Newark (NJ) Ordinance "Bans the Box" and Significantly Restricts the Use of Criminal History Information in Employment

The City of Newark, New Jersey recently passed an ordinance that will significantly impact employers’ and other entities’ ability to conduct criminal background checks or even ask about a candidate’s criminal background. The ordinance limits both when and the extent to which employers may ask about or use criminal history in employment. Newark’s ordinance12-1630, entitled “Ordinance To Assist The Successful Reintegration Of Formerly Incarcerated People Into The Community By Removing Barriers To Gainful Employment And Stable Housing After Their Release From Prison; And To Enhance The Health And Security Of The Community By Assisting People With Criminal Convictions On Reintegration Into The Community And Providing For Their Families,” goes into effect on November 18, 2012.

Newark’s ordinance is the latest example of a series of efforts at the federal, state and local level aimed at curtailing employers’ ability to use criminal history information in employment. At the federal level, employers should be aware of the Equal Employment Opportunity Commission’s (EEOC) April 25, 2012 Guidance on the Use of Arrest and Convictions (the Guidance) which sets forth practices employers may want to consider so as not to be a target of the EEOC. Similarly, a number of states have pending legislation seeking to follow the EEOC’s lead. This, in addition to other states which have already regulated this area.

Who is Covered Under Newark’s Ordinance

Newark’s ordinance is only applicable when the “the physical location of the prospective employment [is] in whole or substantial part, within the City of Newark.” In that sense, it is of limited local application. Importantly, the term “employer” is defined as “any person, company, corporation, firm, labor organization, or association, which has five (5) or more employees and does business, employs persons, or takes applications for employment within the city of Newark…”

“Employment” is defined more broadly, however, as “any occupation, vocation, job, work or employment with or without pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.” (emphasis added).
These definitions suggest that the prohibitions contained in the ordinance, as well as the affirmative obligations it imposes, may apply with equal force when an employer is seeking volunteers, students, or independent contractors as opposed to solely employees.

As always, we suggest you consult with your own counsel regarding this matter, however feel free to contact us for further information.

Modified "Summary of Rights" goes into effect January 1, 2013

The entire focus here is on wording which modifies whose authority governs the notice process..... Our forms within the system will be in full compliance as of the effective date, 1-1-2013 For our clients that  handle their own notice and disclosure, you will be required to make the changes regarding the governing body, should the consumer want to contact them.  ( CFPB V FTC )
 According to regulations from the Consumer Financial Protection Bureau (CFP, three essential forms mandated by the federal Fair Credit Reporting Act (FCRA) used in the background screening process must be modified by January 1, 2013. The forms must be changed to reflect that consumers can obtain information about their rights under the FCRA from the CFPB instead of the Federal Trade Commission (FTC). The three forms in use currently indicate that the FTC is the agency consumers can contact with questions.
The three forms at issue are:

• Summary of Consumer Rights under the FCRA
• Notice to Users of Consumer Reports of their Obligations under the 
• Notice to Furnishers of Information of their Obligations under the FCRA

Each of the three notices is mandated for use in certain situations under the Fair Credit Reporting Act:

• The “Summary of Consumer Rights under the FCRA” is a notice that a background screening firm must provide to an employer and employers in turn must provide the notice to applicants in different situations.
• The FCRA also mandates that a background screening firm (known as a Consumer Reporting Agency or “CRA”) must provide each user of its services the “Notice to Users of Consumer Reports of their Obligations under the FCRA.”
• The “Notice to Furnishers of Information of their Obligations under the FCRA” is aimed at certain furnishers of information to CRAs and must be provided in prescribed situations such as a re-investigation where the consumer disputes the report or in a situation involving identity theft.

The changes are the result of the creation of the CFPB as part of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) that was signed into law by President Barack Obama on July 21, 2010. The CFPB has rule making and enforcement powers over the FCRA. However, the CFPB does not have supervisory power over background screening firms. Congress specifically exempted background screening firms from being supervised by the CFPB since a background check report is not a financial product. The result may be some confusion as the CFPB and FTC determine which agency will perform which tasks.
The primary difference is that instead of listing the FTC contact information, the CFPB contact information is utilized in the form.

