California Amends Law Preventing Use of Juvenile Criminal History for Employment

Assembly Bill 1843 is an amendment to California Labor Code 432.7 that includes additional restrictions on employment-based inquiries into an applicant or employee’s juvenile criminal history. The new bill, effective January 1^st of next year, restricts employers from:

• Asking an applicant to disclose, either in writing or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the individual was subject to the process and jurisdiction of juvenile courts/ law.
• Seeking from any source whatsoever, or using, as a factor in determining any condition of employment (e.g., hiring, promotion, termination, decisions related to a training program, etc.), any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the individual was subject to the process and jurisdiction of juvenile courts/law.

It is important to note that previous sections of California Labor Code 432.7 allowed employers to look into certain convictions and use them in adverse action decisions if federal law required. The amendment will prevent employers from making decisions based on those preexisting portions of the labor code. This amendment may cause a conflict with preceding federal laws and/or other legal requirements that require specific screening standards for employment. We will keep an eye on this bill as it goes into effect and examine how this conflict will be handled.

You can read Assembly Bill 1843 in full here.

LA Bans the Box

On November 30th, 2016, the Los Angeles City Council passed the Fair Chance Initiative prohibiting most employers from inquiring about applicants’ criminal histories until a position at the company has been offered. The notion was approved by a 12-1 vote, making Los Angeles another of many to instill this new law.

The city’s ordinance will apply to all employers who have at least 10 or more employees on staff, with the exception of careers in fields like law enforcement and child care. The decision was made to join a growing movement in helping those with criminal records find suitable employment despite their pasts. There are now 24 states with over 150 cities who have adopted this bill.

The Fair Chance Initiative was started by the Los Angeles based organizations Homeboy Industries and All of Us or None. Both groups provide support to previously incarcerated persons, fighting for their rights to rejoin the workforce in the United States; a very applicable stance to the ‘ban the box’ law. According to the National Employment Law Project, a 2011 study discovered that reentering 100 formerly incarcerated people back in the working world would increase their lifetime earnings by $55 million. This would also save $2 million annually be keeping these employees out of the criminal justice system.

However, as mentioned in a previous blog of ours, these policies bring forth the risk of increasing discrimination, as employers who are not legally allowed to research an applicant’s criminal history may consider denying him or her because of ethnicity a loophole. This fallback on stereotyping can have an adverse affect on those seeking jobs following incarceration, but the question of morality remains. Implementing the ‘ban the box’ law has led to a large increase in the hiring of those with criminal records despite these claims.

Now that Los Angeles has joined many cities around the country in this movement, the City’s Office of Wage Standards is expected to enforce this ordinance. If any violation of the new bill is reported, the applicant filing the report may receive up to $500, so long as the allegations are upheld.

For more information on the rising ‘ban the box’ movement, visit the National Employment Law Project’s guide here.

Marijuana Legalization and its Effect on Your Drug Screening Policy

Whether you were a Trump supporter, Clinton supporter, or none of the above, the election is behind us. The results of the November ballots resulted not only in the election of Donald Trump as our president, but also the legalization of recreational marijuana use in four states in what the media is calling a big win for marijuana reform.

California, the United States’ most populous state, along with Massachusetts, Nevada, and Maine, approved the use of recreational marijuana on Tuesday, November 8^th. Overnight, the number of states permitting recreational use grew from four (Alaska, Colorado, Oregon, and Washington) to eight, doubling the amount of states in which use of marijuana is legal. So not only has the most populous state legalized marijuana, but the movement for reform has made its way out to the east coast.

Recreational use was not the only marijuana-related question on the ballot either. Medical marijuana usage was approved by three new states (Florida, North Dakota, and Arkansas), pushing the number up to a whopping 28 states. Nine different states had marijuana on the ballot, so we will talk about the impact these bills will have on your drug screening policy.

