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Compliance Employment Background Checks

Just when you thought it was safe to get back in the water, the sharks are circling with more FCRA-related class action claims. This time Home Depot and Aaron’s furniture stores are the companies under attack. Just a couple weeks ago, when most Americans were cutting out of work early to get to their July 4th parties, these two retailers were hit with class action lawsuits alleging violations of the Fair Credit Reporting Act (FCRA) in their background screening process.

This is a continuation of the wave of FCRA class action lawsuits that I have written about all too often in the past year. Investing in some preventive FCRA compliance measures this summer can really pay off, especially since the litigation continues—and recent settlements are costing employers millions of dollars.

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Ban the Box Employment Background Checks

Ban the box has gone viral. And while the removal of this little check box has potentially made life easier for job seekers with a criminal past, it has created much confusion and frustration for employers. If you haven’t been in the loop, “ban the box” is the catchy phrase that refers to removal of the check box on a job application asking whether a candidate has been convicted of a crime. Ban the box shows no signs of slowing down, and it’s creating new headaches, not to mention real risks, for employers across the country.

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Ban the box

Another day, another dollar. And another ban the box bill.

The city of Rochester has banned the box, joining other US cities like Buffalo, Baltimore, Newark, Philadelphia, San Francisco, and Seattle. You can read about the specifics here.

The Washington D.C. Council is currently reviewing the “Fair Criminal Record Screening Act of 2014″ which has sparked plenty of debate and controversy. Like the Rochester ordinance, it would prohibit both public and private employers with more than four employees from asking about criminal history until after an initial job interview or after a conditional offer of employment.

New York City is considering its own version of ban the box, called the NYC Fair Chance Act.

At the state level, a few weeks ago the New Jersey legislature passed a bill that now sits on Governor Christie’s desk. If signed, the Garden State will join Hawaii, Massachusetts, Minnesota and Rhode Island in banning the box. You can read more about the details of the New Jersey bill here.

Illinois is expected to soon follow; a similar law sits on the governor’s desk. For those of you keeping track, eight additional states (California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nebraska, New Mexico) have removed that question from applications for public or state jobs. In Georgia, an executive order will soon ban the box on state employment applications.

If you haven’t already, read my latest analysis: The Problem(s) with Ban the Box and let me know what you think!




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Indiana

Effective July 1, 2014, Indiana has a new rule on what information “criminal history providers” can report in employment background checks. This latest version of Ind. Code § 24-4-18-6 makes a technical correction to the law and clears up a few things.  Unlike previous versions of the statute, the new law allows reporting of non-conviction and pending records as long as the information is within the 7 year window required under the Fair Credit Reporting Act.

As it now reads, the law limits reporting of expunged records and sealed records—records that any compliant screening company wouldn’t give you anyway. It also prohibits reporting certain classes of felonies that have been reduced or converted to a misdemeanor, and creates a statutory cause of action for the intentional or “knowing” act of reporting an inaccurate record. [...]

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Baltimore Ban the Box

Baltimore is the latest major U.S. city to “ban the box.” Mayor Stephanie Rawlings-Blake is expected to sign a controversial bill that prohibits both private and public employers from asking job seekers about their criminal background on job applications. The bill passed the city council on April 28, 2014 with a vote of 10-4.

The Baltimore law raises the stakes to a whole new level by imposing criminal penalties for employers who violate the law, including a fine of up to $500 per violation, and up to 90 days in prison. Employers found in violation may face both a fine and imprisonment for each offense. Ironically, in an effort to help ex-cons, the law creates a new class of criminals.

Under the bill, employers may ask about criminal history and conduct a criminal background check only after making a conditional offer of employment. The bill has been widely criticized by business groups who point out the time and expense posed by requiring a conditional offer of employment. The law provides a safe harbor for federal, state, or local mandates where a background check is required, and it also provides an exemption for employers who handle vulnerable populations. [...]

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Candidate Experience

This month, we are looking at things from the job applicant’s point of view. I’m answering a question from Quentin, a job candidate who was rejected for employment by Big Kahuna Burger (BKB). Based on Quentin’s version of the facts, his question reads a lot like what NOT to do for a positive candidate experience. Of course, the names have been changed to protect the innocent.

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Substance Abuse Screening

Can you fire someone for testing positive for marijuana in the workplace? With pot dispensaries outnumbering Starbucks in cities like Denver, and websites like weedmaps popping up on the web, it’s a legitimate question. Maintaining a drug free workplace has been somewhat complicated by the legalization of marijuana (aka cannabis, or just plain old “pot”) in the states. Legalization and or de-criminalization of marijuana is a growing trend. The federal government has stepped back from enforcement of marijuana offenses, in part because of the actions of the states.  All of this leaves some employers scratching their heads—wondering, when it comes to pot, what’s legal and what’s not?

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Employment Credit Checks

US Senators Brian Schatz (HI) and Sherrod Brown (OH) introduced legislation on April 9, 2014 calling for credit reform. The bill, as introduced, would require significant changes for credit furnishers and consumer reporting agencies (CRAs). The Senators and bill supporters are calling the proposed legislation the “Stop Errors in Credit Use and Reporting”, or SECURE Act of 2014. The bill has been referred to the Senate Committee on Banking, Housing, and Urban Affairs.

Credit reporting agencies are beholden to both the Dodd Frank Act and the Fair Credit Reporting Act (FCRA). Based on the press releases that announced the introduction of the bill, supporters say that consumers need tighter rules for ensuring that credit reports are accurate. The stated purpose of the bill is, “To enhance the accuracy of credit reporting, provide greater rights to consumers who dispute errors in their credit reports, and for other purposes.” It’s the “other purposes” part that makes me nervous. [...]

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Swift Transportation Settlement for Background Checks

It’s finally over. Swift Transportation Corporation has entered into an agreement to pay $4.4 million and settle a long-running and contentious class action lawsuit for alleged Fair Credit Reporting Act (FCRA) violations. The settlement marks the resolution of yet another high dollar case following the growing trend of FCRA class action claims for background check violations. The case, Ellis et al v. Swift Transportation Corporation, was filed on behalf of US job seekers who applied for truck driver positions with Swift from July 23, 2008 and after.

FCRA Claims Abound

Swift is not alone—it’s just the latest large employer to capitulate. K-Mart agreed to pay out $3 million last year to settle an FCRA claim over background checks, specifically for alleged adverse action and notice violations. Domino’s Pizza paid out a cool $2.5 million in a similar case, and US Xpress settled for $2.75 million. Whole Foods and Disney are currently defending class action claims over their background screening policies filed earlier this year. [...]

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Nebraska Ban the Box

On April 18, 2014, Governor Dave Heineman (R) signed off on a ban the box provision for the State of Nebraska.  The “box” in question is the somewhat controversial check-box on job applications that asks prospective employees about their criminal histories. In this case, the ban applies only to public employers in the state. [...]

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