Improving Your Employment Screening Program in 2015 (Part 3)

Customer Service

We have all had experiences with bad customer service at one time or another. When dealing with customer service is a headache more often than not, it’s time to review your provider. Awful customer service is a deal breaker. Whether or not the product or service offered is great becomes irrelevant when communicating with the customer support staff is a hassle. If you’re on the fence about changing providers, here are a few questions to ask yourself:

How accessible is the Customer Service Team?

Navigating through the maze of an overly complicated automated phone system is unacceptable. When you’re constantly put on hold for an extended period of time, your provider is not holding up their end of the bargain. Employment screening is in many cases very time sensitive. When a position needs to be filled quickly, you do not have the luxury of dealing with an unresponsive vendor. Make sure you can quickly reach someone when you need help. Don’t settle for less.

How knowledgeable/helpful is the support staff?

The customer support team should be well-trained and fully equipped to handle any questions and/or concerns. Whether you have questions about FCRA compliance or need help navigating the system, the support staff should be able to help you. If they cannot answer a question, they should be able to quickly direct you to someone who can. Don’t stand for being bounced around and constantly put on hold.

How long does it take to resolve a problem?

Your issues should not take more than one phone call on average to resolve. If you have to keep calling to obtain a solution, your provider is letting you down. So this year, hold your provider to the service excellence that they promised.

Are you dealing with any of the problems mentioned above? If so, take action this year!

Improving Your Employment Screening Program in 2015 (Part 2)

Choosing the Right Screening Package

Employment screening can be a little overwhelming. A lot of people that are initiating a background screening program for the first time ask, “What kind of records should I look for?” The answer to that question depends on a number of factors:

1. Which industry is your company a part of?

Your industry plays an important part in what searches need to be run. For example, if you are in the transportation industry, there will obviously be an emphasis on driving records. For a job in the healthcare industry, on the other hand, a background check may include checking & monitoring health care sanctions, education verification, and license & certification verification.

2. Are there any particular searches that are required by law in your state or industry?

Most states require criminal background checks if the job involves working with children, elderly, or disabled. Certain positions, for example, may require a thorough background check for security clearance. While certain searches are required, we recommend protecting your company by doing more than the bare minimum required by the state.

3. What are the responsibilities of the position you are attempting to fill?

The EEOC recommends that criminal conduct exclusions be related to tasks required by the particular job the individual has applied for. If a job requires the employee to work with children, you would not hire someone who has recently been found guilty of indecent exposure. As this particular charge interferes with business necessity, denial of employment would be the only course of action.

4. How much access will the applicant have to assets and/or customers?

The more access the employee has to your company’s assets and customers, the more thorough your background check should be. Neglecting to run a complete background check is high risk and can have catastrophic results. For example, a position may require the managing, monitoring, and/or using assets for the company’s best interest. It would be prudent for the employer to conduct a comprehensive background check to look for red flags such as theft, embezzlement, fraud, forgery, etc.

Figuring out the screening criteria for each position can seem like a daunting task. Start by asking yourself these questions. Still overwhelmed? Reach out to your vendor. This is where their experience should come in handy.

Remember to use the same employment screening criteria for each individual applying for any given position. Facing a lawsuit for discrimination can be detrimental to your organization, but is also completely avoidable. For more information about legal compliance, refer back to Part 1 (Compliance) of our 3-part blog on "Improving Your Employment Screening Program in 2015".

Improving Your Employment Screening Program in 2015

As we kick off 2015, we thought it would be fitting to provide you with some insight on refining your employment screening program. Understanding the basics of employment screening is important, whether you are initiating an employment screening program for the first time or seeking improvements for an existing program. Is improving your program on the agenda for 2015? This 3-part blog will look at three areas in your background screening program worth reviewing: Legal Compliance, Choosing the Right Screening Package, and Customer Service. 

Part 1: Compliance

In Regards to the EEOC:

The first step to promoting compliance is creating a written policy for employment screening at your company. Creating a clearly defined policy and strictly adhering to those guidelines is a great way to protect your company. One recommendation is to clearly state exactly what background information will be utilized for each job position.