Whenever a new bill is passed relating to marijuana, we get questions about how that will impact your corporate drug screening policy. We’ve written about it in the past, and the answer remains the same as before. Until marijuana is removed from the list of Schedule I drugs under the federal Controlled Substances Act, employers should still be able to test for the substance as they see fit. That is because the states that have passed these laws permit taking adverse action if the employee is under the influence of marijuana at work.

Now some may ask, “Don’t these new laws prohibit adverse action (firing of an employee) for the off-duty use of marijuana?” The answer is yes, but determining whether it was used during work hours or after hours can be tricky. The problem lies in the testing methods used for marijuana. Unlike alcohol, there is no known threshold for impairment. Testing for marijuana, depending on the method, can detect use from as far back as 30 days. For hair tests, the window of detection is larger. Therefore, a positive result does not necessarily mean the applicant/employee is impaired. However, there is no way to be sure.

In conclusion, due to the limits of drug screening for marijuana and the drug’s inclusion in the list of Schedule I drugs under the federal Controlled Substances Act, employers can still take adverse action against employees and applicants for a positive drug test. So for now, employers can still maintain a zero-tolerance policy for the drug should they so choose. Whether the spread of this marijuana-related reform or the development of new drug screening tools will change this remains to be seen. We recommend that companies at the very least review their policies and, should they continue to enforce a zero-tolerance policy, communicate to their employees that marijuana use could still result in the termination of employment.

Separating Good Employees from Great Employees When Interviewing

The process of interviewing can become a monotonous task for employers in need of hiring, sifting through countless applications. To avoid falling into a generic routine comprised of run-of-the-mill interview questions and potentially hiring a damaging employee, take the following evaluations into consideration when interviewing in order to truly gauge an applicant’s worth.

What is their vision?

Asking an interviewee where they see themselves in 5 or 10 years leaves the door open for common, overused answers. Elaborate on this topic by asking what their professional vision within the company is. How can he or she contribute something that hasn’t been done before? An applicant who can quickly and thoroughly answer questions regarding their future, and what they can bring to the table is typically a visionary who can recognize his or her own value.

Why did they leave their previous job, and did they attempt to find a solution?

Whether or not candidates you are interviewing left their previous place of work due to inadequate pay, or problems with coworkers, asking if they’ve tried to rectify the issue at hand will allow them to show their problem solving abilities in situations that call for such skills. If the problem they faced led to them quitting the very next day, that may show their inability to cope with difficulties. However, if they are simply exploring their options within the working world, you do not want your business to be seen as a negotiation for higher pay, leveraging against their current position. Be sure applicant’s want to work for your company specifically, and are not merely weighing their odds in order to find any job they can.

What is something new they learned within the past month?

Questions pertaining to an interviewee’s self-development forces them to consider how aspects of their personal lives relate to their professional careers. Rather than listing bullets on their resumes one by one that relate only to their work history, candidates should be able to show an eagerness for growth outside of the office. Ask them to teach you something. As vague of a question as that is, it compels the interviewee to dive into their personal interests, showing their enthusiasm for learning. An applicant that takes ownership of his or her personal growth is typically one that can be trusted to successfully grow within your company.

Going above and beyond in the interviewing process can yield extremely beneficial results for employers looking to find their next great employee. Look to stray away from standard interview questions that almost all applicants can answer with ease. Candidates that can translate well to your business’s needs will manifest themselves through these unique questions by showcasing their skills and ability to think quickly on their feet.

EEOC Issues New Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC), an agency of the federal government created by the Civil Rights Act of 1964 to prevent discrimination, created an enforcement plan in December 2012 for years 2013 through 2016. This month, the EEOC has put together a strategic enforcement plan (SEP) for years 2017 through 2021. One of the ways the EEOC combats discrimination is targeting unfair, discriminatory recruitment and hiring policies. Employers with fifteen or more employees are subject to the guidelines of the EEOC. The guidelines for proper recruiting measures can be found here.

