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.

Maintaining a Drug-Free Workplace in 2016

According to the Substance Abuse and Mental Health Services Administration (SAMHSA), illegal drug use is on the rise. A national survey found a large increase in illicit drug users between 2013 and 2014. 27 million Americans aged 12 or older, a number that is surely still on the rise, identified themselves as illicit drug users last year. This number translates to about 1 in 10 Americans. This high number continues to be driven by marijuana use (22.2 million users) and the abuse of prescription drugs (4.3 million users). 

The near 13% increase in illicit drug use in the span of a year can be mainly contributed to the legalization of marijuana use in Washington and Colorado. From 2012 to 2013, positive tests for marijuana increased 6.2 percent nationally. Positive drug test results for Colorado and Washington increased by 20 percent and 23 percent respectively. As a reminder to companies in either one of these states, the legalization of marijuana does not currently prohibit employers from testing for the substance.

The staggering numbers may have you believing that the numbers are skewed. You may think that surely a large proportion of illicit drug users are unemployed. However, of the more than 22 million illicit drug users aged 18 or older, just over 70 percent were employed either full or part time. That means your company may be susceptible to a loss caused by a workplace accident or lowered productivity.

Drug Abuse on the job can impact your company in the following ways:

• Erratic work quality

• Lack of focus

• Lowered productivity 

• Increased absenteeism

• Unexplained disappearances from the job site

• Carelessness, resulting in errors

• Needless risk taking

• Disregard for safety, therefore increasing accidents

• Extended breaks and/or early departures

• Automobile accidents 

What can I do to maintain a drug-free workplace?

Review your company’s drug testing policy. As an employer, you need to both understand the purpose of the substance abuse testing program and effectively communicate the policy to candidates and employees prior to the program start date. With medical marijuana legal in 23 states and recreational marijuana legal in 4 states, look over the section that addresses the use of marijuana. Make sure you have clarified your company’s stance on safety, marijuana use, and potential ramifications for violations of your company’s policy.

Continue or increase drug testing. There are many reasons for issuing a drug test. Many companies engage in pre-employment drug testing, hoping to deter users from applying for positions. Random drug testing is an option that promotes workplace safety and more effectively deters workplace drug use. Post-accident/reasonable suspicion testing also communicates a company’s stance on workplace safety. This method provides cause for termination and reduces workers compensation exposure. Return to duty/follow-up testing reduces risk while allowing trained employees to return to work. This method also deters relapse. 

It might be time that you review your drug screening policy for the new year.

Sources include:

SAMHSA National Survey on Drug Use and Health

NAPBS

Current Consulting Group LLC

Guidance Issued for New York City Fair Chance Act

In our last blog, we talked about New York City’s Fair Chance Act (FCA), a law passed last month that requires a conditional offer to be extended to the applicant before conducting a background check. Earlier this month, to help New York employers understand the new law, the New York City Commission on Human Rights released an enforcement guide as well as a revised FCA Notice evaluation form. The revised version appears to be a result of concerns that arose upon the release of the original notice form. The FCA Notice Form is intended to be provided with the pre-adverse-action notice to justify the denial of employment based on the analysis of NY Correction Law Article 23-A factors.

The guidance breaks down violations of the FCA as such:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

 2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the New York City Human Right Law (NYCHRL):

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;

b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;

c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction.

Penalties for violations will be based on the following factors, among others:

1.       The severity of the violation

2.       The existence of additional previous or contemporaneous violations

3.       The employer’s size, considering both the total number of employees and its revenue

4.       Whether or not the employer knew or should have known about the Fair Chance Act

In summary, the FCA does not allow an employers’ application or print of any kind to mention background checks or the requirement of a clean record to obtain employment. Employers may not inquire about one’s criminal history before a conditional offer of employment. If an employer is taking adverse action they must use disclosure and authorization forms, must provide a written copy of theArticle 23-A analysis AKA the FCA Notice, and must allow three business days for the applicant to dispute the findings of the background check. Lastly, employers cannot deny employment based upon any arrests that did not lead to a conviction.

The entire interpretive guide can be found here.

The new Fair Chance Act Notice can be found here.

NYC's Fair Chance Act Now in Effect

Starting this week, New York City’s Fair Chance Act (FCA) is in effect for employers in the city. The FCA amends the administrative code of the city of New York in relation to prohibiting discrimination based on one’s arrest record or criminal conviction. The amendment, yet another Ban the Box ordinance, dictates a conditional offer of employment is extended before inquiring about the criminal history of any applicant.

The NYC Commission on Human Rights has coordinated the release of an evaluation form, titled Fair Chance Act Notice, in conjunction with the Fair Chance Act. This form can be used by employers as a guideline for compliance with Article 23-A of New York Correction Law.  

The amendment affects New York City companies that employ more than four employees. Contractors are included in the employee count. However, any employers following state, federal, or local laws requiring a background check for employment are exempt.