You want a non-discriminatory background screening process that does not change from person to person. However, it should be modified for each available job position. EEOC guidance suggests companies determine whether a criminal conduct exclusion is job related and consistent with business necessity. And remember, valid exclusions include relevant convictions, NOT arrests.

The EEOC, which acts in interest of Title VII of the Civil Rights Act, states that employers need to show that their policy operates to effectively link specific conduct, and its dangers, with the risks inherent in the duties of a particular position. This is one of the three factors that the EEOC suggests employers take into account when considering denial of employment. The other two factors are the nature of the crime and the time elapsed. For more information, please read the EEOC’s guidance in full.

In Regards to the FCRA:

The Fair Credit Reporting Act regulates the collection, dissemination, and use of consumer information. Employers are required to follow the regulations set forth by the FCRA when using consumer reporting agencies (like S2Verify) to obtain consumer reports for “employment purposes”. 

The numerous FCRA class action lawsuits from 2014 just go to show that employers are still getting this wrong. O’Reilly Auto Parts, Swift Transportation, Whole Foods, Canon Solutions America, Dollar General, and Publix are just a few companies that were recently involved in costly class action lawsuits. Failure to comply with the FCRA can cost companies millions of dollars. 

Below are rules you must follow to maintain FCRA compliance:    

                                           

Before obtaining background information:

1.       Disclosure and Authorization

a.       Disclosure and authorization forms were the reason many employers (O’Reilly Auto Parts, Publix, Whole Foods) faced class action lawsuits in 2014.

b.      Must be signed BEFORE the background check

c.       Disclosure and authorization forms should be standalone documents and cannot contain extraneous information such as release language

If you plan to deny employment based on the background report:

1.       A Pre-Adverse Action Notice must be sent to the applicant. It must include:

a.       Name, address, and phone number of CRA

b.      The fact that the CRA did not make the adverse decision and cannot give reasons for the decision

c.       His/her right to a free copy of the consumer report

d.      His/her right to contact the CRA to dispute the accuracy of the report

e.      Summary of Rights including any State specific requirements

2.       After allowing the applicant five days to dispute any information found in the report, an Adverse Action Notice is to be sent to the applicant. It must include:

a.       Notification to him/her of final decision to deny employment based on consumer report.

b.      All notification provisions used in Pre-Adverse Action letter.

In Regards to Local Laws:

While it is important to abide by the FCRA and EEOC’s standards, that alone is not enough for legal compliance. You must also stay up-to-date on local laws. In 2014, new local “Ban the Box” laws popped up in counties, cities, and states all over the country. These “Ban the Box” laws, as they are called, not only restrict the use of criminal history inquiry on the application, but potentially tell you at what point in the hiring process a background check may be run. 

A good resource to keep up with your particular city/state and any laws that may apply to your business is NELP.org. For the sake of caution, our best practice recommendation, in most cases, is to hold off on the background check until after a conditional offer is made.

NELP.org - http://www.nelp.org/page/content/banthebox/

Publix Settles for $6.8 Million in FCRA Class Action

“I release Publix Super Markets, Inc., its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.” The inclusion of this language in their background check disclosure form is costing Publix millions of dollars. Facing a potential 90,000+ class members and an indisputable violation of the FCRA, Publix has decided to settle for $6.8 million.

Long story short, your disclosure form cannot consist of anything more than stating your intent to procure a consumer report for employment purposes per the FCRA. The inclusion of release language, i.e. “I hereby release company from liability”, will open your business up to a potential class action suit much like this one. Publix isn’t the only company to have made this mistake recently. This class action lawsuit follows closely on the heels of many similar cases. Whole Foods, ClosetMaid, O’ Reilly’s Automotive Stores Inc., CEC Entertainment Inc., and ESA Management are just a few of the companies who failed to provide a standalone disclosure and/or included release language.

While the disclosure and authorization can be put together, employers may want to separate the two. As it stands, there are no rules against release language on your authorization form. Before implementing any changes, however, it would be prudent to discuss them with your legal counsel. Also, it would be wise for all employers to review their current disclosure and authorization forms with their legal counsel to make sure you are not making a similar mistake.

