Background Screening Under Fire by The EEOC and Others

Over the last several years as employment screening has become the norm, various government agencies and others have been critical of the process.  Their reasons differ but the debate is the same, in its most simple form many that are critical simply don’t understand exactly what we do as an industry.  Many of the critics have used the same argument over the years.

  • Employers use credit scores to eliminate applicants with bad credit.
  • Any criminal record will ban you from employment anywhere.
  • Employers are intentionally creating a second class of unemployable citizens who have criminal records.
  • Having an employer run your credit will ruin your credit.

These are all false assumptions.  Pre Employment Credit Reports do NOT contain a credit score, in fact, many things that appear on a consumer credit report do NOT appear on an Employment Credit Report, such as account numbers and other information not relevant to employment. In addition, pulling these reports count as a soft inquiry, thus not affecting the overall credit score.  Under federal and many state laws, these negative things should only be used if within the scope and responsibilities of the job.  In our experience, less than 10% of employers even utilize these types of reports.

Now let’s discuss criminal records.  Like credit, simply having a criminal record would not bar one from employment everywhere.  Under Federal and many State laws the nature of the offense and conviction should be recognized and compared to the job responsibilities.  It is very important to remember, companies spend a lot of money finding and recruiting good talent.   The intent of the company is to hire the individual, not find ways to exclude them.  If the company feels the offense or conviction will be a risk to them based on the position, they may chose to look elsewhere.

As screeners, we believe there is a job for everyone.  However, there are times when because of someone’s past, they may not be the best fit for the job they are seeking.  A candidate with no job relatedness convictions and solid background and qualifications just might have the edge for certain positions; there is no mistaking this reality.  It is simply an employer’s right to choose what is best for their organization and mitigate their risk as much as possible. Organizations are simply damned if they do and damned if they don’t.  When a company decides to take a risk on someone they are then vulnerable to a Negligent Hiring lawsuit.  In a nutshell, employers are getting sued of they failed to properly screen an applicant.  If they could have known, they should have known.  If they don’t take the risk they are vulnerable to other types of suits and penalties such as violations of the EEOC.  The only fair thing to both parties is to at least allow the company knows what type of risk they may be encountering.

A recent article on the Huffington Post really takes aim at the employment screening industry and employers.  The writer mentions a recent report by the National Employment Law Project (NELP).  They cover many of the misconceptions outlined above but also falls short in many areas.  What the report fails to mention is the over 50% of applicants who simply lie and misrepresent things on their resume.  In a recent study conducted by EmployeeScreenIQ over 56% of people lie on their applications.  These include individuals with fake degrees from known diploma mills, false salary histories, misrepresenting degrees altogether and jobs they actually never had.

For critics of the process I offer two recent stories:

Mark E. Lawlor bludgeoned a women, Genevieve Orange, 29, to death with a hammer, and then raped her as she lay dying.  The photos of her body were too gruesome to be shown in the courtroom.  Her assailant was a leasing agent in her building and used his passkey to enter her apartment as she slept on her couch.  He bashed her in the head 30 times with a hammer, and 17 more times on her arms and body, an autopsy showed, then sexually assaulted her and left behind DNA that implicated him.  What was in his background? While on probation in New Jersey for an earlier crime “Lawlor moved to southern Virginia. But at 18, he drunkenly stole a truck, rolled it over and killed a friend. He went to prison for the first time. . . In 1998, while Lawlor was living in Northern Virginia, he began stalking an ex-fiancée in Great Falls. One night, he snatched her from her car by smashing her windshield and swiping the keys. He did another five-year prison stretch.”

More recently in New York a casino bus driver crashed on a NY highway killing 15 people.  This individual had a history of driving without a license and other vehicular offenses and served nearly seven years for manslaughter and grand larceny.  His two criminal convictions: for stabbing a man to death and stealing from the Police Athletic League. Williams shouldn’t even have been at the wheel – his driving privileges were suspended after he ignored tickets for speeding and driving without a license in 1995, The Associated Press reported. Now to be fair, we don’t know if the driver did anything illegal to cause the crash, but with the aforementioned convictions (especially the driving offenses), what was this person doing driving a tour bus?  This company failed to run a proper background check, they have learned the hard way.  In addition to these 15 innocent people being killed, the victims families are already filing multi million dollar suits against the company.

These cases may be extreme but we come across these things regularly.  I am curious to hear what you think?

