EmployeeScreenIQ Weekly Wrap Up: April 26, 2013

It’s been a couple weeks since our last Weekly Wrap Up and if you haven’t stopped by in awhile, our blog has been exploding with news this week. With that, it’s essential that you check out this week’s wrap up for a brief summary. Since our first Quick Takes video was released, we posted a blog with additional information on the issue at hand, ban the box. In addition, we released the April issue of By The Way, our monthly compliance resource, with articles by our VP of Compliance & General Counsel, Angela Preston. Our headline story for this issue, Modern Day Blacklisting? Retail Databases Under Scrutiny discusses retailers use of databases to find information on internal workplace theft-and the downfalls of this practice. Check out additional articles here. We also posted a roundtable video, Is the Media’s Portrayal of our Industry Fair?: Accuracy in Background Checks, focusing on the recent assessment of the background screening industry in the news and media. For additional posts, visit our blog page.

 

Why is a Little Check Box a Huge Controversy for Employers?employment background checks

Ban the box is just a catchy way of saying that various states, municipalities and the Equal Employment Opportunity Commission (EEOC) wants to eliminate the option on a job application where employers ask if the candidate has ever been convicted of a crime. An ongoing debate for a while, we decided it would be a great topic to discuss in the first video release in our Quick Takes Series. Read More

 

 

 

BTW-Are Retail Databases Blacklisting Employees?employment background check compliance

Our April issue of BTW focuses on the recent discovery that retailers have been using a database with information on internal employee theft. As Angela explains, not all of the information in the database is accurate and can potentially hurt employees, as this database should not be a replacement for an employment background check. Find out why these databases are ineffective in Angela’s post, Modern Day Blacklisting? Retail Databases Under Scrutiny. Read More

 

 

employee background checks in the newsIs the Media’s Portrayal of our Industry Fair?: Accuracy in Background Checks

In recent months, one trending topic has been the accuracy of background checks, as portrayed by the media. One of our panelists, Jason Morris, president of ESIQ, poses the question, “Are the recent assessments of our industry by the media fair?” Our panelists had much to say on this issue, so I will highlight a few points. Read More

 

BTW-Are Retail Databases Blacklisting Employees?

criminal record background checks retail databases

For those of you interested in keeping up with the latest in pre-employment background screening compliance and the laws that affect your use of employee background checks, check out our latest publication, BTW: Your Guide to Staying Out of Hot Water.” This compliance resource has been crafted by our VP of Compliance and General Counsel, Angela Preston and is a must-read for human resources and security professionals.

Our April issue of BTW focuses on the recent discovery that retailers have been using a database with information on internal employee theft. As Angela explains, not all of the information in the database is accurate and can potentially hurt employees, as this database should not be a replacement for an employment background check. Find out why these databases are ineffective in Angela’s post, Modern Day Blacklisting? Retail Databases Under Scrutiny. Our second story features information on the national criminal database and how it relates to employment background screening. Lastly, Angela shared her thoughts from a recent visit to Washington D.C. for the 2013 National Association of Professional Background Screeners (NAPBS) Mid-Year Legislative Conference.

Access full stories here.

Hear Angela’s thoughts on this issue of By The Way:

 

Do Employers Care About EEOC Guidance on Criminal Background Checks?

Social Media Employment Background Check

Last month, we released our official 2013 Employment Background Check Trends Survey report.  The report includes findings from nearly 1,000 Human Resources professionals in various industries across the United States, who responded to our survey on background checks for employment at the end of 2012 and the beginning of 2013.

Anyone who has followed this blog knows that we’ve dedicated a lot of time over the last 12 months discussing the Equal Employment Opportunity Commission’s new guidance to employers on the use of criminal background checks.  So, as the one year anniversary of this legislation (I mean guidance:)) is upon us, I thought we could review how our survey respondents characterized their knowledge of the guidance and how their companies have responded.

The new EEOC guidance on criminal background checks (released April 2012) has caused my organization to:

EEOC Guidance on Criminal Background Checks

April 2012 EEOC Guidance

 

 

 

 

 

 

 

Of the nearly 70% of respondents who said that their organizations have reviewed the EEOC guidance on criminal background checks, slightly more than half of them have not made changes to their pre-employment background screening policies based on that guidance, while slightly less than half have made changes. More noteworthy, however, is the 32% of respondents who either aren’t familiar with or haven’t reviewed the EEOC’s guidance.

Last week, I was fortunate enough to hear the one EEOC commissioner who dissented from the guidance, Constance Barker, speak about what what we’ve learned about the new guidance over the past year.  My colleague Angela Preston, wrote the following about Commissioner Barker’s remarks:

A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory.  As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.