For 2017-2021, the EEOC will be focusing on class-based recruitment practices that discriminate against racial, ethnic, religious groups, older works, women, and those with disabilities. Due to an expanding temporary workforce, the EEOC has made it its priority to focus on temporary workers, staffing agencies, and independent contractor relationships.

EEOC Initiatives:

1. Eliminating Barriers in Recruitment and Hiring.
2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.
3. Addressing Selected Emerging and Developing Issues.
4. Ensuring Equal Pay Protections for All Workers.
5. Preserving Access to the Legal System.
6. Preventing Systemic Harassment.

As a 3^rd-party provider of background screening, we will be focusing on the first initiative. The EEOC means to target screening tools that disproportionately impact workers based on their protected status. They include pre-employment tests, background checks impacting African American and Latinos, date-of-birth inquiries that impact older workers, and medical questionnaires that impact individuals with disabilities.

The EEOC’s recommendations for proper use of background information:

• Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
• Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
• Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.

Make sure your company is not using date of birth for anything other than a criminal record search. Any other use of the date of birth could be construed as discrimination against older workers. Be certain any exclusions based on criminal history are relevant to the tasks required of the job and do not negatively impact a certain race exclusively. Lastly, give applicants with disabilities a chance to prove his/her capability to do the job at hand.

We recommend companies review their recruitment and hiring practices to ensure that they are in line with EEOC requirements.  To see the SEP in full, click here.

Screening Your Seasonal Workforce

October through January are big months for the retail industry in terms of sales volume. Unfortunately, the holiday season also accounts for about half of all annual shrinkage. Shrinkage is the loss of inventory that can be attributed to factors such as employee theft, shoplifting, administrative errors, vendor fraud, etc. The two biggest causes of retail shrinkage in the U.S. are employee theft at 43% and shoplifting at 32%.

Forty-three percent is an alarming number for employee theft. It is no coincidence that these four months require the hiring of seasonal workers to help with increased foot traffic and sales volume. With these appalling numbers in mind, how can retail companies combat this seasonal employee theft epidemic?

For starters, retail companies should be aware that cutting corners with their screening process will not save their business money in the long run. Shrinkage results in a loss of $42 billion for U.S. retailers annually. With almost half of the $42 billion in shrinkage occurring during the holidays, it is a no-brainer to require the same background screening standards to seasonal workers as full-time employee. However Holding seasonal workers to the same standards as full-time employees means nothing if you are conducting a bare-bones background check on full-time employees. Reducing shrinkage requires a background check that is comprehensive in scope.

Secondly, it is important to remember that if an individual has stolen from their employer, they are more likely to repeat that offense. Bolster your employment verification process by requiring a reference from the individual’s last employer. While the applicant may not have been convicted of theft, their employment may have been terminated for deceitful practices such as: entering refunds or discounts, cancelling transactions, or modifying prices at the cash register. A lot of theft is the result of dishonest practices at the cash register.

If your company is in the retail industry, take a look at your background screening procedure. Are you doing the bare minimum? If your background check consists only of a national database search, you are more likely to hire someone who has committed theft in the past. If you have any questions about fortifying your background screening process, please feel free to use the comments section or contact S2Verify at 1 855 671 1933. 

FTC Issues Guidance to Landlords for the Use of Consumer Reports

The FTC has issued a publication that helps landlords understand the proper steps to take when using background checks.  Much like its guidance, Background Checks: What Employers Need to Know, this publication details the obligations of users of consumer reports under the Fair Credit Reporting Act (FCRA). The guidance details what a consumer report is, what is required before the use of a consumer report, and the proper adverse action steps.

The FTC defines a Consumer Report as any information about a person’s credit characteristics, rental history, or criminal history. These reports include:

•          A credit report from a credit bureau, such as Trans Union, Experian, and Equifax or an affiliate company;
•          A report from a tenant screening service that describes the applicant’s rental history based on reports from previous landlords or housing court records;
•          A report from a tenant screening service that describes the applicant’s rental history, and also includes a credit report the service got from a credit bureau;
•          A report from a reference checking service that contacts previous landlords or other parties listed on the rental application on behalf of the rental property owner; and
•          A report from a background check company about an applicant or tenant’s criminal history.