Accredibase Releases New Trends in Credential Abuse

Our partner in the UK, Verifile has released their second annual Accredibase™ report into diploma and accreditation mill activity has revealed an astounding 48% increase worldwide in the number of known diploma and accreditation mills in the last year. As the Internet is the primary home for these bogus education and accreditation providers, little action is taken to stop them from helping unscrupulous candidates deceive unsuspecting employers.

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FCRA and Background Screening Expert Pamela Devata on Fox and Friends

This morning Pamela Devata of Seyfarth Shaw discussed employment credit reports in response to a new Maryland Bill being introduced.  The bill would limit the use of employment credit reports to those employers who are required to receive it.  Pam does a great job clearing up many of the misconceptions the public has on how these reports are used.  Specifically she points out that employment credit reports are only one facet of the entire background check.  Enjoy!

Flexible Workplaces Require Responsible Employees

The idea of the flexible workplace has been prevalent in our country for the last several years.  Why should a national or multi-national corporation pay for an office, when their employees can be just as effective or sometime even more effective from home?  Plus, many employees like to work outside of the traditional 9 to 5 hours.

Of course, with this flexibility comes the opportunity for abuse.  When hiring, employers need to make sure that the candidates they hire can handle this responsibility.  And of course, an effective background check can help.  Their are a number of tools employers can use to assess personal responsibility such as criminal records, motor vehicle records, employment references and even credit reports.

The reference interview is obvious.  Simply ask questions that focus on the candidate’s ability to work independently and whether they exhibited personal responsibility while on the job.  You would also think that using criminal records, motor vehicle records and yes, credit reports are fairly obvious. And on their face, they are.  However, rightfully so, many organizations will hire people with criminal records.  Perhaps, they don’t care about a minor possession charge or public drunkeness conviction.  However, a history of ticky tac violations definitley speaks to self control and personal responsibility.  Same goes for driving records.  An individual violation or two might not be of concern.  A history of violations could be pause for concern, even if the person is not going to be driving their car for work.  Again, it goes to personal responsibility.

I’ll stay away from the can of worms that no doubt would follow with my explanation on how credit reports can help.  I’ll just say that adverse credit combined with any of the above adverse information can certainly help you round out a body of work.

This concept of the flexible workspace is a great development for both employers and employees.  Employers just need to make sure that their employees are capable of succeeding in this environment.

Who Needs Background Checks with Applicants Like These?

CareerBuilder came out with their 2nd annual list of the craziest things hiring managers have heard from applicants during interviews.  More politically correct than my title, the list is referred to as Interviewees Say the Darndest Things.  Here are some of my favorites. You just can’t make this stuff up.

1. “I remember interviewing a secretary some years ago and asking her, ‘What is important to you in a job?’ Her answer was: ‘I want to work close to Bloomingdales.'”

2. “Without a doubt, the craziest thing I ever heard came from a candidate for an entry-level management position. He looked perfect on paper, so we scheduled a phone interview for 3 p.m. He answered the phone and when I introduced myself he said, ‘Hold on, I’m at a bar. Let me finish this shot and go outside.’ Amidst the noise of an active game of pool and a rowdy bar crowd, he slipped outside and told me, ‘You know what? I’m a little drunker than I thought. Can we reschedule?’ Needless to say, we did not.”

3. “We performed mock interviews where our clients were put in an interview session using their real backgrounds, interests, etc. When asked why the client left her last job, which was in a family buffet-style restaurant, her response was, ‘I was hungry and didn’t know it would be a problem so I had pizza delivered to the restaurant while was on the clock.'”

4. “I interviewed a senior engineer for one of our open positions. He demanded coffee and proceeded to spill coffee in his lap. Then he pointed to his groin area, laughed and said, ‘It looks like I wet myself!’ Needless to say, he didn’t get the job.”

5. “We always include a casual lunch or dinner portion during an interview to continue our discussions in a more informal manner. This candidate let their guard down, falling out of their ‘interview mode,’ during the friendly and casual meal-time discussions. They went so far as to share that they installed an illegal second network in their office with co-workers and would spend their afternoons gaming on the clock. They then went on to further share how regularly in the mornings and afternoons they would sleep at their desk during working hours. Bragging that they had never once been caught in either of these acts. Needless to say, this candidate was not hired.

6. “I was interviewing an older woman for a position in my company. I thought she had a great personality and was considering hiring her. Then at the end of the interview she asked if I would be able to give her a ride to work and then back home again everyday! Umm, no.”

7. “One job candidate arrived late for the interview, in a not-so-gracious mood. ‘The commute is terrible,’ she said. ‘I’m so glad I don’t have to do this every day.'”

I know this is going to sound contrary to usual mantra, but with candidates like these, who needs background checks?