You can find the Fair Credit Reporting Act in its entirety here.

FCRA Compliance: Reviewing Your Disclosure and Authorization Forms

    We would like to stress the importance of carefully reviewing the Disclosure and Authorization forms ("Authorization") that are sent to job applicants prior to obtaining background checks. You should ensure that these Authorizations do not include any indemnification or release provisions. 

    Recently an individual in California filed a class action lawsuit seeking to hold both a prospective employer and the CRA that provided a consumer report to that employer liable for failing to comply with the requirements of Section 604(b)(2) of the Fair Credit Reporting Act (FCRA).

    The Authorization that the employer used contained language asking applicants to indemnify and release both the CRA and the employer from any claims that may arise from the collection, disclosure or use of the information provided on the Authorization form. Similar release language, sometimes called a hold-harmless clause, has been the subject of many claims against employers. 

    Class action lawsuits alleging violations of the FCRA are on the rise. Therefore, please be certain that the Disclosure and Authorization forms that you provide to job applicants do not include any type of indemnity, release, or hold-harmless language."

Thanks for your attention to this important compliance matter.

Washington D.C. Ban-the-Box Legislation Set to Take Effect in October

Ban-the-box legislation originally prohibited employers from including the question “have you been convicted of a crime” and its associated check box. This was in an effort to rehabilitate former offenders. The thought process is that without an opportunity to gain employment, many are doomed to become repeat offenders. While recent laws in the same vein are being referred to as ban-the-box laws, this is a bit of a misnomer. The movement towards more regulations on background screening has evolved to include more stipulations than just removing a check box from an application.

The latest to join the recent push for more regulations on background screening is Washington D.C. The bill signed by Mayor Vincent Gray last month will go into effect after a 30-day period of congressional review. It is scheduled to go into effect October 21, 2014. This law, dubbed the Fair Criminal Record Screening Amendment Act of 2014, applies to all D.C. employers with 10 or more employees.

The law states:

•          Employers may not make any inquiry about an arrest or criminal accusation against the applicant, which is not pending and did not result in a conviction.
•          An employer must not make any inquiry about an applicant’s criminal history until after making a conditional offer of employment.
•          A conditional offer can only be rescinded if there is a “legitimate business reason”

Exceptions where inquiry into an applicant’s criminal may precede a conditional offer:

•          Where any federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment
•          Where a position designated by the employer is part of a federal or District government program or obligation that is designed to encourage the employment of those with criminal histories

Penalties for violation:

•          For employers that employ 11-30 employees, a fine of up to $1,000
•          For employers that employ 31-99 employees, a fine of up to $2,500
•          For employers that employ 100 or more employees, a fine of up to $5,000

It is crucial that D.C. employers update their hiring practices no later than October 21^st.  Ensure that the application has been reviewed and modified accordingly. Also, make sure that a criminal background check is not performed before a conditional offer has been made. Lastly, the exclusion of an applicant based on criminal conduct must be job related and consistent with business necessity. If you are not sure what that means, refer to this EEOC guidance.

There are now 13 states and around 70 cities and counties in the U.S. that have enacted some form of “Ban-the Box” legislation. We will continue to report new developments so that you may remain informed and in compliance with the local laws that apply to you and your organization. Another good resource for staying up-to-date is www.nelp.org.

S2Verify Has Received NAPBS Accreditation

We are proud to announce that we have received accreditation by the National Association of Professional Background Screeners’ (NAPBS®) Background Screening Credentialing Council (BSCC). This endorsement from the NAPBS validates our commitment to service excellence. This accreditation serves as proof of our business and process standards. It reflects the values our company has maintained since its inception in 2009.

To become BSCC-accredited, consumer reporting agencies must pass a rigorous on-site audit, conducted by an independent auditing firm, of its policies and procedures. The audit focuses on six critical areas: consumer protection, legal compliance, client education, product standards, service standards, and general business practices. Only about 10% of background screening providers in the United States are NAPBS accredited. We are so honored to be in elite company and recognized as one of the leaders in our industry. 

For more information about NAPBS accreditation and what it entails, click here.