Before Getting a Consumer Report

The guidance puts an emphasis on permissible purpose. Permissible purpose means that landlords have a legitimate business need that requires a background check. In the case of landlords, they must only use consumer report information for the purpose of screening applicants and/or tenants who apply for rental housing or renew a lease. While written consent is not required from applicants, it is a great way for landlords to prove they have permissible purpose for the use of a consumer report.

The FTC notes that landlords should avoid a blanket policy of refusing to rent to anyone with a criminal history, as it may violate the Fair Housing Act.

Adverse Action

It is important to note that adverse action does not only consist of the denial of an application. Adverse action also includes:

•          The necessity for a cosigner on a lease if an applicant does not meet the income requirements;
•         The requirement of a deposit that would not be required for another applicant;
•         The requirement of a larger deposit than might be require for another applicant; and
•         Raising the rent to a higher amount than for another applicant.

Whether an employer or a landlord, one thing remains constant. You must provide the applicant notice that you are taking adverse action (any of the measures listed above) and the reasons for the action. While the notice can be given orally, in writing, or electronically, we recommend that the notice is given in writing for auditing purposes. Please note that an adverse action notice is required even if the consumer report wasn’t the primary reason for the decision. If the consumer report played any part in the decision making process, the applicant/tenant must be notified.

The Adverse Action Notice must include:

• the name, address, and phone number of the consumer reporting company that supplied the report;
• a statement that the company that supplied the report did not make the decision to take the unfavorable action and can't give specific reasons for it; and
• a notice of the person's right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get a free report from the company if the person asks for it within 60 days.

To view the guidance in full, click here.

California Assembly Bill 1289: Mandatory Background Checks for TNC Drivers

Assembly Bill 1289, passed on September 28^th, has made background checks mandatory for drivers working for a Transportation Network Company (TNC) in California. This bill applies to both employees and independent contractors.

What is a TNC?

TNCs are organizations that connect paying passengers with drivers who provide transportation using their own non-commercial vehicles. All parties connect to the service via website and mobile apps. These are companies like Uber and Lyft.

Background check requirements for TNCs:

•         A multi-state and multi-jurisdiction criminal records locator or other similar commercial nationwide database with validation; and
•         A search of the United States Department of Justice (USDOJ) National Sex Offender Public website

A TNC shall not contract with, employ, or retain a driver if he/she meets the following criteria:

•         Is currently registered on the USDOJ National Sex Offender public website
•         Has been convicted of a violent felony
•         Has been in violation of Section 11413, 11418, 11418.5 or 11419 of the Penal Code

A TNC shall not contract with, employ, or retain a driver if he/she has been convicted of any of the following offenses in the last seven years:

•         Misdemeanor assault or battery
•         Domestic violence offence
•         Driving under the influence of alcohol or drugs
•         A felony violation of Section 18540 of the Elections Code

Assembly Bill 1289 goes into effect on January 1, 2017. We recommend that each Transportation Network Company review their background screening procedure to ensure compliance with the new bill as well as the Fair Credit Reporting Act and other local laws. Each violation of the new law will result in fines between one and five thousand dollars per incident.

To view Assembly Bill 1289 in full, click here. 

Vermont the Latest State to Ban the Box

Governor Peter Shumlin has signed a bill to remove questions regarding criminal history from employment applications. The bill, which Governor Shumlin says, “will break down barriers and give Vermonters who have paid their debt to society a fair chance to find a good job”, makes Vermont the 23^rd state to enact a state-wide ban-the-box policy. While each bill that has been passed is a part of the ban-the-box movement that continues to sweep the nation in 2016, each bill differs in who it applies to and at what point it is legal to use a background check.

So what does this mean for employers in Vermont?