Click here to get a copy of the new "FCRA-Summary of Rights 2013"

Dollar General Next on the List for the EEOC

According to Dollar Generals latest 10Q, they are being investigated by the EEOC regarding their Background Screening Policy and how they use criminal records in hiring. The EEOC has alleged that Dollar General has discriminated against minorities for the way they apply their policy against applicants with criminal records.

Although the complaint has not been settled, it will be a long and arduous process to resolve this matter with the EEOC. 

All companies should review their employment screening policy and process to adhere to the "New Guidelines" published by the EEOC.  

Indiana to Restrict Use of Criminal Records

The State of Indiana recently passed a law that prohibits the use of certain criminal records.   The new law Indiana House Bill 1033 limits the use of what Employers may obtain from an applicant, what a "consumer reporting agency" (CRA) may obtain from the state courts and what a CRA can report to employers. 

Effective July 1, 2012, the prohibits courts from disclosing information on alleged infractions where the records is:

• is not prosecuted or if the action against the person is dismissed;
• is adjudged not to have committed the infraction; or
• is adjudged to have committed the infraction and the adjudication is subsequently vacated;
• was convicted of the infraction and satisfied any judgement attendant to the infraction conviction more than five years ago.
• the court in which the action was filed shall order the clerk not to disclose or permit disclosure of information related to the infraction to a noncriminal justice organization or an individual.

The bill also contains additional requirements that take effect on July 1, 2013.  We will send out more information on these new requirements as we move closer to the effective date.

Vermont Joins Growing Number of States Restricting Use of Credit Checks for Employment Purposes

Effective July 1, 2012, Vermont joins California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Washington, as jurisdictions which restrict an employer’s right to obtain and use credit information for making employment decisions.

Under this new law, a Vermont employer may not inquire about or use an applicant or employee’s credit report or credit history with respect to employment, compensation, or a term, condition, or privilege of employment unless: 1. The information is required by state or federal law or regulation; 2. The position being sought or held involves access to confidential financial information (defined as sensitive financial information of commercial value that a customer or client of the employer gives explicit authorization for the employer to obtain, process, and store and that the employer entrusts only to managers or employees as a necessary function of their job duties); 3. The employer is a financial institution as defined in 8 V.S.A.§ 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5);  4. The position being sought or held is that of a law enforcement officer as defined in 20 V.S.A. § 2358, emergency medical personnel as defined in 24 V.S.A. § 2651(6), or a firefighter as defined in 20 V.S.A. § 3151(3); 5. The position being sought or held requires a financial fiduciary responsibility to the employer or a client of the employer, including the authority to issue payments, collect debts, transfer money, or enter into contracts; 6. The employer can demonstrate that the information is a valid and reliable predictor of employee performance in the specific position being sought or held;  and/or 7. The position being sought or held involves access to an employer’s payroll information.  However, even if an employer can avail itself of one of these exemptions, the applicant or employee’s credit report or history may not be the sole factor in decisions regarding employment, compensation, or a term, condition, or privilege of employment.

If an employer is lawfully permitted to obtain credit history, the employer must: 1. Obtain the employee’s or applicant’s written consent each time the employer seeks to obtain the employee’s or applicant’s credit report; and 2.  Disclose in writing to the employee or applicant the employer’s reasons for accessing the credit report, and if an adverse employment action is taken based upon the credit report, disclose the reasons for the action in writing. The employee or applicant has the right to contest the accuracy of the credit report or credit history.

Vermont employers who conduct credit checks must closely review this statute to ensure that information is only obtained where permitted by law and that all necessary disclosures are provided to applicants and employees.   Further, even if an exemption is applicable, a Vermont employer must not base any employment decisions solely on credit history.

Feel free as always to direct any questions on the appropriate use of Credit Reports to compliance@s2verify.com

EEOC Issues Enforcement Guidance On the Use of Arrest and Criminal Conviction Record in Employment Screening

The EEOC issued their Enforcement Guidance today, April 25, 2012, on how arrest and criminal conviction records can and should be used by employers with regards to hiring.  

The guidance document can be found at www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

We encourage you to please take the time to read this document.  Should you have questions, please feel free to reach out to us at anytime for further discussion.

