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… mitigating circumstances. This sounds a lot  like individualized assessment—a standard that the EEOC is now recommending when criminal records are used for employment. Finally, Colorado imposes adverse action requirements that extend beyond what is normally required under the Fair Credit Reporting Act.

The take-away is this: if you are an employer doing business in Colorado, and if consumer credit information is part of your hiring process, you should consult with your legal counsel and …

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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?

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?

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

Is 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

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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:

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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:

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

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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.    

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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. [...]

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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.

New legislation has been appearing in states and cities across the country, limiting employer’s use of employment background checks by preventing them from asking a job candidate about criminal history–at least until after a conditional offer of employment has been made. Officially, the states that have passed legislation limiting criminal background checks include California, Connecticut, Hawaii, Massachusetts, Minnesota, New Mexico and Washington DC. In addition, there are pending bills in New Jersey, Michigan, North Carolina, Rhode Island and Minnesota. For additional information, read our recent post, “Ban the Box” Bandwagon Rolls On.

As the ban the box issue continues to gain momentum, it’s important to be aware of ever-changing legislation in this regard. Our experts, Angela Preston, VP of Compliance and General Counsel, Jason Morris, President & COO and Nick Fishman, Chief Marketing Officer, discuss the most pertinent ban the box information in our first video, “Your Applicant’s Criminal Past: Does it Matter?” Find out why a little check box is such a huge controversy and how you can be aware of these changes within your company’s hiring process.

Quick Takes is a video series blending together bits of experience and expertise from EmployeeScreenIQ’s background screening experts.  With a newsroom feel, discussions surround the latest issues in the background screening industry. All of the videos were filmed unscripted-giving you the opportunity to hear genuine responses from the professionals. Topics range from social media background checks to conducting a thorough criminal records search. We’re releasing a new video every month, so stay tuned.

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EmployeeScreenIQ president, Jason Morris, is a frequent speaker at industry events on background checks, global screening, security, recruitment and staffing and he often discusses best practice initiatives as they relate to organizational pre-employment screening programs. Tomorrow, Thursday April 18^th, 11:00-12:00 ET, Jason will present, Caution Ahead: Navigating the New HR Minefield of Recruiting and Screening Laws for HR.com’s virtual conference, Online Staffing and Sourcing. It’s not too late to register for this free event, so take a few moments to sign up today.

Through an engaging, interactive audiovisual presentation that includes the very latest news of the day, Morris will cover the influx of state and federal laws facing employers—including increased EEOC scrutiny of hiring practices and new but untested screening tools such as social media. The media and analysts have also sustained a steady drumbeat that accuses employers of over inflating the importance of background checks when negative results are revealed. The presentation will guide organizations and HR professionals in safely navigating the stormy legal waters by keeping informed and taking the proper steps to ensure compliance.

The presentation will cover the following questions, assisting HR professionals to gain an understanding of the latest issues in recruiting and background screening laws:

• Should you use social media sites to source and screen candidates? If so, how can you do so without running afoul of the law?
• How do the EEOC’s recent actions affect the use of criminal records and credit reports?
• How do “Ban the Box” and other state reporting laws affect your ability to conduct a comprehensive background check?

To find out more about Jason’s presentation, visit: Caution Ahead: Navigating the New HR Minefield of Recruiting and Screening Laws. To register, go to Online Staffing and Sourcing.

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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.

One of the questions we asked was if their organization asks candidates to self-disclose past criminal history on their job applications.

Despite the guidance issued by the EEOC in April of 2012—recommending that employers should not ask candidates about convictions on job applications—79% of respondents say they are continuing to do so (see chart below). [...]

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The movement to “ban the box” shows no signs of slowing down. New Jersey, Rhode Island, North Carolina, Minnesota and Michigan are all considering new bills for statewide bans on the practice of asking applicants to check a box on their job application indicating whether they have a criminal conviction. We can hardly keep up with the influx of proposed new laws limiting criminal history in one way or another. Here is a run-down:

New Jersey
The most comprehensive and far-reaching proposal is in the State of New Jersey. On February 7, 2013, three New Jersey Senators introduced “The Opportunity to Compete Act,” (“OCA”) which would eliminate the check box that requires job applicants to disclose their criminal history and would also prohibit advertisements discouraging those with criminal records from applying. The bill is modeled after the recent ordinance that was passed in the city of Newark. The bill, as proposed, will significantly complicate the hiring process in the State of New Jersey.

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