It means that job applications for both state and private employment cannot include the infamous question, “Have you been convicted of a crime?” But that is not all. The bill comes with the stipulation that inquiry into an applicant’s criminal history cannot take place until after the applicant has been deemed otherwise qualified for the position. The executive order does not apply to law enforcement, correctional facilities, or “other sensitive positions”.

The bill takes effect on July 1, 2017. The new law makes Vermont the ninth state to extend the fair-chance policy to both public and private employers. The motivation behind the policy, according to Governor Shumlin, is to decrease recidivism and allow those with a criminal history to properly reintegrate into society. Failure to comply with provisions laid out in the bill may result in a civil penalty of up to $100 for each violation.

To view the bill in full, click here.

--------------------------------------------------------------------------------------------------------------------------

S2Verify is an NAPBS-accredited process innovator in the application of integrated hiring solutions and employment screening technologies. S2Verify’s services cater to the needs of organizations that rely on employee and volunteer information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand, and use by authorized personnel. Headquartered in Atlanta with Operational Support Centers in Miami and Chicago, the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of applicant tracking, drug screening, and criminal background checks that address business and consumer needs either poorly met or not met at all by leading, nationally-branded providers of mass-market background screening solutions. The focus on addressing shortcomings in the background screening industry attributed to S2Verify’s inclusion in the Inc. 500’s list of fastest growing companies in the United States.

The Truth About Fingerprint Checks

Fingerprint checks are required by the state for many industries, education for instance, and are thought of as one of the most reliable ways to screen job candidates. And with mandatory fingerprint checks in place in many states, people have no choice but to buy into this misconception. And when I say, “buy into this misconception," rest assured that you are paying for it. The state of Washington, for example, charges $45.75 for fingerprint background checks. If you think that is bad, in the state of New York fingerprint background checks can cost up to $102. So with costs that high, surely fingerprint checks are the most comprehensive, accurate way to screen applicants. Unfortunately, this is not the case.

In truth, it is an unreliable, faulty way to vet new employees. Issues include:

·         An incomplete FBI database that is missing as many as 50% of its criminal records

·         Irregular updates to fingerprint-based records that cause the information to be far from current

·         An inclusion of arrest records that, according to the FCRA, are not to serve as a basis for employment decisions without a conviction based on that arrest

·         Unlike a background report from a consumer reporting agency based on personal identifiers (Name, DOB, SSN, etc.), FBI reports do not allow the individual to challenge the results

An example of an FBI rap sheet

So with this many problems, how is it possible that states and municipalities are still passing legislation requiring the use of this defective method of employment screening? Well, that all boils down to legislators who do not understand the inadequacies of this method of screening. Until legislators are made aware of these shortcomings, many industries are forced to continue use of this inaccurate screening procedure.

If your company is not a part of an industry that falls under the umbrella of state-mandated fingerprint checks, we recommend a criminal background check that uses personal identifiers to match convictions, and only convictions, to the right individual. This method of screening is FCRA-compliant, more accurate, and more reasonably priced.

--------------------------------------------------------------------------------------------------------------------------

S2Verify is an NAPBS-accredited process innovator in the application of integrated hiring solutions and employment screening technologies. S2Verify’s services cater to the needs of organizations that rely on employee and volunteer information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand, and use by authorized personnel. Headquartered in Atlanta with Operational Support Centers in Miami and Chicago, the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of applicant tracking, drug screening, and criminal background checks that address business and consumer needs either poorly met or not met at all by leading, nationally-branded providers of mass-market background screening solutions. The focus on addressing shortcomings in the background screening industry attributed to S2Verify’s inclusion in the Inc. 500’s list of fastest growing companies in the United States.

FTC Issues New Guidance on Background Screening for Consumer Reporting Agencies

A new guidance titled “What Employment Background Screening Companies Need to Know About the Fair Credit Reporting Act (FCRA)” has been released by the Federal Trade Commission (FTC) to better define the responsibility background screening firms have to clients and consumers in general. Background reports are described by the FTC as consumer reports under the FCRA as they “serve as a factor in determining a person’s eligibility for employment, credit, insurance, housing, or other purposes which include information on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.”

