State of Texas vs. the EEOC: Is Timing Everything?

timinig is everything

The Equal Employment Opportunity Commission (EEOC) says that the state of Texas needs to work on its timing. The agency has filed a motion to dismiss in the lawsuit that Texas brought against the EEOC late last year, claiming that the state has no right to sue and that the timing of the claims are premature. For those of you just tuning in, the entire State of Texas sued the EEOC last November, slamming the agency’s guidance on the use of criminal background checks. The case further ignited the firestorm of controversy that has surrounded the EEOC’s guidance since it was first issued in April of 2012.

The Texas Lawsuit

The state of Texas is not alone in its objection to the guidance. The agency has been aggressively targeting employers for disparate impact discrimination, and it recently filed high profile class actions against BMW and Dollar General Stores citing the guidance. Employers and courts have been critical of the agencies’ tactics, which have basically been sue first and sort it out later. In July of last year, nine states’ Attorneys General sent a complaint letter to the EEOC, calling their tactics “misguided and a quintessential example of gross federal overreach.”

The Texas suit takes the EEOC to task for stepping on the state’s toes and creating direct conflict with Texas laws that mandate criminal background checks. Both state agencies and private employers in Texas are prohibited from hiring convicted felons or certain types of ex-offenders for certain jobs—namely, jobs that require high levels of security and public trust. The state says that the EEOC’s guidance is harmful and could endanger public safety:

“If state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league.”

The Motion to Dismiss

In its Motion to Dismiss, the EEOC says that Texas got it all wrong. The brief cites 47 cases and starts out with six pages of background information–a sweeping tutorial on the agency’s long standing disdain for the use of criminal background information and disparate impact theory.

When it finally gets to the argument, there are three main points. The first argument is that the guidance is only “guidance.” As such, it has no legal effect. This is one of the standard responses that we hear from the EEOC—a response that conveniently creates an endless loop of circular logic, deflecting criticism by denying that it has any real authority. The agency lacks authority to issue substantive rules, therefore it has no ability to bind the plaintiff to any legal obligation. Tell that to Dollar General and BMW.

The second argument follows along the same line of reasoning—the state has no standing to sue, because it has suffered no real injury. The EEOC is saying the Texas’ claims are speculative, and there is no actual harm. Similarly, the third argument is ripeness–there has been no final agency action, and thus the claims are not ripe for litigation.

What’s Next

Procedurally, the EEOC is trying to stop this case dead in its tracks. The idea behind a motion to dismiss is that the claims made by the plaintiff are so lacking in merit that no answer is needed. The strategy here is to get the judge to agree that there is no reason to bother drafting an answer. There is a strong presumption against granting this type of motion, but at this point, it’s all up to the judge. Stay tuned on this one—we’ll keep you posted.

Background Screening Survey: Final Appeal from This Ugly Guy

We’re getting ready to close out our 5th Annual Employment Background Screening Trends Survey and I wanted to make one last appeal to share your insights on some of the most talked-about issues shaping hiring practices and the background screening industry. It is important for all of us to show how we, as employers are using background checks in a responsible fashion and this survey is a great way for you to help the cause. Last year, nearly 1,000 HR pros just like you (and perhaps including you) responded to our survey. USA Today even featured the results! Don’t miss the opportunity to be heard and help make this our biggest research effort yet.

The survey will take just a few minutes of your time and your feedback will help inform your professional peers. You will also receive a free executive summary of the results for your participation and be entered to win one of two $250 American Express gift cards!

And if that’s not enough to convince you, watch the ugly guy in the video above.

Finding the Right Employees for Patient Care: Background Checks in Healthcare

Background Checks in Healthcare

With recent news coverage putting the spotlight on stricter background checks for senior caregivers and screening requirements (or lack thereof) for Obamacare navigators, the healthcare industry should be increasingly aware of the need for more comprehensive employment background checks.

Employers in the healthcare industry should be concerned about not only the safety of employees, but particularly the safety and wellbeing of the people they care for—the patients. Whether it’s a hospital, nursing home, or hospice, the healthcare industry is another industry in which employment background checks are more than just an asset—they are vital to protecting patients. EmployeeScreenIQ data shows that of those we screen in the healthcare industry, we find a 21% criminal hit rate, which is lower than our average hit rate of 28%, but this is obviously still a significant number of job candidates.

