2015 Annual Background Screening Trends Survey Webinar Q&A

EmployeeScreenIQ held a webinar on April 22 to discuss our Annual Background Screening Trends Survey. The survey unveils new insights into the minds of HR professionals and their experience with criminal background checks, resume lies, background screening compliance, social media background checks and more. Our webinar revealed how your peers and competitors are handling their employment screening process, their greatest screening challenges and how they stay compliant with “ban the box” legislation—or even what they’re failing to do.

Our webinar attendees asked so many great questions about background check compliance that we weren’t able to answer during the allotted hour. We wanted to make sure nothing went unanswered, so our Vice President of Compliance and General Counsel Angela Preston responded below to the questions we didn’t get a chance to discuss during the webinar.

This information is not intended to be a substitute for professional legal advice. Always seek the advice of your legal counsel with any questions you may have regarding federal, state and local laws.

Do employers recognize pardons in the U.S.? – Debbie W.
Pardons in the U.S. are granted by the president. Governors can commute sentences or grant clemency. Pardons, clemency and commutation of sentencing are all terms of art that mean different things in different parts of the world. What we encounter most frequently is a “sealed” or “expunged” record. Expungements are not included as part of an employment background check. By definition, an expunged record should be removed from the public record (usually by the clerk of courts) before a background check is run. If an expunged record is discovered (either because of close timing, if it was not properly removed by the court or if it remains in a third party database), the report should be amended and should be treated as if the record never existed. In most states it is illegal for employers to consider an expunged record in the hiring decision if it is discovered.

‘… specific to the job’ seems very general. Could you reject a candidate for a history of behavior that you feel shows their character? For instance domestic abuse? – Laura H.
The legal standard for “job relatedness” can be defined differently depending on the job, jurisdiction, and other factors. It is a subjective standard, but once discrimination is alleged, the burden is on the employer to demonstrate why a particular behavior or history of behaviors will have an impact on the job. Employers may look at patterns of behavior and identify factors that may show character, such as crimes of dishonesty, fraud, or as you suggest, domestic abuse. A good reference is the EEOC guidance from 2012 which discusses job-related tests here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB

Can falsification of a degree and actual experience on a resume serve as grounds for termination of employment? What is the exposure for the employer? – Karen F.
Falsification of a degree and experience on a resume can serve as grounds for termination. Other types of dishonesty can be considered as well, such as providing false information on a job application. It is recommended that you notify candidates in advance that any dishonesty will lead to disqualification and/or termination. One caveat: Dishonesty as the reason for disqualification may not get you off the hook for FCRA compliance. If the dishonesty is discovered through the background check, you still need to follow FCRA requirements, including pre-adverse action and adverse action notices.

Can you please explain what the individualized assessment is? – Andrea G.
Individualized assessment is described by the EEOC here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB9. It is a process that gives job applicants a chance to explain why they should NOT be disqualified because of a criminal record identified by the employer. It takes into account things like the time that has passed since the offense, employment history and certificates of rehabilitation. You may develop a template or work with you legal counsel or background screening firm to develop an Individualized Assessment process that works for you.

If the background check includes comments from references, do you recommend including the complete reference information in the copy to the applicant, the same as the employer was given? John B.
Anything that was included in the report for the employer is part of the background report and should go to the applicant upon request or if the report is provided as part of the pre-adverse action process.

If we’ve set a start date for a candidate and, on the Friday before they are going start, we’re still reviewing their background check, or the results aren’t back. Is there anything wrong with postponing their date if we’ve made their offer contingent on clearing the background check? Jennifer J.
You may postpone an applicant’s start date pending the completion of a background check as long as you do not disqualify them until the results come back, and then only AFTER pre-adverse notice has been sent.

Is it five business days or calendar days between the pre & post adverse letters? Shannon R.
The best approach timing between pre-adverse and adverse notices is to wait five business days.

Is there a place that has all the ban the box locales? Kellea W.
EmployeeScreenIQ is implementing a map feature that allows you to see which states have banned the box.

Is there a standard template for the individualized assessment? Amy S.
A template can be developed using the EEOC Guidance: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB9. EmployeeScreenIQ has resources available to help you develop an Individualized Assessment process.

