E-Verify Update

  While it is not mandatory nationwide at this time, there has been recent legislation making E-Verify a requirement in some states. It is important, as an employer, to be aware of your state’s requirements and which businesses it applies to. Each state has a different policy.

A total of 20 states require the use of E-Verify for at least some public and/or private employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia.

Recent Legislation:

Georgia: The Georgia Illegal Immigration Reform and Enforcement Act of 2011 (HB 87) mandates that private employers with over 10 employees register with and use E-Verify. The mandate’s first effective date was January 1, 2012 for businesses with 500+ employees. On July 1, 2013 the requirements became effective for businesses with 10+ employees. 

North Carolina: The North Carolina General Assembly enacted HB 36 that required businesses in the state with 25 or more employees to use E-Verify on all new hires. North Carolina, much like Georgia, has been using a phased approach. HB 36 became active in October 1, 2012 for employers with 500+ employees. As of July 2013, it now applies to employers with 25+ employees.

Pennsylvania: SB 637, enacted in July 2012, requires all public works state contractors and subcontractors with contracts worth $25,000 or more to enroll and use E-Verify by January 1, 2013.

Tennessee: The Tennessee Lawful Employment Act (HB 1378) requires all employers with more than 5 employees to use E-Verify. A phased in approach was used, starting with private companies with 500+ employees in January of 2012. The Act applies to employers with 6+ employees as of January of 2013. The Act also requires employers to maintain documentation of non-employees paid directly by the employer in exchange for labor or services.

Below is a list of specifics for each state that requires the use of E-Verify for employment eligibility verification.

	State	Citation	Year Enacted	Applies to:	Penalties:
1	Alabama	HB 56 HB 658	2011 2012	All employers (phase in) Contractors and subcontractors; prime contractors not liable for subcontractor complying with E-Verify unless they know of the violation	Cancellation of state government grants or incentives and suspension or revocation of business license up to 60 days, and possible debarment from state contracts. A business license can be permanently revoke on a second offense
2	Arizona	HB 2779 HB 2745	2007 2008	All employers	Temporary AZ business license suspension for 10 days upon first offense; permanent AZ business license suspension upon second offense
3	Colorado	HB 1343 SB 139 SB 193	2006 2008 2008	State agencies, contractors	Contractors may become ineligible to receive state contracts. The Colorado Secretary of State’s Office will post the names of vendors using contractors who knowingly employ illegal aliens to perform work on any public contracts for the state
4	Florida	EO 11-02 EO 11-116	2011 2011	State agencies, contractors, subcontractors	Possible denial of future county projects
5	Georgia	SB 529 HB 2 SB 447 HB 87 HB 742 HB 1027	2006 2009 2010 2011 2012 2012	Public employers, contractors, subcontractors with 500+ employees (phase in)	Failure to comply could result in the suspension or denial of a business license, occupational tax certificate, or other document require to operate a business in the state
6	Idaho	EO 2009-10	2009	State agencies, contractors	Immediate cancellation of the contract, reversion of unspent public funds, and monetary penalties. Every contract by a state agency for a state project or service shall include appropriate civil penalties for violation this executive order
7	Indiana	SB 590	2011	State agencies, contractors	State agencies or political subdivisions may terminate a public contract if the contractor knowingly employs an unauthorized alien
8	Louisiana	HB 342 HB 646 HB 996	2011 2011 2012	State contractors Option for private employers	Failure to complete the affidavit or use E-Verify as required would cause the work to be terminated and bar the contractor from future bidding or contract work for up to three years. HB 646 makes it a state offense to employ unauthorized workers and provides E-Verify as a defense to any charges brought under HB 646
9	Michigan	HB 5365	2012	State agencies, contractors, subcontractors	Employers who do not use E-Verify may have all state contracts terminated and become ineligible for public contracts for three years, and/or may have licenses, permits, or certificates suspended for one year.
10	Mississippi	SB 2988	2008	All employers (phase in)	Employers who do not use E-Verify may have all state contracts terminated and become ineligible for public contracts for three years, and/or may have licenses, permits, or certificates suspended for one year.
11	Missouri	HB 1549 HB 390	2008 2009	Public employers, contractors, subcontractors	A violating company’s business permit and licenses shall be suspended for 14 days. Upon the first violation, the state may terminate contracts and bar the company from doing business with the state for 3 years. Upon second violation, the state may permanently debar the company from doing business with the state.
12	Nebraska	LB 403	2009	Public employers, contractors	Loss of eligibility for state contract work and/or state economic incentives.
13	North Carolina	SB 1523 HB 36	2006 2011	State agencies, universities Localities, all employers (phase in)	Failure to comply with HB 36 can result in civil fines ($10,000+) and notification to U.S. Immigration and Customs Enforcement and local law enforcement agencies.
14	Oklahoma	HB 1804	2007	Public employers, contractors, subcontractors	Ineligibility to receive a state contract(s).
15	Pennsylvania	SB 637	2012	Public contractors, subcontractors	First violations incur a warning letter detailing the violation, posted on the website of the Department of General Services of the Commonwealth. On a second violation, the contractor is debarred from public work for 30 days. Upon subsequent violations, the contractor is debarred from public work for 180-365 days. In the case of willful violation, the contractor is debarred from public work for a period of three years. Contractors will also incur a penalty of $250-$1,000 per violation.
16	South Carolina	HB 4400 SB 20 HB 4813	2008 2011 2012	Public employers, contractors (phase in) Private employers Establishes a 24-hour hotline to report E-Verify violations	Possible civil penalty of up to $1,000 per violation and the revocation of the business license.
17	Tennessee	HB 1378	2011	All employers with 6+ employees (phase in)	Employers can incur a penalty of $500 plus an additional $500 for each employee not verified for a first violation; $1,000 plus and additional $1,000 for each employee not verified for a second violation; and $2,500 plus and additional $2,500 for each employee not verified for subsequent violations.
18	Utah	SB 81 SB 39 SB 251 HB 116	2008 2009 2010 2011	Public employers, contractors, subcontractors Private employers with more than 15 employees	Ineligibility to enter into a state contract(s). A private employer may be held civilly liable under state law in a cause of unlawful hiring of an unauthorized alien.
19	Virginia	HB 737 HB 1859 SB 1049	2010 2011	State agencies Public contractors, subcontractors with more than 50 employees	Any employer, including contractors, found to be in violation shall be debarred from entering into a contract with any agency of the Commonwealth for up to one year. The employer shall be released from debarment upon registration and participation in E-Verify. A contractor who fails to enroll and participate in E-Verify may be denied prequalification for contracts.
20	West Virginia	SB 659	2012	Public Employers, contractors	Loss of eligibility for state contract work and/or state economic incentives.