Continue reading Finding the Right Employees for Patient Care: Background Checks in Healthcare

Weight Loss Is Overrated: Resolve to Evaluate Your Background Screening Program in 2014

Let me officially be the last person to wish you a Happy New Year! I have to admit that I’m not a big fan of New Year’s resolutions.  Why should you wait until January 1st to do something you should have been doing when you recognized a problem? Case in point, my least favorite New Year’s resolution is for those that vow to work out more. From February 15th through December 31st, there’s never a problem waiting for equipment at my gym. However, show up during the first 45 days of the year and a 45 minute workout turns into an hour and a half snore-fest. Don’t get me wrong. I’m all for getting into shape, but 45 days does not make a year.

All that said, I have a challenge for you (since I don’t believe in New Year’s resolutions:)). I strongly encourage all human resources professionals resolve to evaluate your company’s employment background screening program from top to bottom in 2014.  The sooner, the better. And lest you think this is a sales pitch, it most definitely is not.  What I am talking about is evaluation of your processes.

Top 10 Items to Consider When Evaluating Your Employment Background Screening Program

  • When was the last time you evaluated your background screening policies and procedures?
  • Are all incoming employees subject to an employment background check?
  • Is the background screening criteria used relevant to the position you are hiring for?
  • Have you clearly defined parameters for what information constitutes a non-hirable offense by position?
  • Are you affected by the myriad “Ban the Box” Laws throughout the country which prohibit you from asking if the candidate has been convicted of a crime on the job application?
  • If so, have you worked that question into a different part of the hiring process?
  • Are you using the proper disclosure forms required by state and federal laws?
  • Are you sure that you are following proper Adverse Action procedures when you deny employment based on the outcome of an employment background check?
  • When was the last time you audited your background screening company for accuracy and compliance?
  • Have you developed the proper procedures to comply with the EEOC requirement for individualized assessment?

Why Should You Care?

Not more than a month went by in 2013 when we didn’t see a marquee press release announcing a multi-million dollar suit being filed against an employer for allegations of violating the Fair Credit Reporting Act in conjunction with their employment background screening practices or discrimination in hiring practices for the same.

Whether these companies being sued are guilty or not, the cost to defend these allegations and the negative publicity surrounding these cases should be a big red flag for all. Class action attorneys have found a new target and they are circling like sharks. Most employers are doing things properly, but there has never been a better time to make sure that you brush up on your responsibilities when it comes to employment background checks.

Commitment to Excellence: Why EmployeeScreenIQ is the Best of the Best

It’s not often that we come out and say that we’re the best background screening company. However, there comes a time when we tell prospects and remind our clients of the reasons why our company is the best fit for them. This brief video offers an explanation from EmployeeScreenIQ’s background screening experts describing why we are favored by our clients and the reasons that few leave us.

Based on many years of client feedback, here are a few highlights that we believe set EmployeeScreenIQ apart:

Company Standards—We’re committed to a solid foundation of providing the highest quality and most accurate background check results.

Education—We’re committed to keeping our clients informed and up-to-date on the latest in the background screening industry including legislation related to the EEOC and FCRA.

Relationships—More than providing great customer service for our clients, EmployeeScreenIQ focuses on building a relationship with each and every client.

Longevity—EmployeeScreenIQ has been in business for nearly two decades. From the beginning we wanted to be an organization that was more than a service, but rather is more like an extension of our client’s businesses.

Attention to DetailClients know we are looking out for them–that their successes are our successes and their failures are our failures.

Retention—Plain and simple, our clients love us. With a 99.5% retention rate and over 3,000 clients, we’re proud to say that once someone is a client, they generally stick around.

Team Effort—Many clients say they were sold when they visited our office, met our employees, and clearly saw what EmployeeScreenIQ is about. As a team that truly cares about the end product our clients receive, we are committed to the “No Shortcuts” philosophy, meaning that we do not compromise quality for a faster turnaround time.

No ShortcutsSometimes our high standards mean that a client isn’t the best fit for us or vice versa. However, we have a commitment to excellence and a passion for what we do.

1/22/2014 Winter Weather Court Closures Throughout the United States

Please note that several courts throughout the United States have been closed due to inclement winter weather on Wednesday, January 22, 2014.  Courts in parts or all of the following states have been closed: Connecticut, Indiana, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Tennessee (parts of) , Virginia, Washington, D.C., West Virginia, Kentucky.

The assumption is that most or all of these courts will reopen when the storms pass tomorrow, Thursday the 23rd.  Until then, please expect delays in completing employment background checks in the affected areas. Stay tuned for further updates.