Background Checks & Credit Reports

 On March 13th, Commissioner Victoria Lipnic of the Equal Employment Opportunity Commission (EEOC) spoke at an event on "Due Diligence, Background Checks and Employment: Protecting the Safety of Employees, Customers and At-Risk Populations." Lipnic stated that the EEOC is "likely" to issue new guidance to employers on the use of both criminal history and credit background checks in the near future.

Regarding criminal history, Lipnic noted that the EEOC was unlikely to establish a strict rule about the specific period of time after which a conviction could no longer be considered in making employment decisions. Lipnic, however, cautioned that employers should avoid "blanket" bans on hiring individuals with criminal convictions as such bans could have a disparate impact on certain minority groups.

The event was hosted by the National Association of Professional Background Screeners, the Consumer Data Industry Association, and the U.S. Chamber of Commerce.

(http://www.eeoc.gov/eeoc/lipnic.cfm)

FTC Issues Employers Guidance for FCRA

The Federal Trade Commission (FTC) issued Employers Guidance for the use of Consumer Reports. 

While this information is not new, the Guidance is another step by the Federal Government, both the FTC and EEOC, to ensure that companies are following the Fair Credit Reporting Act(FCRA).

Please review these brief guidelines to ensure your company is in compliance.

FTC Sends Warning Letters to Background Companies Using Mobile Apps

The Federal Trade Commission (FTC) issued warning letters to several companies that have designed and implemented easy background checks thru mobile devices.  In the letter the FTC states that the apps could violate consumer reporting laws.


The letter states the following:

"Under the FCRA, a company is a consumer reporting agency (CRA) if it assembles or
evaluates information on consumers for the purpose of furnishing consumer reports to third
parties. Consumer reports include information that relates to an individual's character,
reputation or personal characteristics and are used or expected to be used for employment,
housing, credit, or other similar purposes. For example, when companies provide information to
employers regarding current or prospective employee's criminal histories, they are providing
consumer reports because the data involves the individual's character, general reputation, or
personal characteristics. Such companies, therefore, are acting as CRAs in this capacity and
must comply with the FCRA. .....

The Commission reserves the right to take action against you based on past or future law
violations; your practices also may be subject to laws enforced by other federal, state, or local
law enforcement agencies. A violation of the FCRA may result in legal action by the FTC, in
which it is entitled to seek injunctive relief and/or monetary penalties of up to $3,500 per
violation."  says the FTC.

"The FTC and EEOC have stepped up efforts to enforce the Fair Credit Reporting Act.  With the adoption of the internet and the amount of data that can be accessed by companies, Credit Reporting Agencies (CRA's) must take additional steps to ensure the accuracy and efficacy of the data they report.   This cannot happen if the companies making these apps aren't reviewing the applicants records to ensure that they are held to the state and federal rules and standards." says Bill Whitford, CEO of S2Verify.

"Although I applaud the technology initiative, there can be steps taken to review the information before it is reported."  ... Bill Whitford

About S2VERIFY:
S2Verify is a leading process innovator in the application of background screening and employment screening technologies to the needs of business and individuals for employee and tenant information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand and use by authorized personnel. With offices in Atlanta, Chicago and Miami the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of background screening services 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

Man Denied Job Over 20-Year-Old Criminal Conviction, Wins Discrimination Lawsuit

A job applicant for a temporary staffing agency was denied a position over a record from the 1980's.  He filed a discrimination case against the temporary staffing agency and won. 

“Employment policies that impose a blanket exclusion on people with past convictions, without any consideration of the relationship of the conviction to the job in question, can constitute unlawful discrimination," Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia, said in a press release.

The nonprofit law center helped the man file the employment discrimination lawsuit, which explains why denying an applicant employment based on their criminal record violates the law:

"While such policies are facially neutral, they produce severe disparate impact on racial minorities, including African-American, Native Americans and Latinos, because of the significantly higher rates of criminal convictions experienced by these populations."

Recently Pepsi settled a similar case for $3.1 million dollars for using arrest records that kept approximately 300 people from getting a job.

"More companies are getting sued because of their inconsistent hiring policies, using arrest records, and using convictions that are not within the Federal or State guidelines or inconsistently applying the law", says Bill Whitford, CEO of S2Verify.  "Companies need to review their policy and framework around hiring to adjust to these actions and lawsuits"    

Pepsi Beverage Co. Pays $3.1 Million For Using Arrest Records

Pepsi Beverage Co was sued by the EEOC for using arrest records to disqualify approximately 300 applicants.    Recently the EEOC has held hearings on the use of arrest records and background checks to ensure they don't create a disparate impact for Black Americans and Hispanics.