Background Screening Compliance Update

Ban-the-Box Compliance Update

As a provider of employment screening, we feel an obligation to communicate the manner in which our services can and cannot be used. We stress compliance with FCRA requirements, adhering to EEOC guidelines, and state regulations for the well-being of your firm. Due to an increase in the number of cities and counties passing “ban-the-box” regulations, we are providing you an updated list. This will serve as an additional guide as to the role of background screening in your hiring process. Data here is from the National Employment Law Project (NELP.org). The table below details the differences in the “ban-the-box” regulations for each city. 

The differences are as follows:

• which employers the law applies to (public or private sector)

• which positions the law applies to (specific positions or all)

• when a background check can be issued (at what point in the hiring process)

• whether or not EEOC criteria is included in law

• the right of an applicant to appeal background screening results

• Whether or not a copy of the background check report is to be provided

*Policies apply to contractors doing business with the Human Services Department

You will notice that some of these cities/counties incorporate the EEOC guidelines in their ban-the-box policies. For those of you who are not familiar with these guidelines, I have included them below.

The Equal Employment Opportunity Commission’s Policy on Pre-Employment Background Checks:

“There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when:

• considering the nature of the job

• the nature and seriousness of the offense

• the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.

For more information, see,

 e.g., http://www.usis.com/commercialservices/transportation/FaqStateImpact.htm.

In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Certain other disclosures are required upon the employee's request and prior to taking any adverse action based on the reports obtained.”

This information is from The Equal Employment Opportunity Commission

For more clarification from the EEOC about their policies, check out this article.

The importance of compliance cannot be overstated. I hope this serves as a compliance guide for you and your company. I will continue to provide updated information on the ever-changing laws in the employment screening industry. If you have any questions or comments, please feel free to provide your input. I will get back to you as soon as I can.

