organization’s Human Resource Department, Internal Security, or General Counsel. However, increasingly, organizations are recognizing that in many cases, the most effective investigations are those that are conducted by impartial third parties. Why? Over the years there have been a variety of challenges to organizations, both by employees and through litigation alike, premised upon their ability, and in some cases, willingness to be completely objective in their business and investigative processes. When considering whether or not to utilize a third party it is important to take into consideration four elements.
First, impartiality and objectivity: ensuring that the outside firm has no stake in the outcome and can direct the investigation with no preconceived notions. Second, perception of neutrality; that is, often times employees believe that the investigator is biased and pro-management. Frequently, this perception occurs when the investigator is a member of management, or the organization’s general counsel. While the outside investigator is retained by the organization, the effective investigator will be able to portray a necessary element of neutrality and fairness that management and its counsel can not. Third, professionalism and experience: outside firms that specialize in workplace investigations will likely have significantly more expertise than either an in-house staff member or an outside attorney who does not specialize in employment law. In addition, it is critical to ensure that the outside firm is knowledgeable of the workplace and can use his knowledge of the workplace to draw out the facts of the case. Lastly, statement of seriousness: when organizations bring in an outside firm to conduct an investigation, it demonstrates the serious nature of the issue(s) at hand and communicates to those individuals involved that the organization is taking the matter very seriously.
In addition to the aforementioned, the Equal Employment Opportunity Commission (EEOC) has issued its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, which spells out specific guidelines related to the necessary skill sets of the individual who conduct the investigation, and the necessary objectivity that the investigator has regarding the collection and consideration of the relevant facts. The next time your organization has workplace misconduct issues arise, weigh the pros and cons of conducting the investigation internally versus externally, and consider utilizing an independent third party, which specializes in conducting workplace investigations.
Click here for additional information related to the EEOC’s Enforcement Guidance.
Tip: When considering utilizing a third party, make sure to research the firm and be sure to request references. Credible firms will be able to provide references!
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| Professional Organizations: Maximizing the Benefits
|  Regardless of the industry you are in or the career path you have chosen, there are associations and organizations that can help you professionally while benefiting your company.
Before deciding which organizations or associations to join, determine your goals for joining (what do you want to get out of your participation) and see if these goals align with your company goals. Are you looking to simply network and gain new business, learn from others and be educated, provide education and training – or do you really want to make a difference in your profession?
In addition to researching online, most organizations have monthly meetings which you can attend as a guest or for a nominal fee to see if it is a good fit with your goals. You will also have the opportunity to meet current members and ask what they get out of their membership. This one-on-one networking is a great benefit of joining an organization as people are more open to hear about what you do and what your company does. You will uncover opportunities for your own company as well as learn about additional resources, current trends, and other marketplace trends in your industry.
One common mistake people make is joining a professional organization but not participating as an active member. Your membership fees will be wasted if you don’t attend regular meetings and seek out ways to become more involved. Your involvement could include joining a planning committee, becoming a board member, or offering your time for speaking engagements. Taking on these additional responsibilities helps your personal credibility and provides awareness of your own company’s products or services.
After you’ve decided which organizations to join, setting an action plan can be beneficial. Schedule the events you plan to attend so they become a priority and not a hassle when your schedule gets busy. Also, if budget permits, see what meetings or events have sponsorship or speaking opportunities. Even if you’ve been a member of an organization for many years, you should re-evaluate the situation on an annual basis. If you’re unable to participate, save your membership fees and rejoin an organization at a later date. Check out your options for professional development and prosper along with your peers!