The responsibilities of consumer reporting agencies under federal law are stated as such:

·         Following reasonable procedures to assure accuracy

·         Getting certifications from clients

·         Providing clients with information about the FCRA

·         Honoring the rights of applicants and employees

Following reasonable procedures to assure accuracy

The release of this guidance tells you one thing. Many consumer reporting agencies are not taking reasonable measures to ensure that the report is accurate. Ensuring accuracy means a couple of different things. One, the background screening company needs to make sure that the information obtained relates to the individual in question. And two, the information obtained has not been expunged or otherwise sealed.

Essentially, our duty to our clients and consumers alike is to provide background information that can be directly linked to the applicant/employee through personal identifiers, and the report consists of strictly convictions as opposed to arrest records. Individuals should not be punished for an arrest that did not result in a conviction. That is why our adjudication team verifies any information found in a national criminal database search at the county level.

Getting certifications from your clients

Basically, CRAs need to make sure that their clients have a permissible purpose to obtain the background report. In this case, permissible purpose means that the background check is used solely for the determination of employment. Therefore, background screening companies must get confirmation from their clients that:

1)      The employer notified the applicant and got the applicant’s written permission to get a background report

2)      The employer will comply with the FCRA requirements; and

3)      The employer won’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations

It is for this reason that clients are firmly vetted before the use of our services. Once it is confirmed that the client is a business using our services solely for employment purposes, they must sign an agreement that states that they will comply with FCRA requirements, including attaining consent prior to conducting a background check. Consent forms are stored for auditing purposes.

Providing your clients with information about the FCRA

Clients must receive information about their responsibilities under the FCRA. The document “Notice to Users of Consumer Reports” must be provided to each client to ensure they know what is required of them under the statute. One such responsibility of employers is informing every applicant or current employee of their consumer rights in terms of background screening. This information, known as “A Summary of Your Rights Under the Fair Credit Reporting Act”, is to be provided to each applicant/employee undergoing a background check.

Honoring the rights of applicants and employees

Because the use of consumer reports can bar individuals from employment, credit, insurance, or housing, it is important for consumers to know their rights. These rights are protected under the FCRA due to the major impact inaccuracies can have on an individual’s ability to obtain employment. The following is a list of consumer rights under the FCRA:

·         You must be told if information in your file has been used against you

·         You have the right to know what is in your file

·         You have the right to dispute incomplete or inaccurate information

·         Consumer reporting agencies must correct or delete inaccurate, incomplete, or unverifiable information

·         Consumer reporting agencies may not report outdated negative information

·         Access to your file is limited

·         You must give your consent for reports to be provided to employers

·         You may seek damages from violators

To read the FTC guidance in full, click here.

--------------------------------------------------------------------------------------------------------------------------

NAPBS Executive Director Urges Public Agencies Not to Remove Birth Date from Public Records

Melissa Sorenson, the executive director of the National Association for Professional Background Screeners (NAPBS), recently wrote an article detailing the importance of background screening firms having access to personal identifiers in public records. In a measure to prevent identity theft, many federal, state, and local public agencies have been considering the removal of essential personal identifiers, such as the date of birth, from court records. The Iowa State Court Administration is one of the agencies that has recently proposed this resolution. The unintended consequences of redacting such information, however, is a limitation of background screeners’ ability to properly obtain critical information essential to timely hiring and leasing decisions.

With many individuals sharing the same name, the person’s full date of birth ensures that the public record is correctly matched to the right individual. The accuracy of a background screening firm’s results relies heavily on the DOB. Without it, our reports would not be the accurate, comprehensive data that clients depend on to make personnel decisions. 

Background checks are vital to the safety of residents, employees, and volunteers. Not only that, limiting access to this data would essentially result in employers stuck between a rock and a hard place. Option one would be receiving lengthy reports based on the limited identifiers, containing criminal records that may or may not apply to the applicant. That’s not a great option. Option two would be to exclude information obtained based on limited identifiers, which could result in the hiring of an individual that does have a criminal record. Missing a conviction for a violent offense is a risk that many employers cannot take. 

