14th Annual Compliance & Ethics Institute (Speaking Engagement)

Compliance

EmployeeScreenIQ vice president of compliance, Angela Preston will present, “Brace Yourself! Get Ready for the New Legal Landmines in Background Check Compliance” at the The Society of Corporate Compliance & Ethics (SCCE) 14th Annual Compliance & Ethics Institute at Aria in Las Vegas, Nevada on October 5, 2015, 3:00-4:00 p.m.

Not a month went by in 2014 without a multi-million dollar lawsuit filed against an employer for its background screening practices. Many companies may be putting themselves at risk if they are not following appropriate state and federal screening laws. While a criminal record should not automatically disqualify a candidate, employers must also protect their companies by properly screening candidates.

  • Attendees will learn about the recent wave of class action cases alleging FCRA violations in the background screening process. The session will cover the specific sections of the FCRA where employers are at risk, and learn tips and best practices.
  • Participants will learn how to update their policies and procedures to be in compliance with the 2012 EEOC Guidance and avoid being the next enforcement target. The session will cover recent litigation and offer practical solutions and templates.
  • This session will identify cities and states with ban the box laws and jurisdictions with new restrictions on criminal background checks. Learn how to update your applications, policies and procedures to comply with ban the box and other state laws.

For more information, please visit the 14th Annual Compliance & Ethics Institute’s website.

5 Questions Employers Should Be Asking Their Background Check Provider

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Clients ask a lot of questions. How long do background checks take? How much do they cost? Can we integrate with their Applicant Tracking System? (Yes). Is my data safe? (Yes again).

At EmployeeScreenIQ, we pride ourselves on answering client questions. Keep them coming! But one thing we’ve noticed over the years is the questions have become more tactical, more about impact to a pre-existing piece of technology or administrative workload. They are really important questions, but I don’t have as many strategic conversations about background checks anymore. As questions have become more diverse, they have also strayed from what I think is the primary objective of any screening program. How do I do the best, fastest, most cost effective and compliant background check possible?

Below are 5 questions employers should be asking their background check provider:

1. How do I stay compliant?

There are a myriad of regulatory agencies, state governments, local governments and consumer rights advocates, all with a vested interest in ensuring this process is as accurate and transparent as possible. We share that same goal. Take every precaution to safeguard your company and ask your current partner to evaluate your process. Close any holes that exist. Most are easy and don’t cost money. In this business, bad things that emerge out of a non-compliant program are significantly worse, more expensive and negatively impactful to your brand than almost all other bad outcomes.

2. What should I be doing?

The background screening landscape changes quickly. Products and services that didn’t exist five years ago are routine, inexpensive, fundamental components of today’s screening program. When did you create your screening program? When was your last account review with your provider?  Make sure your program reflects today’s standards.

3. What shouldn’t I be doing?

Employers might be surprised to hear that some services become obsolete, or in the mind of a screening partner, aren’t all that valuable. Get the most bang for your buck. Employment verifications are extremely valuable. A reference interview (with a co-worker) isn’t as valuable. A budget might force an employer to cut corners on executive level hires, but if they’re using those dollars to over screen entry level hires, there’s an opportunity to fix two problems at once.

4. What role can technology play?

Technology, both on the client and the screening side, has reshaped the industry. Background checkers have access to more information, faster. But on the employer side, technology can inadvertently force companies to make choices. Ask for too much information up front through an ATS? Applicants may quit the process. Collect too little, the risk of a bad hire increases. Embrace a process that saves a HR staff 10 minutes per background check (yeah!) But not if it dilutes the quality of the background check by 50% (boo!) It’s a balance. Make sure you strike the right one.

5. Who am I doing this for?

Identify key stakeholders within your organization and know whose interests win out when they conflict. A deeper background check may take longer and cost more, but risk is better managed and on the whole, the company may be more compliant. Once in a while, a candidate may take another job while waiting. Is everyone who is involved in the process ok with that? Or is that a situation to avoid at all costs? Game out these scenarios and make decisions through that prism.