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| | Using MySpace to Investigate Job Applicants: Helpful Tool or Legal Nightmare? |  Social networking sites, such as MySpace and Facebook, have quickly become the hotspots of the internet, and employers are taking notice. There appears to be an increasing trend in employers using these sites, as well as other various internet "hangouts,” to gather additional, and possibly more private, information about applicants. A survey by business social network Viadeo, released in March of 2007, found that one in five employers reported that they had turned to the Internet to find information on job applicants, with 59 percent of those stating that what they had found influenced their hiring decisions. Also, 25 percent of human resources decision makers reported that they had rejected applicants based on personal information found online. The recent increase in the use of social networking sites by employers has begun to raise concerns over the legality of this practice. George Lenard, a lawyer specializing in labor and employment law, examined three primary legal concerns for organizations choosing to utilize social networking sites as tools in making employment decisions. He highlights three legal areas in which employers should be cognizant of, including: discrimination laws, invasion of privacy restrictions, and terms of service violations. The use of the Internet by an employer to check on only specific types of applicants, for example, only checking applicants of a certain race, can be evidence of unlawful discrimination. Lenard also warns that organizations may be at fault of discrimination if the information collected is viewed with a discriminatory bias, thus affecting the evaluation of the candidate. In order for an employer to invade the privacy of an applicant, the applicant must show that he / she had a "reasonable expectation of privacy” in regard to the information posted online. This requirement is often not met, as most individuals have an understanding that access to their profiles may be limited, but they do not reasonably expect information to be kept private. But employers can be faulted for privacy invasions if they hack through privacy measures set by the individual in an effort to restrict access to only certain people. In regard to terms of service, different sites have different expectations, and employers should have a basic understanding of what these are for the various sites they may use. For example, Facebook prohibits individuals from misrepresenting themselves, impersonating others, or using another’s account to look up profiles. "An additional concern in reviewing online social sites for a background on potential employees is the material being reviewed may not have been posted by the applicant,” states Timothy Whiting, Director of Business Development with Credential Check Corporation. With the boom in information available on the Internet, it is understandable that employers would be drawn to the idea of checking out individuals who may one day be representing their company; but before sitting down at the computer to look up the personal information of applicants, employers should examine the salient issues which may arise from this new method of investigation and take the steps necessary to ensure that their organization is acting in accordance with the law. George Lenard’s full article can be found at CollegeRecruiter.com. top
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| | Todd's Tips: The New Gypsy Workforce | When I graduated from college in the early 1990’s, I was told that I should expect to have 6 careers over the course of my working lifetime. For today’s college graduates, studies show that theses employees we are hiring expect to move careers, every 3-5 years, if not more. Assuming that someone works for 40 years, that is a minimum of 9 careers by age 65. To reiterate, not 9 jobs…9 careers! The mantra of the Baby Boomers - work hard and retire from one company - has been completely lost upon the current generation of employees. What was once thought impossible by our parents and grand parent’s, has become the norm for the Generation X and Generation Y workforce. This change in the mindset of today’s employee places an even greater emphasis on conducting thorough and complete professional reference checks. As employers and hiring managers, we need to know who we are getting and companies such as Credential Check have the tools and expertise to assist in this phase of the hiring process. Here’s hoping all of your hires are “A” players!
Todd Palmer, President, Diversified Industrial Staffing top
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| Quote of the Month: "Praise, like gold and diamonds, owes its value only to its scarcity. "
-Samuel Johnson
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| | One More Act to Follow | Compliance is defined as the act of conforming, acquiescing, or yielding. It has become one of the most utilized and scrutinized terms for public companies, financial institutions, and medical organizations in recent years. Federal mandates (laws) that specifically direct organizations with regard to compliance continue to increase, and have become conveniently recognized as SOX, GLBA, and HIPAA. In December of 2005, the Senate passed the Deficit Reduction Act, or DEFRA, in an attempt to save approximately $40 million over the next five years from mandatory spending programs through slowing growth in spending for Medicare/Medicaid, as well as other measures.
DEFRA was signed by President Bush in February 2006, with an effective date of January 1, 2007, and pertains to medical facilities that receive more than $5 million in Medicaid reimbursement. The purpose of DEFRA is to eliminate fraud, waste, and abuse through:
- Encouraging the enactment of the state false claims act
- Employee education about false claims recovery
- Enhancing third party recovery
DEFRA requires these organizations to communicate to their employees certain fraud and abuse laws and whistleblower provisions. Specifically, Section 6032 of DEFRA requires written and communicated policies for all employees of the entity, including management and all employees of any contractors for these entities, to be in place by January 1, 2007 and available at least within the Employee Handbook. These provisions include information about false claims, false statements, and whistleblower protection under federal and state and abuse laws.