 But it’s only guidance, right? The EEOC, by design, does not have authority to write rules or regulations.  But as Barker pointed out, until a court says it will not apply the guidance, the guidance has the effect of a regulation. And once a court is persuaded by and cites to the guidance, it becomes law. We knew it would take some time for the guidance to be addressed by the courts, and we are still waiting for pending litigation to shed some light on the effect of the guidance.

We would strongly encourage employers to familiarize themselves with the new guidance and evaluate their organizations’ policies and practices.

 

Download Complete Survey

 

EEOC Checkup: Where Things Stand

EEOC criminal background check

Nick, Jason and I were in Washington DC last week, just in time for some summer weather and a chance to see the last of the cherry blossoms. We were attending the National Association of Professional Background Screeners (NAPBS) Mid-Year 2013 Legislative Conference, a gathering of about 350 companies and clients taking our message about background checks to the Hill.  We had the opportunity to hear from Equal Opportunity Employment Commissioner Constance Barker, the only Commissioner who voted no on last’s year’s EEOC guidance on the use of criminal background checks in employment.

Barker had warned last April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.”

A year has passed, and little has changed. Barker made it clear that the EEOC is still very committed to increased enforcement, and will continue to pursue “systemic” cases, where a pattern or practice has a broad impact on a large population though disparate impact theory.  As she put it, the EEOC criminal guidance starts with the premise that, if you are conducting criminal background checks, there is presumption that you are discriminating. Until this premise has been successfully challenged in court, employers need to be prepared to defend class action suits.    

Continue reading EEOC Checkup: Where Things Stand

National Background Checks: What’s in a Database?

Employment Background Checks National Criminal Database

The debate about national background checks has been in the headlines every day since the tragic shooting at Sandy Hook Elementary School. The focus has been on background checks for gun purchases, but some of the same points that have been made in the context of guns carry over into our world—employment screening.  One of the biggest hiring concerns for any employer is an applicant’s criminal history, thus almost every background check includes a criminal component.  The most frequent questions we field from both clients and the public have to do with “national” background checks and criminal databases. Why is this topic so confusing? Well, it’s complicated.

The National Association of Background Screeners (NAPBS) recently published a paper to shine some light on the subject. The bottom line is this: there is no single source for a national criminal check. The FBI database is incomplete. For a record to be located and housed with the FBI’s Interstate Identification System (also known as “III”) it must have a fingerprint associated with it. But unfortunately, fingerprints aren’t associated with all criminal records indexed at county or state repositories. To complicate matters, while all states currently participate in submitting some records to the III, criminal record reporting is extremely irregular across counties and states. We know that not all state criminal records or fingerprints meet the FBI’s standards for inclusion in the III, and not all state records are submitted to the FBI.

To make matters worse, even if records are included, they might not tell the true story. In a June 2006 report from the Attorney General, titled “The Attorney General’s Report on Criminal History Background Checks,” it was noted that only 50 percent of III arrest records contained final dispositions. And with any database, no matter how aggressively updated, there are inherent lags in updates. According to data from the 2005 study, “A Review and Evaluation of the NCIC,” the average number of days for repositories to receive and process information: Arrest Information = 24 days, Court Disposition = 46 days, Prison Admission = 31 Days.

We recommend that national criminal databases—whether derived from private or public sources, be verified at the source.  A combined approach allows for the broadest breadth of sources without compromising accuracy.

Don’t just take my word for it. Here is what other major news outlets are reporting on national background checks:

The Wall Street Journal

“The National Instant Criminal Background Check System…doesn’t include millions of people legally barred from owning guns, researchers and advocates say. Fourteen states list fewer than five people flagged for mental-health issues. Researchers also found major gaps in filing records of known drug offenders, who are temporarily prohibited from buying firearms.”

“Many states are still failing to do the bare minimum,” said Mark Glaze, director of Mayors Against Illegal Guns, which studied the matter in a 2011 report. “We know they have hundreds of thousands of records sitting in state agencies.”

(Source: “Spotty Records Weaken Background Checks” reported online January 15, 2013)

The Huffington Post

“The database is incomplete because many states have not provided federal authorities with comprehensive records of people involuntarily committed or otherwise ruled mentally ill. Records are also spotty for several other categories of prohibited buyers, including those who have tested positive for illegal drugs or have a history of domestic violence.”