At EmployeeScreenIQ, we have the luxury of seeing how thousands of companies run their screening program and as experts in the field, we have solutions and recommendations at our fingertips. Take advantage of our expertise. Go ahead. Ask away.

Keeping the People’s Pope Safe: Pope Francis, Volunteers, and Background Checks

Pope Francis

In case you haven’t been tuned in, the country has Pope Francis fever. When Pope Francis arrived in the U.S. this week for a six day visit, he was greeted by a blur of media coverage and was surrounded by an unprecedented army of law enforcement, secret service, and security professionals brought in to manage the crowds and deal with the millions of people who are expected to turn out to see the Pontiff in his Popemobile.

You might be wondering what the Pope’s visit has to do with background checks. Consider this: when the Pope appears at the World Meeting of Families event being held September 26 and 27th in Philadelphia, crowds are expected to close to 2 million people.  And apparently the Papal Father does not like to be confined—he’s known for his propensity to wander with the people. He’s a touchy-feely, hands-on kind of guy. Fun fact: no selfie sticks are allowed near the Pope.

So, in preparing for an event of that size and scope, the organizers have recruited an impressive 9,000 additional volunteers to help manage the situation. But instead of taking all comers, the organization decided not to take any chances. They ran all volunteers through a rigorous “20-point background check” that was described as a “security protocol fit for a high-clearance federal background check” that includes checks for criminal and sexual offender records.

The Papal Volunteer Background Checks

World Meeting of Families hired a private screening firm that specializes in volunteer screening to conduct the background checks according to guidelines set by the Philadelphia Archdiocese.  Based on the information found on the organization’s website, the volunteer screening program was very similar to the background screening done by private employers on regular job applicants and employees. Volunteers were directed to a portal where they could choose their desired “job,” enter their name, address, date of birth and other required information, and the background check was processed over a 2-3 day period. The check reportedly included a social security number trace, county level searches in counties where prospective volunteers had lived or worked, as well as sex offender registries. The archdiocese then determined whether the applicant was a suitable volunteer based on its policies and the volunteer role sought. That sounds like a pretty good program.

The concept of screening volunteers is not new. Many non-profit organizations use volunteers as an alternative to paid employees, and other institutions like schools and hospitals rely heavily upon a mix of paid employees and volunteers.  Think about it–many environments that lean heavily on a volunteer workforce have a high risk of exposure to young people, the elderly, or ill or disabled populations. Organizations like these need a really good screening program! So while the need is great, and the process is catching on in the volunteer community, many volunteer organizations lack the in-house knowledge or budgets to devote to a screening program. To further complicate matters, the legal requirements surrounding volunteer background checks are not always clear or well understood.

FCRA: Yes or no?

One of the threshold issues for volunteer background checks is whether they are subject to the same consumer protection laws as private, for profit employment checks. For those well-schooled in employment screening compliance, you know that the Fair Credit Reporting Act is the bible for employment screening. But volunteers are not technically employees. Some organizations, including churches, children’s charities and even schools, take the position that when it comes to volunteers, they are not employers. They claim that since the purpose of the check is not technically for employment, none of the consumer protections built into pre-employment background checks are required. Following this logic, the organization would not technically need to obtain written authorization and make the required disclosures under the FCRA, nor would it need to follow the adverse action process or dispute process under the federal law.

This approach does little to serve the organization, its constituents, or the prospective volunteers. The FTC has spoken on this issue in a 2011 staff report, and has said that the Congressional intent of the Act was, in fact, to extend protections to a broader group that would potentially include independent contractors and volunteers. The courts have done little to clear up the issue. Court opinions have occasionally held the opposite, ruling that employers dealing with independent contractors had no duty to comply with the FCRA.

The Bottom Line for Volunteer Background Checks

I would argue that the spirit of the law is to provide transparency in the screening process, and when it is practiced it helps to ensure accurate results. Obtaining prior consent and following the FCRA and state disclosure and written authorization requirements is a good practice regardless—it puts the volunteer on notice and requires explicit written permission to use personally identifying information to conduct a search. It’s the right thing to do, and I tend to think that the FTC and many judges and juries would agree.