Check out the full list

Second Annual EmployeeScreenIQ Survey to Measure Trends in Background Screening

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Want to win an iPad2?  Please take a moment to fill out our 2nd Annual Background Screening Trends survey.

Human resources professionals, hiring managers, recruiters and industry experts are invited to voice their opinions about these and additional issues. Participants will be entered into a prize drawing for an Apple iPad2; all respondents will receive an executive summary of the survey results when they become available in late April.

The brief survey takes six to eight minutes to complete and can be taken by visiting: http://hrmarketer.qualtrics.com/SE/?SID=SV_1XtatQd9kdwkC44

“We received a tremendous response to our first survey and the resulting report received attention from Human Resource Executive, TLNT.com, Talent Management and other industry press,” said Nick Fishman, chief marketing officer of EmployeeScreenIQ. “So this year we’re digging deeper, asking about legislation, credit checks, automated hiring matrices, social networking, and other hot topics. The world of background checks is constantly changing and we look forward to sharing the experiences and insights of HR professionals across North America.”

Get it now!

Ignoring FCRA Background Check Guidelines Can Be Costly

We all know that if an employer intends to conduct a background check through a Consumer Reporting Agency (employment screening company), that they must obtain an applicant’s written consent to do so.  Further, we know that if an employer decides to take adverse action against a job candidate or employee based on the outcome of a background check, they must provide them with proper adverse action notification.  Isn’t that background screening 101?

Evidently, no one told that to a school bus transportation company who has just settled a $5.9 million class action suit for failing to provide the requisite disclosures to applicants before running a background check on them and also failed to follow the required two-step adverse action process when they denied employment based on information revealed on a criminal background check.

Seyfarth Shaw FCRA attorney Pam Devata just posted a complete write up on the case.  See excepts below.

Under the Fair Credit Reporting Act (“FCRA”), an employer has a number of detailed requirements with which it must comply both before it can procure a background report (consumer report) about an applicant or employee, and if it intends to take action in whole or in part based on information in a consumer report. See 15 U.S.C. Sec. 1681 et seq. Specifically, an employer must: (i) have a permissible purpose for procuring a report in the first place; (ii) certify to the background screening company that it will comply with applicable law and will not use any information in violation of Equal Employment Opportunity laws or regulations; (iii) provide a written disclosure to the applicant or employee indicating that specific background checks will be conducted by a third party and obtain authorization from that applicant or employee to conduct such checks; and (iv) follow the detailed two-step adverse action requirements (including providing a copy of the report, a Summary of Rights, and a pre-adverse action notification letting a person know he or she could dispute inaccuracies in the report).

The Court in Hunter, et al v. First Transit,, Inc., Case Nos. 09-CV-6178 & 10-CV-7002 (N.D. Ill. Mar. 23, 2011), granted preliminary approval of the settlement for more than 143,000 class members. The Court has scheduled a final fairness hearing for August 1, 2011.

And here’s Pam’s big advice for all employers out there who conduct background checks

It behooves employers to view these cases as an impetus to evaluate their current policies and procedures relating to the use of background checks in employment and seek legal guidance to ensure compliance with the FCRA and similar state laws.

Clear Background Check in Florida Could Still Result in Lawsuit

We are closely following a proposed bill in the state of Florida which would remove certain protections the state’s employers currently receive against negligent hiring suits in the event that they conduct an employment background check.

Florida House Bill 449 “Jim King Keep Florida Working Act” would remove a provision in Fla. Stat. § 768.096 (Employer presumption against negligent hiring) which was enacted as part of the 1999 Florida Tort Reform Act.

According to one legal expert I have spoken with, “The statute provides that in a civil action for death or injury caused by an employee’s intentional tort, the employer is presumed not to be negligent in hiring the employee if he engaged in one or more pre-employment background investigation steps that did not ‘reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.’”

The state’s website introduces this bill as follows:

“Criminal Justice; Designates act “Jim King Keep Florida Working Act”; requires state agencies & regulatory boards to identify & evaluate restrictions on licensing & employment for ex-offenders; prohibits state agencies from denying certain applications based on person’s lack of civil rights; provides exception; requires employer to review results of criminal background investigation & not place employee with criminal record where conduct similar to past criminal conduct would be facilitated, etc.”

This bill should be of significant concern to employers in the state of Florida.  It basically means that even if you performed a comprehensive background check which did not indicate any adverse information, you can still be held accountable for negligent hiring.  Does that make any sense?  I suppose state lawmakers would prefer that employers look into a crystal ball to predict the future.

Read full version of Florida HB 449