“Despite improvements in recent years, state governments are failing to submit records to the Federal Bureau of Investigations of people with mental illnesses who have been institutionalized or otherwise deemed by authorities to be dangerous to themselves or others, The New York Times reported Friday. The Times cited a 2011 study by Mayors Against Illegal Guns, a coalition of more than 700 city officials that is co-chaired by New York Mayor Michael Bloomberg (I), an outspoken proponent of stricter gun control laws.”

(Source: “FBI Gun Background Check Database Missing Millions of Records on Mentally Ill” reported online December 21, 2012)

The New York Times

“The database is incomplete because many states have not provided federal authorities with comprehensive records of people involuntarily committed or otherwise ruled mentally ill. Records are also spotty for several other categories of prohibited buyers, including those who have tested positive for illegal drugs or have a history of domestic violence.”

(Source: “Gaps in F.B.I. Data Undercut Background Checks for Guns” published online December 20, 2012)

CNN

Universal background check: What does it mean?

“(H)uge gaps” exist in the database, which is called the National Instant Criminal Background Check System, or NICS.” Lindsay Nichols, an attorney with the Law Center to Prevent Gun Violence.

(Source: “’Universal Background Check:’ What Does it Mean?” reported online January 14, 2013 and updated January 28, 2013)

McClatchy

“President Barack Obama acknowledged problems with the system in January when he unveiled a series of legislative recommendations and executive actions to curb gun violence.

He instructed federal agencies to submit information, write regulations to lift legal barriers that prevent states from reporting data and increase incentives for states to share information.”

“But the reporting still lags. Besides the lack of mental health data from states and the federal government, 44 states had sent fewer than 10 drug abuse records each as of October 2011, the mayors’ report said. That’s even though a single failed drug test, drug-related arrest or drug use admission might disqualify a person from buying a gun. Only three federal agencies have submitted drug use information.”

(Source: “Gun Background-Check Database Missing Vital Information” reported online March 13, 2013)

Mason Globe Gazette

“The Federal Bureau of Investigation’s National Instant Criminal Background Check System (NICS) is only as good as the information fed into the system, according to local and state officials.”

“One of the issues it has faced, especially with today’s technology, is that it is just a data base and it is not a psychological or psychiatric assessment tool. And so a background check is only as good as the data that it houses.” said Ross Loder, bureau chief for the program services bureau of the Iowa Department of Public Safety.

“NICS may also be incomplete because some states do not enter all criminal convictions.”

(Source: Background Checks Reliable but Limited” reported online March 16, 2013)

Azfamily.com

“The Arizona Criminal Justice Commission released a nearly 90-page study Thursday that examined the state’s reporting system. A task force found inefficiencies and missing information from the database. As a result, a number of felons, domestic violence offenders and mentally ill may not have been entered in the FBI’s National Instant Criminal Background Check System used by gun dealers, as well as law enforcement and employers.”

Paper “disposition reports” filled out by the various law-enforcement agencies are submitted to the Department of Public Safety by mail. DPS then submits them to the state, which then submits them to the national database. However, the lag time could be days, weeks or months, according to the task force, which also found large amounts of missing information on criminal records. “Statewide, Arizona is missing disposition information on 33.6 percent of felony arrest counts and 25.1 percent of misdemeanor domestic violence arrest counts,” according to the report, titled ‘Arizona NICS Records Improvement Plan.’

(Source: “AZ Study Finds Serious Lapses in Criminal Background Check System” reported online March 22, 2013)

Thanks to NAPBS for source material in this post.








Accuracy in Employment Background Checks

As you might know, EmployeeScreenIQ released a new video series recently, entitled Quick Takes. Each monthly segment features a particular topic in the background screening industry. In addition to the series, we filmed footage of our panelists discussing the latest trends in the industry. We’re calling this additional footage our  “roundtable” videos, all of which are currently available by visiting our  EmployeeScreenIQ Video Library.

In recent months, one trending topic has been the accuracy of background checks, as portrayed by the media. One of our panelists, Jason Morris, president of ESIQ, poses the question, “Are the recent assessments of our industry by the media fair?” Our panelists had much to say on this issue, so I will highlight a few points.

Continue reading Accuracy in Employment Background Checks

Indiana Teacher Suspended for Employment Background Check

Accurate Employment Background Check

Imagine that you are diligently working at your job when you receive a letter from your employer telling you that you have been suspended due to a criminal record that was found on your employment background check.  That’s sucks, but if you are responsible for caring for children at a school, you kind of know that they take these things seriously.

But hold on a minute, you’ve never committed a crime in your life and the records that were reported belong to someone with the same last name.  Well, that can be irritating.  And then, you are forced to prove that those records don’t actually belong to you. That’s probably where your patience begins to wear thin.