Take the adverse action process, for example. If an organization takes a position that it does not have to send pre-adverse notices that include a copy of the report, there’s a risk that qualified volunteers will be turned away based on inaccurate information.  No one wants to make decisions on bad information.  Volunteers should have the opportunity to see the report, find out why they might be disqualified, and then have a channel through which to dispute potentially inaccurate information and clear their record.

Following FCRA requirements for volunteers creates a better experience for the applicants, a more transparent process, and more accurate results. And while there are no guarantees that any program is one hundred percent effective, it sounds like the Pope’s sponsors and the Philadelphia Archdiocese got it right.

4 Concerns for Employment Background Check Compliance

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If employment background check compliance is a top priority for your company, you’re not alone. In fact, according to EmployeeScreenIQ’s 2015 Background Screening Trends Survey, 52% of respondents said that compliance with screening laws would be a challenge for them this year.

While it’s important to have a general understanding of screening compliance, it’s even more important to follow these guidelines and laws. Ignoring them could lead to a negative candidate experience, or worse, make your company vulnerable to a lawsuit.

Take a look at four concerns employers must address to maintain a compliant background screening program.

1. Two-Step Adverse Action Process

When you find something on a candidate’s background check that might prevent you from moving forward, it’s important to not only notify them, but to do it correctly. By law, employers are required to send not only a notification, but rather two. When your background screening provider initially uncovers the record, you must send a pre-adverse notification to your candidate indicating that a criminal record was found and that they have the opportunity to dispute it, if they believe the information is incorrect.

If your candidate does not dispute the information, employers are required to send an adverse action notification letting them know that they were not hired due to the information uncovered during the background check.

If you’re unsure if your company is taking these steps correctly, contact your legal counsel or background screening partner to re-evaluate your program.

2. Ban the Box Laws

You’re familiar with ban the box. Some love it and others hate it. While job candidates with a criminal history might rejoice, employers must tread carefully with these laws.

If a ban the box law exists in your city or state, it may or may not pertain to you. For example, some of these laws only prevent public or private employers from requesting a background check previous to the job offer.

To protect your company, make sure you are aware of any ban the box laws where your company is located. If a law is in place, you must ensure that the checkbox on job applications asking about criminal history has been removed.

Ultimately, if a criminal record shows up once you run the background check on your candidate, make sure that your company policy outlines the type of criminal record that would disqualify a candidate from a position with your company. While employers often want to offer a second chance, there are some criminal records that might preclude a candidate from working with your company.

To learn more about ban the box laws, download our guide, Ban the Box is Out of Control: What You Need to Know to Protect Your Business.

3. Using Social Media Screening

When it comes to using social media during the screening process, employers should approach it with caution. While there are only a handful of laws in certain cities or states that prevent companies from using it as a screening tool, there are several concerns for employers, including the following issues:

  • Privacy: Job candidates are right to expect a certain level of trust with a company that could be their future employer. Not only could using social media screening break that trust, but some state and federal laws (along with terms of use for some social networks) may prohibit employers from using social media as a screening tool.
  • Discrimination: While your social media search may start innocently, you could discover information that ultimately can’t be unseen and may affect your hiring decision. Unfortunately, this could lead to a discrimination lawsuit, if an employer uses protected class information to make a hiring decision.
  • Accuracy: Just as you can’t believe everything you see on the internet, neither should you trust everything you see on social media. Posts and pictures can be deceiving; so don’t make a critical hiring decision based solely on information found online.

To learn more about social media screening, download our guide, Screening Job Candidates via Social Media: Reckless Practice or Savvy Strategy?

4. Pre-Employment Credit Checks

While credit checks are typically only requested by employers in the financial industry, there are many laws protecting candidates in this area as well. Employers should be aware of cities and states that prevent employers from requesting this information as well as when it might be appropriate to request and use this information for your hiring decision.

