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. 

Knowing the Difference between Form I-9 and E-Verify

Employers often use E-Verify and Form I-9 interchangeably. But the truth is, while they are related, they are very different processes.

Form I-9, from the U.S. Citizenship and Immigration Service (USCIS), is the core of E-Verify.  It is used by an employer to verify an employee’s identity and eligibility for employment in the United States. E-Verify is not to be mistaken as an electronic version of Form I-9.  E-Verify is an internet-based system that compares information from the Form I-9 to government records to confirm that an employee is authorized to work in the United States.

Although E-Verify uses information from Form I-9, there are some important differences between Form I-9 and E-Verify requirements:

Form I-9	E-Verify
Is mandatory	Is voluntary for most businesses
Does not require a Social Security number	Requires a Social Security number
Does not require a photo on identity documents (List B)	Requires a photo on identity documents (List B)
Must be used to re-verify expired employment authorization	MAY NOT be used to re-verify expired employment authorization

Therefore, E-Verify cannot be used to replace Form I-9. E-Verify is used in conjunction with Form I-9 to help employers confirm that an employee is authorized to work in the U.S.

Why would an employer utilize E-Verify?

1.     It may be a requirement if the employer is a federal contractor or conducts business in a state that requires it.

2.     Participation makes it possible to hire some foreign students doing extended Optional Practical Training in a STEM (Science, Technology, Engineering, or Math) profession.

3.     E-Verify creates a presumption of an employer’s good faith compliance in the event of an I-9 audit.

4.     Many employers, especially those with large payrolls and multiple offices throughout the country, like the ease of using E-Verify and the security it provides in ensuring a legal workforce, especially when used in conjunction with an electronic I-9 system.

 Which states require employers to use E-Verify?

 There are currently 20 states that require the use of E-Verify to some extent. Click here to see which states require E-Verify and in what capacity. 

"What's the Hold Up?" — 5 Reasons For Delays and How To Overcome Them

     Delays in the hiring process can be frustrating. Filling a job position, in most cases, is very time-sensitive. The last thing you want to hear is that the background check is holding up the entire process. So in order to keep you from pulling out your hair, we have compiled a list of some of the most common delays and why these delays happen. We have even provided some tips to combat delays in your screening program.

1.   Inaccurate Personal Information

Errors when inputting important identifiers, such as the name or date of birth of the applicant, can mess up the background check. Nothing will delay the process more than having to redo the search, starting with re-entry of personal identifiers. Failure to use accurate information will require that you reach back out to the applicant to make corrections. This is a sure way to bring your process to a screeching halt. Errors made in entry on I9’s or EVerify orders cannot be fixed by S2Verify, requires a cancellation of the search, by law, and re-entry by the client.

2.    Additional Information Required

The background check may be at a standstill if you have not uploaded necessary documentation. Depending on the requirements of the background check, it could be anything from a driver’s license to a consent form. First and foremost, make sure you are doing everything that you can on your end to complete the background check and get the applicant on the job.

3.     Adjudication at the Local Level

Simply running an applicant through the national criminal database does not constitute a comprehensive background check. The information can be inaccurate based upon time lapse or out-of-date. Due diligence requires verification of any records found in the national criminal database at the local level (i.e. county or state courts). Also, not every court system has records online. This results in manual court record retrieval, which can take some time. Adjudication at the county level is best practices and a necessary procedure to deliver accurate, current data.

4.      Failure to Reach Sources for Education or Employment Verification

Trying to get a hold of someone from the appropriate school or company can prove difficult at times. For example, getting proof of an applicant’s high school diploma can be a struggle during the summer months. Verification can be one of the biggest obstacles preventing the timely completion of an applicant’s background check.

5.     Court Closings

Factors such as holidays and harsh weather conditions can result in local courts closing for a period of time. Background checks that are awaiting information from one of these courts are stuck in limbo until the courts re-open. Currently, not every court offers online access to records. Unfortunately, this is a delay that cannot be avoided.

What can I do to overcome these delays?