A Snag in EEOC's Plans to Regulate Background Checks

The U.S. Equal Employment Opportunity Commission  is a bipartisan Commission that enforces employment discrimination laws. One of their most recent oversight efforts has been to engage in lawsuits aimed at businesses who use background checks to rule out applicants with criminal records. The EEOC claims that certain policies and procedures followed by companies are an act of discrimination against certain minorities. Lawsuits against Dollar General and a U.S. unit of BMW are pending;  however, on August 9th, a lawsuit filed in 2009 by the EEOC against Freeman Companies was resolved last week.

Freeman Companies, an event-marketing company, may have set precedent for several other similar cases when a Federal District Judge dismissed the case brought by the EEOC.  The Judge's opinion letter stated there was a lack of facts and error-ridden statistics. There was no evidence to prove that Freeman Companies, a company that employs 30,000+ people of varying races and backgrounds, was discriminating against African Americans or Hispanic applicants. While this is but a single ruling, this case will certainly have long reaching effects on the efforts of the EEOC’s plan to enforce their opinion on how background checks are used by companies.

Companies should be allowed to protect their primary assets.... their employees and their customers. The refusal to hire an applicant with a relevant, past conviction is not the same as racial discrimination. Safeguarding a company and its employees from violence, fraud, harassment, etc. is a perfectly reasonable course of action. The recent rulings may play a huge factor in the EEOC’s attempts to regulate the use of background checks. This is a victory of sorts for companies that want to maintain a safe workplace and protect their bottom line.

How do you feel about the ruling? 

How do you think it will affect the EEOC’s attempts to enforce their opinion on how background checks should be used by companies? 

Texas House Bill 1188 Limits Liability

Texas House Bill 1188

This bill limits the liability of employers, general contractors, premise owners and third parties for hiring employees with criminal convictions. It was introduced in February of this year, and it will take effect on September 1, 2013.
HB 1188 states that no legal action can be taken against an employer who negligently hires an employee with a criminal record. Now before you consider calling off background checks to cut your costs, be aware that there are many exceptions to this bill.

Exceptions-

An employer may be sued for negligently hiring an employee:

I. who has committed a criminal offense while performing duties similar to those expected to be performed in the course of employment

II. who has committed an criminal offense under conditions similar to those expected to be encountered in the course of employment

III. who has committed murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and/or aggravated robbery

Even with this law in place, you may still find yourself answering for the actions of your employees. Continuing to screen your applicants will protect your company and its reputation, as well as save you from a legal nightmare. The cost of a law suit is much more than the cost of a criminal background check, so don’t put your company at risk.

Click here for House Bill 1188 in its entirety.

Richmond, CA Takes "Ban-the-Box" A Step Further

Richmond, California added Chapter 2.65 to the Municipal Code entitled “Ban the Box” on July 30, 2013. Unlike other cities, Richmond is requiring that no employer can make inquiries into past criminal convictions at any point during the hiring process. While it does not prevent employers from doing background checks, it does prevent them from using criminal records to exclude ex-cons from their list of prospective employees

Below is a map of all the states who have adopted “Ban the Box” in some way.



Unlike, Richmond, CA, the laws in other cities mainly ban the inclusion of the checkbox for past convictions on the job application exclusively. Employers are not restricted from asking potential employees about their criminal background during the interview process.  Richmond, a city inundated with high crime and high unemployment, has taken this law a step further. Employers must refrain from discriminating against people with criminal records.

There are some exclusions from the new ordinance, of course. Jobs with children, seniors, and other “sensitive” jobs are special cases that are not included in the ordinance.

Richmond City Councilwoman, Jovanka Beckles, believes that it levels the playing field for all races. Beckles was one of the six people who approved the ordinance in a 6-1 vote in favor of the law. Those who voted in favor of the law believe that it gives ex-convicts a fair chance to have a place in our workforce, instead of turning back to crime.

The lone councilman opposed to the ordinance, Tom Butt, told a local newspaper, “It will be a nightmare to enforce and will discourage business and investment in Richmond.”

You can read city ordinance 14-13 N.S. here.


Thoughts? Good? Bad? Will this become a trend in places with high crime and unemployment?