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.

Understanding the Ban-the-Box Movement

Our recent blogs have addressed the NYC Fair Chance Act, which is actually part of a larger movement that we will talk about today called ban-the-box. The purpose of the movement is to ensure that individuals with a criminal record are not barred from obtaining employment based solely on their criminal history. The policies that have resulted from this movement determine when it is appropriate to screen your potential employees.

The reason for this movement boils down to some staggering numbers. According to a 2012 study, the number of ex-felons in the U.S. has surpassed 18 million people. 700,000 individuals are released from prison every year. And a very noteworthy statistic is that young black men are seven to eight times more likely to be incarcerated than whites of their age group. Based on these shocking numbers, it is no surprise that ban-the-box laws are continuing to pop up around the nation. It is also obvious that these policies will continue to be a hot topic in 2016.

Nineteen jurisdictions have enacted ban-the-box laws since 2010. These ordinances have been issued at the city, county, and state level. And what complicates things even more, there is substantial variation from jurisdiction to jurisdiction. While all of these policies ban the criminal history check box from the job application, each jurisdiction has a different stance on when criminal history inquiries can be made.

For example, here is a breakdown of different jurisdictions in terms of when an inquiry can be made:

·         After the initial screening of applicants:

o   Chicago

o   Illinois

o   Massachusetts

o   Minnesota

o   Seattle

·         At the first interview:

o   Buffalo

o   Oregon

o   Rhode Island

·         After the first interview:

o   Montgomery County

o   New Jersey

o   Philadelphia

o   Prince George’s County

o   Rochester

o   San Francisco

·         After the conditional offer:

o   Baltimore

o   Columbia

o   DC

o   Hawaii

o   New York City

Differences from jurisdiction to jurisdiction don’t end there either. There are exceptions to each policy that vary depending on your place of business. Even the content of your adverse action notices may be different depending on the local policy. New York City, for example, must provide analysis under NY Article 23-A. This can now be done through the use of the FCA Notice form.

It is important to educate yourself on the local ban-the-box policy that applies to your business. Try to monitor legislative developments. Review your job applications, background check documents, and substantive policies and guidelines. Always consider how ban-the-box laws fit into your FCRA compliance process. We always recommend speaking to your lawyer to ensure your background screening program is 100% compliant.

If you have any questions about how these ban-the-box policies may affect you, feel free to respond to the blog and we will answer them. Also, look out for our ban-the-box policy map that will be a part of our new website in 2016.