The IQ Blog offers human resources and risk management professionals a 360-degree analysis of the evolving trends, ever-changing legislation and innovations in the world of employment background checks, with an occasional opinion or two and attitude mixed in.
This great search was powered by Search Unleashed.
Help to remove this message by getting the site owner to support this software.
… the report, including clarification with the background screening company that his record had been expunged, and that the record was eventually removed from his report on December 14, 2011. In the end, he did not get the job. He is now alleging that:
Disney knew its duty to provide pre-adverse notification
That Disney in fact had a policy to that effect
Yet Disney still failed to send him notice or a copy of the report and the other required notifications
For those of you interested in keeping up with the latest in compliance for pre-employment background screeningand the laws that affect your use of employee background checks, follow our publication, “BTW: Your Guide to Staying Out of Hot Water.” This compliance resource has been created by our VP of Compliance and General Counsel, Angela Preston and is a must-read for human resources and security professionals.
If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here. The latest changes to the Indiana “Second Chance” law go into effect today, July 1, 2013, were brought about by Indiana House Enrolled Act No. 1482 (the “Act”), and signed into law by Governor Mike Pence in May 2013. Read More
Transportation giant J.B. Hunt Transport, Inc. has entered into a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), over charges of racial discrimination based on a criminal background check. In a statement issued by the Commission, the EEOC claims that J.B. Hunt discriminated against an African-American job candidate who was denied a truck driver position at a J.B. Hunt facility in San Bernardino in 2009. Read More
Everyone’s favorite employment background checks are the ones which sail through the process with no hitches. No criminal records or any other adverse information to verify. And for the majority of employee background checks, that continues to be the norm. Read More
If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here. The latest changes to the Indiana “Second Chance” law went into effect on July 1, 2013, and were brought about by Indiana House Enrolled Act No. 1482 (the “Act”), and signed into law by Governor Mike Pence in May 2013. The new law applies to both Indiana-based employers as well as employers who hire workers in the State of Indiana. In addition to outlining the conditions and process by which ex-offenders can request the expungement or sealing of records, the law also has a direct impact on which criminal records employers can and cannot consider in the background screeningprocess. Here are some highlights:
Section 10 of the Act makes it unlawful for any person to refuse to employ, or to otherwise discriminate against, any person because of a conviction or arrest record expunged or sealed under the law. Violation of this section is a Class C infraction and can lead to a contempt order as well as injunctive relief.
Any inquiry into an applicant’s criminal past on a job application must seek such information only in terms that exclude expunged convictions or arrests. The statute suggests the following wording: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”
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.”
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:
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.
Yesterday, EmployeeScreenIQ held our first webinar of 2013, “992 Heads are Better than One: Balancing Applicant Rights & What Employers Need to Know.” We unveiled the results of our 2013 Employment Screening Trends Survey, reporting the key findings of our report. In case you missed it, the webinar recording will be available soon, along with the survey report, so keep an eye on our blog posts for these releases. We recently posted a response to an article posted in the Wall Street Journal questioning the use of the EEOC’s new rules. Earlier this week, we wrote about a recent case against Target for unfair hiring practices. And lastly, we’ve posted a few times on the differences between background checks for firearms and employment background screening; this week we shared another component on the use of mental health records in background checks for firearms.
The NAACP and a Minnesota community group have filed claims with the Equal Employment Opportunity Commission (EEOC) alleging that Target Corporation’s use of employment background checks constitutes a discriminatory practice. The groups claims that Target denied job interviews to candidates with criminal records regardless of age, correlation to job responsibilities and even in cases of where convictions were expunged. Read More
Another large background screening company has agreed to pay a multimillion dollar settlement to end a class action alleging of violations of the Fair Credit Reporting Act (FCRA). We told you about another case resulting in a hefty settlement here. The latest in a series of unfortunate attacks on background screening practices is Henderson v. Verifications Incorporated, and the defendant, a background screening company, has agreed to pay $3.8M to settle a class action filed in federal court in the Eastern District of Virginia. I learned about the settlement from a recent post on the legal blog Law 360. The settlement includes an “incentive” payment of $3.75M and includes a big fat paycheck ($1.125M) for the plaintiff’s legal team, plus court costs and expenses. In my opinion the result is disappointing, with no real upside for anyone involved. Even if a company does everything right, they can still be sued. And in this case, nothing was actually “settled”.
The NAACP and a Minnesota community group have filed claims with the Equal Employment Opportunity Commission (EEOC) alleging that Target Corporation’s use of employment background checks constitutes a discriminatory practice. The groups claims that Target denied job interviews to candidates with criminal records regardless of age, correlation to job responsibilities and even in cases of where convictions were expunged.
This morning, the Today Show ran an investigative piece criticizing background screening companies. The story gave several examples of egregious mistakes made by some well-known background screening companies. I knew that the story was coming, and I fully anticipated a one-sided hatchet job portraying background screening companies in the worst possible light. Jeff Rossen’s predictably sensational style did not disappoint. Video: Rossen Reports
The examples in the story were the worst—all chosen to show how background screening companies get it wrong. Inaccuracies in reports happen, and they occur at the expense of hardworking, honest and innocent job seekers. Catherine Taylor, featured in the story, is the perfect victim—a seemingly kind, honest, and hardworking stay at home mom who missed out on a job opportunity with the Red Cross because of a sloppy error in an employment background check that mistakenly identified her as a repeat felony drug offender. The drug offender had the same name and DOB, but the similarities ended there.