Currently, there are ten states that limit the use of credit checks:

  • California
  • Colorado
  • Connecticut
  • Hawaii
  • Illinois
  • Maryland
  • Nevada
  • Oregon
  • Vermont
  • Washington

To learn more about compliance concerns related to pre-employment credit checks, download our guide, HR’s Guide to Employment Credit Reports.

If you’re concerned that your company’s background checks are not compliant, contact EmployeeScreenIQ today to learn how we can help protect your company’s screening program.

9/23/2015 Philadelphia Courts Closed and Others for Pope’s Visit

Please note that the courts in Philadelphia, Pennsylvania will be closed from Wednesday, September 23rd through Monday, September 28th due to the World Meeting of Families and the visit of Pope Francis to the city.

We have also been notified that Washington DC courts will be operating on an emergency schedule this Thursday and Friday (September 24-25) and that the courts Camdem, New Jersey will be closed on Friday the 25th.

Please expect background check delays on any orders placed in the affected areas during this time.

Scratching Some Vinyl with the FTC- FCRA Knowledge Is Power!

FCRA Lessons Through Song

Just this week, I had the pleasure of speaking to group of HR professionals at the 2015 Illinois HR Conference and Exposition on the topic of what to do when your candidate has a criminal record. The presentation centered around the various compliance responsibilities employers have when making a hiring decision. Among them was the Fair Credit Reporting Act (FCRA) requirement to follow proper adverse action procedures if you are considering denying employment based on the information revealed on a background check.

Similar to the results we found on our 2015 Background Screening Trends and Practices, employers understanding of these responsibilities was mixed. Some thought you just needed to send just the adverse action letter, while others were unaware of the documents that must accompany the notifications.

I walked them the required TWO STEP process and I feel very confident those that weren’t doing it right will modify their processes accordingly.

This experience bolsters my opinion that employers are not going out of their way to violate the rights of their job candidates; they just don’t realize they’re executing the process improperly. The same can be said of other FCRA requirements including consent, dispute process, etc. They just need the proper tools.

Without being too self-promotional, that’s why EmployeeScreenIQ has been so active in creating educational resources for employers, from webinars, videos to articles and this blog. And while we think we’ve done a good job, sometimes people need to hear the same message from multiple resources for it to sink in. In fact, sometimes they need to hear it in song.

Introducing the Smooth Stylings of the FTC (Aww Yeah!)

Over the last year or so, the Federal Trade Commission has been putting together some great FCRA educational resources on how employers can maintain compliance in their pre-employment background screening practices. And they’ve asked for background screening companies to help spread the word.

I’ve been meaning to share some of these resources with our audience for a while now and when I read the FTC’s blog earlier this week, I knew it was time. Check out this post from FTC Mix-Master Senior Attorney, Lesley Fair.

Are you OK with the F-C-R-A?

The Fair Credit Reporting Act isn’t just about credit. If your company uses background checks in making personnel decisions, the FTC reminds you of your obligations under the FCRA. In honor of Throwback Thursday, here’s an unconventional old-school summary of key requirements under federal law. Spin the mirrored disco ball and join us on the dance floor for “F-C-R-A.”

Employers,
There’s a law that applies
When a prospect’s
Background you scrutinize.
Just remember
To dot all the i’s.
Get consent in written format.

Are you OK with the F-C-R-A?
Are you OK with the F-C-R-A?
Exercise care with that consumer report
If you’re eager to stay out of court.

Supposing
You like ‘em a lot,
But the screening
Reveals a bit of a blot.
The law says
You must give them a shot
To explain misinformation.

Are you OK with the F-C-R-A?
Are you OK with the F-C-R-A?
Give them the form summarizing their rights.
It includes the essential cites.

If adverse
Action’s what you decide,
Give the reason
Why they were denied,
And the source of
The report you supplied.
And their right to one more copy.

Once your
Decision is sure,
Take steps to
Keep disposal secure.
Need more details?
Well, we have a brochure
To deter unlawful access.

Are you OK with the F-C-R-A?
Are you OK with the F-C-R-A?
The report you must shred, burn, or pulverize
To protect it from prying eyes.