Having a compliance policy is prudent, and as of January 1, 2007, mandatory. The numbers of whistle blower lawsuits are expected to increase with the enactment of DEFRA. 44% of attorneys said they spent more time on regulatory matters in the past three years than they did before. The industry hardest hit by regulation is health care, where three-quarters of corporate lawyers said they’ve dedicated more time to regulation. Companies need to be prepared to deal with these new regulatory inquiries.
One proactive solution to this complex business problem is the implementation of anonymous incident reporting systems. Anonymous incident reporting systems provide a mechanism for the detection, prevention and resolution of fraud, waste and abuse by allowing individuals to anonymously report fraud, waste and abuse without fear of retaliation. Maintaining anonymity allows an organization to strengthen the bond of trust between the employer and employee. It is the cheapest form of insurance that money can buy.
Source (in part) CFO.com
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| | Supreme Court Watch -- Pending Cases That May Affect Employers | As this U.S. Supreme Court's 2006-07 term nears its end, several important employment cases remain to be decided. We review four cases, including one just decided, that may impact your workplace.
The Court will hear oral arguments on April 18 in BCI Coca-Cola Bottling Co. v. EEOC. This case will answer the critical question of when a company is liable for the discriminatory motive of a supervisor, when the person who actually made the adverse employment decision had no discriminatory intent. In this case, a supervisor with a reputation for treating black employees differently told a decision-maker that a black employee had refused to work and had called in sick. Based on the information from the supervisor, and without conducting a sufficient independent investigation, the decision-maker terminated the employment of the black employee. The EEOC sued the employer on behalf of the former employee, asserting that the company was responsible for discrimination even though the decision-maker held no discriminatory animus. Liability under this "cat's paw" or "rubber stamp" scenario has been disputed by the circuit courts, and can be highly important for a company that has centralized its decision-making with Human Resources or other management personnel. Employers with centralized decision-making have to be very careful with relying upon input from supervisors and will have to spend more time and energy in conducting good faith and adequate investigations.
In Ledbetter, Lilly v. Goodyear Tire & Rubber Co., the Court will decide whether an employee may extend or disregard the time period within which to challenge a discriminatory pay decision. Under Title VII, an employee has either 180 or 300 days (depending on the state) from the adverse employment action to file her complaint, or else she loses her right to challenge the action. For a disparate pay claim, that adverse employment action is typically related to the issuance of a paycheck or the decision by a manager related to a raise. In this case, however, the employee was unaware that she was being paid substantially less than her male co-workers throughout her 19 year career until just before she retired. The Court will determine whether the employee is entitled to claim back pay for the term of her career, or only for the time period within 180 days prior to her claim. The Court heard oral arguments in this case last November.
The issue of a labor union's ability to use non-members' agency fees for political activities without their consent will be decided in Davenport & Washington v. Washington Education Assn. In this case, employees who are not members of the Washington teachers' union have agency fees for the union deducted from their paychecks. The Court will decide whether the union may use those agency fees for political activity, or whether it must obtain the non-members' consent before using the money. The Court heard oral arguments in January.
Finally, the Court just announced its decision narrowing a whistleblower's right to recover under the False Claims Act in Rockwell International v. U.S., ex rel Stone. The False Claims Act allows individuals to file fraud claims on behalf of the government against companies that do business with the federal government. If the individual prevails in the lawsuit, he receives a portion of what the company is ordered to pay the government. The Court's ruling established a more rigorous requirement for a whistleblower to share in the proceeds by showing that the whistleblower was the "original source" and had direct and independent knowledge of the information on which the fraud allegations are based. The increased scrutiny of these cases may level future whistleblower claims.
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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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