Regarding ongoing non-compliance: Could it be due to system/logistical hurdles? Custom adverse action letters, different guidelines by jurisdiction. It’s not manageable if manual. Outside of general execution, how do you make the solution scalable and sustainable with ongoing changes? Melissa S.
Definitely. The good news is that technology is getting better with compliance related features. To the extent that you can customize letters based on applicant provided information, you should be able to successfully automate some, if not all, processes. The key, as you mentioned, is keeping up with changes in the law. Regular updating of forms and processes is key. While ban the box might not be scalable at this time, other items are, like sending out required pre-adverse action letters with copies of the report and the Summary of Rights. Most screening firms can assist you with these administrative functions. But beware of “hidden” technology features that may reside in an ATS or HRIS system that may actually be incorrect, outdated and could get you in trouble.

Should you run MVR’s on employees that sometimes drive to customers for work but don’t have a company car? – Christa R.
Yes, I would consider the situation you described (employees that drive to visit customers) as sufficient to demonstrate the need for MVR’s. However, it is best to look at the statutes, case law and history in your particular jurisdiction to make sure there is not a specific “job related” test that you need to meet in order to be compliant. Also consider looking at examples in the EEOC guidance that demonstrate what is job-related.

If you missed our webinar and are interested in learning about the latest background screening trends—as well as steps you can take to become more compliant with employment screening laws and the dangers of not doing so—be sure to download a complimentary recording of the webinar below.

Watch Webinar

4/29/2015 Compliance and Protection Top Employers’ List of Concerns in EmployeeScreenIQ 6th Annual Background Screening Trends Survey

“Once again, this year’s survey report provides a fascinating and educational cross-section of insights from professionals across the country,” said Nick Fishman, chief marketing officer of EmployeeScreenIQ. “The findings show that employers continue to conduct background screenings for a number of sound reasons but their overall approach to the process isn’t always as sound–or as legally compliant–as they should be. As always, the report is an interesting read for anyone in the HR, staffing and talent management disciplines, and it has become the benchmark many employers use to evaluate their background screening policies and practices.”

Check Out the New EmployeeScreenIQ

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Everyone laughs when they see a company announce that it’s redone its website. Trust me, I get it. I’m one of those people. If you’ve done a good job, it’s fairly obvious to the visitor that something has changed.

Today, I’m going to break that unwritten marketing rule because I’m so excited about the major facelift we’ve given to EmployeeScreen.com and the new features we’ve built into the site (www.employeescreen.com).

This project wasn’t for the faint of heart. We’ve spent the last six months asking our clients what was important to them and what information they need to make informed hiring decisions. We analyzed what brought people to the site and what they were doing when they got there (I know, a little creepy, but welcome to 2015). We also challenged ourselves to think about the things that would be of interest to our clients in the future.

Here are just some of the rich new features now available:

  • The EmployeeScreen University Resource Center—There’s no need to go poking around all over the site to find the educational resources you need to keep up on the latest in employment background checks. Our Resource Center is a streamlined knowledge base for employers and features our most recent Expert Articles, Videos, Webinars, Case Studies, Court Delays, our BTW Compliance Newsletter and much more. (Learn More)
  • State Guide to Background Checks—Want to know if a state that you operate in has Ban the Box laws, restrictions on the use of credit reports or has legalized the use of marijuana for medical or recreational purposes? Just click on the state you are interested in and that information is at your fingertips. (Learn More)
  • Introduction to New Services—Did you know that EmployeeScreenIQ offers a host of Compliance Services to help employers with the administrative tasks associated with operating a compliant background screening program? We also are pleased to announce our new Contractor program for organizations that rely on third parties to operate their businesses and our Trust Position Intelligence Report for prospective company executives and senior management. (Learn More)
  • Partner Portal—Looking for a new talent management platform or applicant tracking solution? EmployeeScreenIQ has developed relationships with select partners who bring additional expertise to our total screening solution. These partnerships allow EmployeeScreenIQ and our clients to benefit from their valuable service offerings and expert consultation. (Learn More)
  • Mobile Friendly—We’ve made it easy to connect with EmployeeScreenIQ through your mobile device or tablet.

So, now the rest is up to you. Check out the new EmployeeScreen.com at let us know what you think.

Visit EmployeeScreen.com



2015 Employment Background Screening Trends & Practices

Background Screening Trends & Practices

 

We’re thrilled to present our comprehensive report, “Employment Screening in 2015: Background Screening Trends & Practices,” that analyzes the results of our sixth annual survey.

More than 500 HR professionals like you provided insights about how they handle critical screening issues, including compliance and criminal background checks.

Employment Screening in 2015: Background Screening Trends & Practices

Background Screening Trends & Practices

For the sixth consecutive year, EmployeeScreenIQ surveyed U.S.-based employers regarding their use of employment background checks. More than 500 HR professionals participated and boy did we get our money’s worth!