3 Strategies to Promote Workplace Re-Entry for Ex-Offenders

For quite some time now, I’ve felt the organizations that support the formerly incarcerated have done a disservice to ex-offenders when it comes to their stance on employment background checks.  Rather than educating ex-offenders about the reality of criminal background checks and how to prepare for the tough questions from employers that are sure to come and educating employers about the benefits of hiring ex-offenders, organizations such as The National Employment Law Project (NELP) and the National Consumer Law Center (NCLC) have spent far too much time focusing on what they can do to eliminate the practice altogether.

In doing so, they continually point to statistics that they should know are misleading.  The best example of this is NELP’s assertion that the 65 million Americans with criminal records are unemployable due to their convictions.  If this were true, employers wouldn’t be able to hire anyone.  EmployeeScreenIQ data shows that less than 10% of those with criminal records are actually eliminated from employment when a background check reveals a conviction.  Based on our experience, the number of unemployed ex-offenders is widely exaggerated.

I don’t pretend to ignore the fact that some employers have enacted unfair hiring criteria when it comes to those with criminal records, but it is important to acknowledge the public safety and risk management benefits society receives as a result of this practice.

Here are my top 3 strategies to really promote re-entry into the workplace

1. They need to spend time educating ex-offenders about what they can do to prepare themselves for the process.  U.S. News and World Report columnist, Jada Graves recently wrote what I consider to be the best career advice geared towards those with criminal records I have seen.  It doesn’t sugar coat the issue and provides candidates a simple road map to follow.  It encourages candidates to set reasonable expectations for the jobs that might be out there, cautions them not to lie about their past and suggests that they study their consumer rights.  If you haven’t read this article yet, I would encourage you to do so.  To me, this should be required reading for all ex-offenders and the organizations that support them and should be used to develop training and assistance programs.

2. Rather than focus on misleading information such as the example I showed above, run with the issue that allows you to take the high ground:  Accuracy.  Every time I read Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses, a study conducted by the NCLC I find myself applauding their efforts to highlight their concerns over inaccurate background checks, while at the same time cringing over their gross over-generalizations about the fact that all background screening companies knowingly report unverified data.  The NCLC highlights instances of reporting false positives, sealed or expunged information, multiple ledgers for the same offense, etc.  Unfortunately, there are some companies that routinely engage in these practices but they are the exception, not the rule.  I strongly support their efforts to hold those offenders accountable for failing to adopt reasonable procedures to avoid inaccurate information.  That’s a real problem and is unfair to anyone who has fallen victim to inaccurate data; ex-offender or not.  But let’s not paint the picture that all background screening companies have no regard for accuracy.

3. Develop studies that highlight the benefits of hiring ex-offenders.  To be sure, not everyone with a criminal record will qualify for every job, but show employers what they might gain by taking a chance.  Looking at retention rates, recidivism, tax credits, etc.  If groups like NELP and NCLC would work hand in hand with the employer community, they would accomplish so much more for their constituents than they do by waging war on background checks.

By taking these steps, I think that ex-offender advocacy stands a much better chance of making a real impact on the lives of those with criminal records and being a reliable voice in the eyes of the public and the media.

3 Reasons Your Story Matters in Our Employment Background Screening Survey

Employment Background Screening

As an HR professional, we know that managing your day-to-day responsibilities is not always a piece of cake. Whether it’s drama in the workplace, recruiting and hiring candidates, or handling employment background checks, there are endless challenges you may encounter throughout the day.

And we also understand that it can be a struggle to keep up with all of the challenges related to employment background screening. And it’s for this reason that we not only want, but need your help in our 5th Annual Employment Background Screening Trends Survey. Your story is one of many, but your story is also crucial to the bigger picture in our 2014 Employment Background Screening Trends Report.

3 Reasons Your Story Matters

1. We’re seeking perspectives from a wide array of HR professionals—from every industry, experience level, and company size–we want to hear your story!

2. Your peers will benefit from your input and vice versa—by sharing your experience in our survey, we will create our 2014 Employment Background Screening Trends Report, which will reveal valuable information on topics ranging from criminal background checks, compliance, employment verifications, credit checks, screening candidates on social media, in addition to other background screening trends.

3. Your voice makes a difference beyond the HR industry–Last year, we received a response from nearly 1,000 HR professionals. For just one example of the media response to our 2013 survey, check out this USA Today article. We hope our 2014 Trends Report will be a powerful influence again in 2014, but we need your response to make this happen.

Employment Screening Trends Survey

Time is running out—our survey will only be available for a short time, so take the survey TODAY (it only takes about 10 minutes) and share with your HR peers so that we can hear as many stories as possible. Oh, and along with providing your valuable opinion, you can enter to win one of two $250 American Express gift cards.