Set-backs, such as court closings and the adjudication of records, cannot be avoided. Until every court provides access to records online, weather and holidays will continue to be a problem. This is a reality, regardless of the provider you choose for your background checks. There are a few things, however, that you can do to ensure the greatest result in terms of turnaround time:

1.     Double check to make sure the information inputted is correct before you submit it for a background check. Two transposed digits can mean the difference between an erroneous and an accurate background check.

2.     Make sure that the background check is not pending the upload of documentation on your end. Certain searches require additional information, such as a driver’s license or consent form.

3.      Ensure that your provider is doing everything they can to verify past employment and education. Ask them what their procedure is. Do they use a database? Do they outsource the work? How often are they reaching out to employers/schools? If they are not calling sources frequently enough, they will not be able to verify employment/education. Hold your provider accountable.  

The State of Oregon Has Banned the Box

House Bill 3025 was signed on June 25^th, making Oregon the 18^th state to ban the box. Ban the Box legislation originally referred to removing the check-box on an application that required applicants to indicate if they have a history of criminal convictions. Most of the new bills referred to as ban the box legislation have stipulations beyond the exclusion of a check-box on the application.

HB 3025, continuing the trend sweeping the United States, goes a step further by prohibiting employers from demanding the disclosure of criminal convictions prior to an initial interview. The bill applies to all employers in Oregon outside of a few exceptions and will take effect in January 2016. Exceptions include employers that are a part of the criminal justice system, law enforcement agencies, and employers seeking non-employee volunteers.

You can view the bill in its entirety here.

For an up-to-date look at ban the box legislation and how it will affect your business, go to NELP.org

Nevada Eliminates Restriction on Reporting Convictions Over Seven Years Old

On Tuesday, June 9^th, Governor Brian Sandoval signed Senate Bill 409. Prior to this bill, Nevada employers were barred from using convictions over 7 years old in the consideration of a job applicant. This bill, effective immediately, means background screening companies are no longer limited to reporting convictions less than seven years old in Nevada.

SB 409 also allows Nevada employers the use of more extensive background checks, stating “Existing federal law provides certain exceptions to the preceding federal prohibition, including an exception for a credit report prepared in connection with the employment of an individual whose salary will be greater than $75,000. A similar exception in state law exists for a credit report prepared for a gaming licensee in connection with a person who is seeking employment with the licensee or employment in a position connected directly with the licensee’s operations.”

While SB 409 allows you to conduct criminal background checks that include criminal history older than seven years, be mindful of the Equal Employment Opportunity Commission’s (EEOC) guidance on background screening. The EEOC suggests that employers consider the time that has passed since the offense.

S.B. 409 can be read in its entirety here.

Electronic I-9 Beta

Managing the completion and storage of Form I-9 can be one of the most labor intensive parts of the on-boarding process. We are happy to announce that we are offering a solution to turn your manual, paper-based procedure into a digital, user-friendly process. We are currently allowing clients to participate in our Electronic I-9 Beta while we fine-tune the solution to better suit your needs.

The Electronic I-9 management system fulfills all U.S. Citizenship and Immigration Services (USCIS) obligations. The digital I-9 form helps to eliminate errors for accurate completion. The form is sent by email and filled out by the employee. The employer will fill out their portion of the form and it will be automatically be stored. An option to include E-Verify is available. Tracking/auditing the entire process will be much easier when you switch to our digital option. 

Advantages include:

·         Improved accuracy when filling out Form I-9

·         Easy to audit

·         Paperless storage all in one place

·         Integrated background screening and on-boarding

·         Notification of I-9 expiration

Contact your account manager today to get additional information about our Electronic I-9 Solution, pricing, and how to join the Beta!

Not an S2Verify client? Contact us at 1 855 671 1933 to get started today!

NYC Passes Bill Banning Credit Checks in Hiring Process

Pending Mayor DeBlasio signing the bill (Int.0261-2014) into law, New York City will join a growing a list of U.S. localities eliminating credit checks from the background screening process. The New York City Council passed the bill last Thursday April 16, 2015 by a vote of 47-3. Ten states (CA, MD, CT, HI, IL, WA, OR, VT, CO, NV) and two cities (Chicago, IL and Madison, WI) set precedent for NYC’s latest legislature.