Background screening providers, especially those accredited by the NAPBS, understand the importance of protecting this information and are bound by strict regulations determined by the Fair Credit Reporting Act (FCRA). Our employees are trained in proper use of and protection of potentially identifying information. Melissa Sorenson urges that agencies such as the Iowa State Court Administration seriously weigh the impact this would have for people trying to find work or housing. We will keep an eye on this issue as it continues to unfold.

To read Melissa Sorenson’s article in full, click here.

How the Legalization of Marijuana Affects Your Drug Screening Policy

The legalization of marijuana use is a trend that has swept the nation and left a lot of employers scratching their heads. Marijuana usage is legal in some capacity in at least 23 states. With 2015 sales tax totaling $135 million for Colorado alone, it is likely we will see other states considering legalization in 2016. This has many employers trying to figure out how to adapt to these changes in terms of their drug screening policy. You are one of the employers affected by the legalization of marijuana if your company resides in any of the states listed below.

States that have legalized recreational marijuana use:

·         Alaska

·         Colorado

·         Oregon

·         Washington

States that have legalized medical marijuana use:

·         Alaska

·         Arizona

·         California

·         Colorado

·         Connecticut

·         Delaware

·         Hawaii

·         Illinois

·         Maine

·         Maryland

·         Massachusetts

·         Michigan

·         Minnesota

·         Montana

·         Nevada

·         New Hampshire

·         New Jersey

·         New Mexico

·         New York

·         Oregon

·         Rhode Island

·         Vermont

·         Washington

With almost half of the United States allowing either medical or recreational marijuana usage, employers are asking “Do I need to change my drug screening policy to account for these local laws?” The short answer is no.

The precedent has been set by a Colorado Supreme court ruling from June of last year that affirmed that businesses can fire employees for the use of marijuana – even if the employee is off-duty. While the activity is legal under state law, it is still not legal under federal law. This means that employers in any of these states can still set their own policies on drug use, including listing marijuana use as an offense subject to termination of employment. 

So for now, employers are free to continue drug testing for marijuana as a pre-employment or post-employment measure. It will be interesting to see how this issue develops over the course of the next few years. We will monitor any new cases and legislation in order to update employers accordingly.

Understanding Adverse Action

The background screening process is simple, right? You obtain the candidate’s consent, initiate the background check, and your job is done. Well…not exactly. There are certain steps that need to be taken if an applicant is turned down for a job because of the background check. You would be surprised how many employers are getting this major component of the background screening process wrong.

Companies are simply missing the mark on this part of the process, which is referred to as adverse action. Adverse action means that you intend to deny the applicant employment based upon information obtained from the background check.  

Before taking an adverse employment action, the candidate must receive a pre-adverse action letter, a notice that includes:

• A copy of the consumer report you relied on to make your decision
• A copy of "A Summary of Your Rights Under the Fair Credit Reporting Act”

This notice allows the applicant to review and dispute the findings of the report. Before a final determination is made and the adverse action letter is sent to the applicant, you must allow an appropriate amount of time for the applicant to respond to the pre-adverse action notice (According to the FTC, employers should wait 5 days).

After you have taken an adverse employment action, the candidate must be informed (orally, in writing, or electronically). We recommend informing the applicant in writing by using an Adverse Action Letter, a notice that tells the applicant:

• He or she was rejected because of the information in the report
• The name, address, and phone number of the credit reporting agency (CRA)
• The CRA did not make the adverse decision and cannot give reasons for the decision     
• He or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

With class actions continuing to pop up in 2016, we recommend that you review your adverse action process. Skipping any of these steps not only hurts your company and its reputation, but also infringes upon the rights of the applicants you are screening. For more information, check out this joint publication from the FTC and EEOC. Let us know if you have any questions.