Are you OK with the F-C-R-A?  (repeat and fade)

Have more questions about how the FCRA applies in the hiring process? Read Background Checks: What Employers Need to Know – or consult your in-house cowboy or motorcycle policeman.

Thanks to Lesley’s creativity, it looks like I’m going to need to step up my blog game. Who’s up for an EEOC Haiku?

EmployeeScreenIQ Named to Workforce Magazine’s “Hot List” of Background Checking Providers for Eighth Straight Year

CLEVELAND, Sept. 15, 2015 /PRNewswire/ — EmployeeScreenIQ has yet again been recognized as one of the top providers of employment background screening services. For the eighth consecutive year, EmployeeScreenIQ made Workforce’s “Hot List” of background checking providers, which was published in the magazine’s September edition.

BMW Settles with the EEOC for a Hefty $1.6M

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One of the high profile class action cases we’ve been tracking in the wake of the EEOC enforcement guidance on criminal background records in 2012 has just settled. BMW has agreed to pay out $1,600,000 to claimants and offer to rehire the 56 plaintiffs in the case brought by the EEOC. The claimants sued BMW in June of 2013, alleging race discrimination in its hiring practices—specifically its use of criminal background checks. Those individuals, if rehired, must be reinstated without any loss of seniority, and will be given credit for increases in rank, wages and benefits over the time period of the case.

The consent decree is a 3 year agreement, and it applies to hiring at Defendant’s Facility in Spartanburg County, South Carolina. It includes contractors hired by third parties referred in the decree as “Logistics Labor Providers.” You can read the full text of the decree here.

The case was contentious, and the battles over discovery and BMW’s fight to expose the EEOC’s own hiring practices were frequent topics of legal watchdogs and bloggers. The EEOC’s beef with BMW centered on its criminal background check policies, which the agency claimed were overly broad, contained blanket exclusions, and had a discriminatory impact on minorities. The complaint argues that BMW’s criteria violated Title VII of the Civil Rights Act of 1964 and failed to follow the Commission’s guidance: “BMW also excludes from employment individuals with criminal convictions, involving “theft, dishonesty, and moral turpitude” and “makes no distinction between felony and misdemeanor convictions.”

The case’s conclusion is noteworthy for its detail in describing the EEOC’s expectations for individualized assessment, a new concept introduced in its 2012 enforcement guidance.  Individualized assessment has become a new buzzword in EEOC compliance, notable in part because the Commission’s guidance is frustratingly vague on how employers are supposed to apply what I would argue has become a de facto requirement.  The process outlined in the decree is laborious, but at least it sheds some light on what the Commission has in mind. Continue reading BMW Settles with the EEOC for a Hefty $1.6M

Has Your State Banned the Box?

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Nearly half of employers (48%) believe ban the box laws—which outlaw the checkbox on job applications that asks candidates if they’ve ever been convicted of a crime—are unfair to them, according to our “Employment Screening 2015: Background Screening Trends & Practices” survey of more than 500 individuals. Participants in the survey represented over two dozen industries, including technology, banking, healthcare, government/military, manufacturing, and professional services, and hold roles ranging from front-line managers to the c-suite.

More than half of employers (53%) continue to ask candidates to self-disclose criminal histories on applications, despite the growing number of ban the box laws and Equal Employment Opportunity Commission guidance that advises against the practice.

Passed by more than 100 cities and counties and at least 18 states, ban the box laws appear to be having an impact on some employers’ practices: in 2014, 66% of respondents said they asked candidates to self-disclose their criminal histories on job applications, 13 percentage points more than this year.

One of employers’ primary complaints about ban the box laws is that there is little or no consistency among them, making compliance difficult, especially for multistate employers. Some of these laws do little more than ban the box, but others add onerous and unique reporting requirements. In fact, 26% of respondents to the 2015 survey reported finding ban the box laws confusing.

To learn more about how ban the box laws are impacting employers, read EmployeeScreenIQ’s article, “Ban the Box Is Out of Control! What You Need to Know to Protect Your Business.”