"Companies absolutely need to review their Employment Screening Policies and also take note of using arrest records that do not have a conviction for employment decisions on an applicant."  said, Bill Whitford, CEO of S2Verify.    "As an industry, we are seeing more litigation around disparate impact and not following the FCRA (Fair Credit Reporting Act) and state laws and regulations.  It is critically important that your Employment Screening Vendor gives you all the facts and follows these rules to ensure 100% compliance."
 
"The FCRA and state laws limit the use of arrest records in making hiring decisions.   In addition, there are many state specific rules around what a CRA (Consumer Reporting Agency) can report to a client."  

"We see many new clients that still don't understand the limitations or complexity of following these rules and regulations.  There previous provider simply didn't keep them informed."

About S2VERIFY:
S2Verify is a leading process innovator in the application of background screening technologies to the needs of business and individuals for employee and tenant information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand and use by authorized personnel. With offices in Atlanta, Chicago and Miami the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of background screening services 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.

Employers Add 200,000 Jobs, Unemployment Lowest in Nearly 3 Years

A burst of hiring in December pushed the unemployment rate to its lowest level in nearly three years, giving the economy a boost at the end of 2011. The Labor Department said Friday that employers added a net 200,000 jobs last month and the unemployment rate fell to 8.5 percent, the lowest since February 2009. The rate has dropped for four straight months.The hiring gains cap a six-month stretch in which the economy generated 100,000 jobs or more in each month. That hasn’t happened since April 2006.

“There is no question that today’s employment report is a positive and there is also no question that the pace of job growth has accelerated of late,” said Dan Greenhaus, an analyst at BTIG LLC, a brokerage firm
A better job market is a positive sign for President Barack Obama, who is bound to face voters with the highest unemployment rate of any sitting president since World War II. Unemployment was 7.8 percent when Obama took office in January 2009.

Still, the level may matter less to his re-election chances if the rate continues to fall. History suggests that presidents’ re-election prospects hinge less on the unemployment rate itself than on the rate’s direction during the year or two before Election Day.

For all of 2011, the economy added 1.6 million jobs, better than the 940,000 added in 2010. The unemployment rate averaged 8.9 percent last year, down from 9.6 percent the previous year. Economists forecast that the job gains will top 2.1 million this year.

The December report painted a picture of a broadly improving job market. Average hourly pay rose, providing consumers with more income to spend. The average work week lengthened, a sign that business is picking up and companies may soon need more workers.

And hiring was strong across almost all major industries. Manufacturing added 23,000 jobs, as did the health care industry. Transportation and warehousing added 50,000 jobs. Retailers added 28,000 jobs. Even the beleaguered construction industry added 17,000 workers. More jobs and higher pay are crucial to helping the economy grow. They could enable shoppers to increase spending, which fuels 70 percent of economic activity.

The economy likely grew at an annual rate of above 3 percent, a healthy pace. Still, the job market has a long way to go to recover from the Great Recession. The nation has 6 million fewer jobs that it did in December 2007, when the recession began. In addition to the more than 13 million who were unemployed in December, a lot of people can’t find full-time work. And many who are unemployed have stopped looking for jobs. The government only counts people as unemployed if they are actively searching for jobs.
When including those groups, the broader “underemployment” rate was 15.2 percent. That’s down from 15.6 percent the previous month, but still high. The figure has dropped for three straight months.
A more robust hiring market coincides with other positive data that show the economy ended the year with some momentum.

Weekly applications for unemployment benefits have fallen to levels last seen more than three years ago. Holiday sales were solid. And November and December were the strongest months of 2011 for U.S. auto sales.

Many businesses say they are ready to step up hiring in early 2012 after seeing stronger consumer confidence and greater demand for their products.

Link to article: http://www.washingtonpost.com/business/economy/sixth-straight-month-of-solid-hiring-expected-when-government-reports-on-december-job-growth/2012/01/06/gIQAv7lMeP_story.html?wpisrc=al_comboNE_b