Rossen went on to give other examples of equally appalling instances where screening companies have reported inaccurate information resulting in lost job opportunities. Mismatched names, the wrong states of residence, or missed identifiers were all given as examples of inaccuracies. What happened to Taylor and the others is wrong. Period.
I understand that no process is perfect, and every background screening company makes the occasional mistake. Moreover, the background screening companies named in the story are run and managed by friends and colleagues who I know and respect. So as much as it pains me to admit, I have to give Rossen credit. The story made some very good points. It was, for the most part, fair and accurate. When background companies mess up, people lose jobs. It really is that simple.
As Rossen pointed out, the FCRA does provide a dispute process for candidates who find inaccuracies in reports, but by the time that process has been completed, it is often too late. Companies are not required to keep jobs open for the full 30 days that are allocated for dispute resolution. While our disputes are usually cleared up within a few days, even a few days can be too long for some employers to wait.
Rossen cited the FCRA’s requirement for “maximum possible accuracy.” Background screening companies are required to meet that standard, but the examples in the story showed that companies are not hitting the mark. When Rossen asked an attorney why screening companies don’t fix the problems, he responded that providing accurate information requires investment in people and processes that cut into profits. Again, he’s right. It’s true. Delivering a higher level of accuracy costs money and takes additional time and people.
It is unfortunate that people will walk away from an early morning news show with such a poor impression of background screening companies, and the process in general. The story that wasn’t told was that many companies do spend the time and money to get it right. The NAPBS spokesperson was misquoted on the statistic given for disputes and inaccuracies. Based on our own internal statistics and information shared by my colleagues at other companies, accuracy rates are much higher that portrayed in the story.
Our dispute rate for inaccuracies at EmployeeScreenIQ is .017 percent. That means that only one (1) out of every 6,000 county criminal record reports is disputed. With that said, most of those disputes result in no change—only one (1) report for every 5,000 job applicants is amended because of an EmployeeScreenIQ error. I share these numbers not to say we’re better, but because it is true. It is important to put it out there to let people know that lots of companies get it right. And the easiest way to get it right is to make sure the report is accurate in the first place.
Our “No Shortcuts” philosophy boils down to this: before reporting criminal records, our Public Records department confirms that the information that we’ve found actually belongs to the applicant. We confirm that the record is legally reportable. The same holds true for our methods for conducting employment and education verifications. Our research team reviews each response for depth of detail and to ensure there isn’t any misleading or inconclusive information. We’re all for streamlining the process and reducing turnaround time, but it shouldn’t come at the expense of a quality product or a job applicant’s future.
So what now? As I have said before, I firmly believe that if you are running or managing a business, doing a criminal background check is a must. It’s a sound and best practice and it is probably negligent not to do so. Even Jeff Rossen conceded that NBC routinely conducts background checks on employees, as they well should.
At the risk of being repetitive, I am re-posting some of my thoughts on the subject of accuracy that I shared last month, when another background screening company came under the scrutiny of the FTC for inaccuracies. My advice was directed at employers who are looking for the right partner to conduct background checks. We all want the same result—to get the right people in the right jobs. Follow these tips, and your company is less likely to be featured on Jeff Rossen’s next expose.
1. Look for NAPBS accreditation: This standard, established a couple of years ago by the National Association of Professional Background Screeners, identifies that a background screening firm is committed to best practices, subjects itself to on-site audits, and has submitted to ongoing monitoring and approval of policies and procedures by an accrediting board.
2. Ask your provider about accuracy: The FCRA requires “reasonable procedures” to ensure “maximum possible accuracy.” Ask your background company about this requirement. Ask to see their process. How do they handle common names? How do they match identifiers? They should know what you’re talking about. If they don’t, start looking for a replacement.
3. Does your background firm use databases? Databases are great. They are highly effective when used properly. So if they use them, how do they confirm that the information is up-to-date? A database is NEVER completely up-to-date. Even the FBI and state police databases are full of holes and gaps. By definition, a database is stored information that does not keep up with the real-time activity of a court. Unless a provider is confirming with an on-site or real-time court level check, the information may not be accurate.
4. What about expungements? If information is not verified at the county court level, you run the risk of making a decision based on an expunged or sealed records.
5. Does your provider publish duplicate offenses? If a case is reported in multiple places, the right thing to do is only report it once. Courts and regulators agree–reporting duplicates can make an applicant look worse that they really are.
6. Does your provider send required notifications to consumers when public record information cannot be verified? This is one area where the FTC and courts are coming down hard. The process of notification when records are not confirmed can be fraught with problems, and can be avoided altogether if the information is been verified at the source before being reported. Ask your provider about their policy on this issue.
7. How does your provider deal with consumer inquiries? Ask for a copy of their dispute resolution policy. Take it to your attorney to review. The law says disputes must be responded to within 5 days, resolved within 30 days, and the background screening company must provide a copy of the report upon request. If it seems like a background screening company is making job applicants jump through hoops when they have a question about the report, beware. The law exists to help consumers and job seekers, and the background screening companies are a critical part of that process.
The final word: If any of my colleagues at other background screening companies and with NAPBS have statistics or information to share, I encourage you to post them here, and join in the conversation. I would like to hear from you, as would clients and employers who deserve to hear the other side of the story.
All information contained on this website is provided by employeescreenIQ solely for the convenience of the site viewers. employeescreenIQ is not providing legal advice or counsel and nothing provided on this website or otherwise by employeescreenIQ should be deemed as legal guidance or advice. Users are solely responsible for complying with all local, state, and federal laws relating to the use of any information provided on this website and any information products provided by employeescreenIQ. Users should consult with their own legal counsel if they have questions regarding their legal responsibilities or any information provided by employeescreenIQ.