Judge Titus Channels Inner Kenny Rogers in $1 Million EEOC Rebuke

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Image Courtesy of United Artists Records

U.S. District Court Judge Roger Titus chose to open his memorandum opinion with the timeless lyrics from Kenny Rogers’ hit song, “The Gambler”, on why he found the Equal Employment Opportunity Commission (EEOC) was liable for nearly $1,000,000 in attorney’s fees for their overzealous prosecution of Freeman Companies.

Come on. You know the song. Sing along with me. “You better know when to holdem’, know when to foldem'”.

Know When to Foldem’

You might recall that in August, 2014 Judge Titus referred to EEOC’s case as “Laughable”, “Unreliable” and “Mind Boggling” when he dismissed their case for what the commission alleged as discriminatory hiring practices related to Freeman’s use of criminal background checks and credit reports.

EEOC appealed the ruling to the Fourth Circuit Court of Appeals. At issue was the testimony of the EEOC’s expert witness, Dr. Kevin Murphy, which was excluded by the lower court. In this regard, Judge Titus was unrestrained when it came to his opinion. He described Murphy’s research as “laughable”; “based on unreliable data”;  “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors”; “completely unreliable”; “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; “distorted”;  “both over and under inclusive”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.”

Know When to Walk Away

When the Fourth Circuit affirmed the lower court’s ruling earlier this year, Freeman petitioned Judge Titus for EEOC to pay reasonable attorneys’ fees. And once again, the judge didn’t disappoint. Checkout his opening remarks below.

“World-renowned poker expert Kenny Rogers once sagely advised, ‘You’ve got to to know when to hold ‘em. Know when to fold ‘em. Know when to walk away.’ In the Title VII context, the plaintiff who wishes to avoid paying a defendant’s attorneys’ fees must fold ‘em once its case becomes so groundless that continuing to litigate is unreasonable, i.e. once it is clear it cannot have a winning hand. In this case, once Defendant Freeman revealed the inexplicably shoddy work of the EEOC’s expert witness in its motion to exclude that expert, it was obvious Freeman held a royal flush, while the EEOC held nothing. Yet, instead of folding, the EEOC went all in and defended its expert through extensive briefing in this Court and on appeal. Like the unwise gambler, it did so at its peril. Because the EEOC insisted on playing a hand it could not win, it is liable for Freeman’s reasonable attorneys’ fees.

This ruling is pretty remarkable when you consider the substantial burden a defendant must meet to demonstrate a plaintiff’s negligence in pursuing litigation. As Judge Titus pointed out, “a prevailing defendant may be awarded fees, it must demonstrate that a plaintiff’s claim was ‘frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.'”

At issue was not whether EEOC’s case was flawed, but rather if it was so flawed that it was unreasonable for the EEOC to litigate based on unreliable or non-existent claims, evidence and, or expert witness studies. I would highly encourage you to read the complete opinion, but these are the main points Judge Titus used to form his opinion.

  • The EEOC should have been aware of the unreliability of Murphy’s analysis no later than after Freeman’s motion to exclude was filed.
  • Murphy’s supplemental reports (those used to avoid exclusion) were flawed.

Know When to Run

In this particular case we learned that the EEOC is employing ultra-aggressive tactics to prove discrimination. Their case was built on suppositions which were proven to be untrue and flawed expert reports and testimony. In my estimation, they didn’t set out to deceive the court. They just didn’t yield when it was clear that they had no case.

The most obvious lesson for employers is that you should do everything you can to avoid the EEOC’s ire. Setting aside the court’s rebuke of the EEOC, employers have to realize that these cases are both time consuming and expensive. The Freeman case has been going on since 2010, and as the court estimates, cost nearly a million dollars to defend. Can you imagine the strain this has placed on Freeman?

While you can’t guarantee that EEOC won’t target you, you can and should take the following steps to limit your exposure.

  • Remove blanket exclusions of candidates with criminal records
  • Institute a documented Individualized Assessment process for candidates with criminal records
  • Consider removing check box on your job applications asking if candidates or even existing employees have ever been convicted of a crime