As with our previous surveys, the 2015 survey was designed to provide a reliable snapshot of:

  • How employers currently utilize employment background checks.
  • How they respond to adverse findings on background checks.
  • Their paramount background screening-related concerns.
  • And their practices concerning Fair Credit Reporting Act (FCRA) responsibilities, Equal Employment Opportunity

Want to learn how are other organizations handling today’s tough background screening decisions? Read the summary report of our sixth annual survey, “Employment Screening in 2015: Background Screening Trends & Practices,” and LEARN:

  • What 51% of employers say is their top background screening challenge.
  • How common it is for employers to ask candidates to self-disclose criminal histories on employment applications.
  • The rates at which employers disqualify candidates for background checks that reveal criminal convictions.

The results may just cause you to rethink your screening strategies!


Download the Results Here!


FCRA Case Dismissed! Court says LinkedIn is not a CRA

 

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LinkedIn is off the hook. A California district court has dismissed a class action lawsuit filed against the business networking site. The full decision can be found here. The popular social network was sued last year by job seekers who claimed that LinkedIn’s Reference Searches cost them jobs. The theory of the case was that LinkedIn should be treated like other background screening companies–a theory that was successful against another website, Spokeo.

Case Background

Tracee Sweet, the named Plaintiff, had what she thought was a positive interview with a prospective employer. In fact, she later got word that she would be hired. Soon thereafter, the company called her back and said it had changed its mind. As it turns out, the company had checked some references using LinkedIn’s “References Searches” function. Reference Searches is pretty much what it sounds like—it’s a LinkedIn feature that employers use to track down people with whom an applicant may have worked previously.

Sweet and other similarly situated job seekers filed suit, alleging that the reference feature violated their rights under the Fair Credit Reporting Act. At the crux of the complaint was the plaintiffs’ argument that LinkedIn was acting as a consumer reporting agency (CRA) under the Fair Credit Reporting Act (FCRA), and that Reference Searches were consumer reports. Last week a California U.S. District Court dismissed the case, finding that the Plaintiffs had not alleged sufficient facts to support a plausible FCRA claim.

The Decision

In reaching its findings, the court emphasized the following points:

First, the court found that LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference Searches are not consumer reports:

“because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers. The FCPA excludes from the definition of consumer report any “report containing information solely as to transactions or experiences between the consumer and the person making the report.”

Second, the court found that LinkedIn’s publications Reference Searches still would not be consumer reports because Plaintiffs’ allegations do not raise a plausible inference that LinkedIn acts as a consumer reporting agency when it publishes these histories:

The court distinguished the Plaintiffs from the plaintiffs in Robins v. Spokeo, Inc., noting that in Robins, the court held that the plaintiff’s allegations that the defendant “regularly accepts money in exchange for reports that contain data and evaluations regarding consumers’ economic wealth and creditworthiness [were] sufficient to support a plausible inference that [d]efendant’s conduct falls within the scope of the FCRA.”

In this case, the court found that LinkedIn was merely carrying out consumers’ information-sharing objectives and not acting as a consumer reporting agency with regard to its assembly of this information.

Third, the court found that the Plaintiffs’ allegations are insufficient to state a claim that the information in the Reference Search bears on the “character, general reputation, mode of living” and other relevant characteristics of the consumers as required by the FCRA.

Fourth, the court found that Plaintiffs do not state a claim that the Reference Search results are used or intended to be used to determine eligibility for employment. “A communication must be “used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for . . . employment purposes . . . .” in order to be a consumer report.” The court did not find that the search results themselves were used in the hiring decision. Rather, the results were used to locate people who may or may not then provide information about the candidate.

Bottom Line

The good news is that employers and recruiters can continue to use LinkedIn as they always have, without fear of additional compliance requirements that would have attached if the court had found that the web site was in fact a CRA. Likewise, LinkedIn can carry on business as usual. Since it is not a CRA, it has no duty to verify the accuracy of the information reported in the Reference Searches, nor does it have a duty to put consumers on notice about the use of the information in the hiring process. The results of the case have an upside for users and consumers alike who rely on the power and convenience of LinkedIn every day (including me!).  The downside, if there is one, is buyer beware. Like any other social media source, much of what you find on LinkedIn is user generated content. There’s no good way to know if it’s accurate. My advice–make sure you do your homework and conduct a real background check before hiring someone you find on social media.

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Credit Reports and the Hiring Process: The Value (and Risk) to HR Professionals

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Imagine one of your employees absconds with some cash. That’s unfortunate—but not nearly as unfortunate as when your CEO discovers the employee had a troubling history of financial irresponsibility. Then the question is not why they took the money, but why you hired them for a position of financial responsibility.