Such is the case with a man named Richard Brown who worked in an Indianapolis-area public school as a part-time caregiver. Thankfully, he was about to solicit some help from someone at the Department of Child Services who contacted the state’s Department of Motor Vehicles (they looked at his license and realized he couldn’t have committed those crimes by matching his address).

Continue reading Indiana Teacher Suspended for Employment Background Check

Canada Pardoning Citizens with Criminal Records

Criminal Background Check Record Suspension

We often discuss the challenges of ex-felons going back to work and the problems they face when making this transition. From issues like ban the box to a company’s compliance in their use of criminal records in hiring decisions, there’s a never ending list of challenges that arise. One of these topics includes expunging criminal records, so that even if an employer conducts a background check, an applicant’s criminal record will not be found.

In Canada, a job candidate could simply submit an application and if accepted, their criminal record will be suspended. This action may allow those with a criminal history to find a job more quickly and will assist in making the hiring process much smoother. In Canada, they recently implemented legislation (in March of 2012) for this practice of record suspension, allowing ex-offenders a pardon for past crimes. According to Chris Heringer, a senior executive with Pardon Applications of Canada, a nationwide application firm, this is a great opportunity, particularly for those seeking employment:

“Employment seems to be one of the foremost reasons individuals decide to take this step…and it’s not just concern over finding a new job. Even those who are currently employed want to make sure their record does not come to light when opportunities for advancement are presented.”

For job candidates that made mistakes in the past and are ready to live a better lifestyle, this is a second chance. Without having to explain their past, the job search becomes hopeful as any previous record will no longer be available, even if a background check is done. According to the article, this pardon can also help “an individual’s ability to volunteer, further education, adopt a child, or even rent an apartment.”

Continue reading Canada Pardoning Citizens with Criminal Records

Internal Retail Theft Databases Under Scrutiny

Shrinkage is a funny word. In the retail world, it has nothing to do with your laundry. It’s just another way of referring to internal theft by employees–a huge concern for any retailer. And for good reason–workplace theft is costing retailers about $15 billion per year, according to the National Retail Federation. They estimate that 44% of missing merchandise is due to employee theft.  It’s not surprising that employers are taking the lead to protect themselves, at a time when margins are thin and the economic recovery is still slowly creeping along.

The New York Times recently reported on a little known source used by some retailers—an extensive database that keeps track of employees who have confessed to or have been accused of stealing from their employer. The database called out by the New York Times is unique. It is not used in a traditional employment background check—it is a proprietary tool called Esteem that is owned by a private company and was built by contributions from the retailers themselves. It does not contain information from the public record—its made up of self-reported incidents that are usually collected by a store’s loss prevention team. It does not replace a traditional employee background check, and most background screening companies do not have access to the database. Even if they could access it, I would guess that many companies would be reluctant to use it.

While I have not viewed an Esteem report, to the casual observer it sounds like something hatched from a Hollywood crime drama, where investigators type in a name, and up pops a photo with pages of information.  While that image is not realistic, it has more than a few consumers, attorneys, and advocacy groups concerned.The database on its face is legal, but the more I understand about how the information is gathered and then used, the more questions I have.

Modern Day Blacklisting? Retail Databases Under Scrutiny

Criminal Record Database

 

 

 

 

 

 

 

Shrinkage is a funny word. In the retail world, it has nothing to do with laundry. Rather, it’s another way of referring to internal employee theft, a huge concern for any retailer — and with good reason.  Workplace theft costs retailers about $15 billion per year according to the  National Retail Federation. They estimate that 44 percent of missing merchandise is due to employee theft. It’s not surprising that employers are taking the lead to protect themselves at a time when margins are thin and the economic recovery is still sluggish.

The New York Times recently reportedon a little known source used by some retailers—an extensive database that keeps track of employees who have confessed to or have been accused of stealing from their employers. The database called out by the New York Times is unique. It is not used in a traditional background check. It is a proprietary tool called Esteem that is owned by a private company and was built by contributions from the retailers themselves. It does not contain information from the public record; it is made up of self-reported incidents that are usually collected by a store’s loss prevention team. It does not replace a traditional employee background check, and most background screening companies do not have access to the database. Even if they could access it, I would guess that many companies would be reluctant to use it.

While I have not viewed an Esteem report, to the casual observer it sounds like something hatched from a Hollywood crime drama, where investigators type in a name, and up pops a photo with pages of information. While that image is not realistic, it has more than a few consumers, attorneys, and advocacy groups concerned. Continue reading Modern Day Blacklisting? Retail Databases Under Scrutiny