One’s credit history, according to the bill, consists of:

• Prior bankruptcies, judgments, or liens

• Number or credit accounts

• Late or missed payments

• Charged-off debts

• Items in collection

• Credit limit

• Prior credit report inquiries

• Items in collections

This bill, an amendment to the NYC Human Rights Law, would make it an unlawful discriminatory practice for an employer to use an individual’s consumer credit history in making employment decisions. Due to the sensitive nature of various employment positions that require additional layers of security, the bill would provide exceptions to several positions.

Exemptions from the credit check ban include:

• An employer, or agent thereof, that is required by state or federal law or regulations or by a self-regulatory organization as defined in section 3(a)(26) of the securitiesexchange act of 1934

• Police officers or any position with a law enforcement or investigative function

• A position in which an employee is required to be bonded under City, state, or federal law

• A position that requires security clearance under federal or state law

• A non-clerical position having regular access to trade secrets, intelligence information, or national security information

• A position having signatory authority over third party funds or assets valued at $10,000 or more

• A position that involves fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer

• A position with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases

New York City employers will need to pay close attention as this unfolds. Should this bill become law, modification of employers’ background screening policies will be necessary.

Re-screening Your Employees

You have just extended a conditional offer to a job candidate to fill that vacant position at your company. The conditional offer is contingent upon the results of his/her background check. You follow FCRA guidelines through the entire hiring/screening process. The background check is completed, and you see that the candidate has no criminal record. Your job is done now, right? The new hire has been deemed safe and his qualifications acceptable. So you won’t ever need to screen him/her again, right? WRONG.

There are many reasons to re-screen your employees:

•          Employees in safety-sensitive positions
•          Employee have contact with customers
•          Employees work with children/elderly
•          A change in employee responsibilities
•          A promotion gives an employee access to assets or sensitive employee info

Safety-Sensitive Positions

Re-screening is important in some of the high risk positions, such as transportation or any job requiring the operation of heavy machinery. In the transportation industry, keeping track of one’s driving record is essential. You don’t want a reckless or drunk driver operating a vehicle for your company. The operating of any heavy machinery can be dangerous. For the safety of themselves, fellow employees, and others, we recommend routine drug screening, another party of the screening process.

Contact with Customers

When your employees work directly with customers, you have an obligation to regularly screen your employees. This is especially important when they work inside customers’ homes. While a red flag may not have been spotted in the pre-employment background check, criminal activity may occur during the employment of an individual. A current look at an employee’s criminal history can help ensure the safety of your customers.

Work with Children/Elderly

Children and the elderly are particularly vulnerable. As an organization that deals with either demographic, it is your duty to make sure you are not putting them at risk. You have a duty to your customers to ensure that they are not exposed to someone who is a sex offender or has a history of violence. An up-to-date look at the criminal history of those who work with them is one way of protecting this defenseless group.

Change in Employee Responsibilities

Whether a lateral or vertical move is made by an employee, there will be changes in responsibilities. And since your background check should be based upon the responsibilities of the job, you may need to run a different or more thorough search on the employee.

Access to Assets or Sensitive Employee Info

A promotion typically means more access to capital, other assets, or sensitive employee information. Because of this, employers may want to initiate a more involved background check. For example, work with the company’s finances may warrant a credit check. When the employee was hired, his background check may have consisted of only a national criminal search. This search casts a wide net, but is not as reliable as screening at the local level. Therefore, it would be prudent to order a county criminal search for a more up-to-date look at the employee’s criminal history.

A recent survey determined that only about 30% of employers have an active program for re-screening their employees. That is an alarming number. If you want to protect your company, your employees, and your customer base, it is imperative that you consider re-screening your workforce.

If you are not sure where to begin with your company’s re-screening policy, start by identifying the jobs that require re-screening. You can do this by considering the following questions:

•          What are the responsibilities of the position?
•          How much access will the employee have to assets and/or customers?
•          Is the position high-risk?

Once you have identified the situations that require re-screening, craft a written policy to handle decisions, such as grounds for termination based on the background check, and any possible disagreements that may follow.

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/