By The Way

Thanks, Gerry

I first heard the name Gerry Crispin in 1998.

I was working for a job board at the time, and our CEO had been hounding the marketing department for weeks about putting our best foot forward for CareerXRoads, a book that, at the time, was the Bible for rating all the online players.

In the days before blogs and social media, publications like CareerXRoads were vital to vendors who wanted to make a splash. A solid review meant instant street cred, while something less than stellar meant another year in purgatory.

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Dylann Roof’s Background Check: Quality Takes Time

Criminal Background Check

It’s a heartbreaking story. Every time a shooter like the alleged killer Dylann Roof becomes unhinged and takes innocent lives, we, as a nation, mourn. What makes the story even worse is to think that it all might have been prevented by taking more time with the background check.

Roof is accused of killing nine people at a church in South Carolina three weeks ago. Last Friday, FBI Director James B. Comey said Roof was able to purchase the gun used in the attack only because of lapses in the FBI’s background-check system. In a statement last week, Comey said “This case rips all of our hearts out. But the thought that an error on our part is connected to this guy’s purchase of a gun that he used to slaughter these good people is very painful to us.”

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Oregon Bans the Box

Oregon Ban The Box

Oregon has officially banned the box for all employers, delaying the timing of pre-employment criminal background checks. On June 25, Oregon Governor Kate Brown signed HB 3025 into law. Effective January 1, 2016, it will be illegal for an employer in the State of Oregon to require an applicant to disclose a criminal conviction on a job application or to require an applicant to disclose, prior to an initial interview, a criminal conviction.  If no interview is conducted, it will be illegal to require an applicant to disclose, prior to making a conditional offer of employment, a criminal conviction.

The statute specifies that it does not make it illegal to perform a criminal background check or to consider conviction history in the hiring process.  It does, however, defer an inquiry into criminal history until after the applicant has been interviewed or potentially offered the position.

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5 Legal Lessons for Millennial Background Checks

millennials

By the end of 2015, Millennials are expected to outnumber Baby Boomers in the workplace for the first time ever. As the largest generational group in the job pool (depending on your source, people born 1982-2004), they’re a hot commodity. Up until now, most of the focus has been on how to woo them, lure them in and make them so happy that they want to work for you forever (or at least for a few years).  But employers are finding that it’s not all smooth sailing.  Hiring this growing generation of workers introduces a whole new set of legal challenges to the HR department, and the background screening process is one of those challenges.

When it comes to screening Millennials, employers need to take into account not only what’s effective, but also what’s legal. Wait a minute. I know what you’re thinking. How is a Millennial’s background check different from any other background check? Read on to learn how to spot the tricky issues and avoid a legal tangle with this new wave of workers.

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Nevada Removes 7 Year Limit on Criminal Records

Nevada-Flag-Second-Design

Conducting employment background checks in the Nevada just got a little easier. The state has expanded the scope for pre-employment criminal background checks, lifting a 7-year reporting limit on criminal convictions. Nevada Senate Bill 409 was signed by Governor Sandoval last week. The law takes effect immediately. Under the new law, background screening companies are now able to report convictions older than 7 years in Nevada.

Additionally, SB 409 specifically allows gaming operators and employers to conduct more thorough background checks on prospective employees, allowing screening companies to prepare a report at the request of the gaming licensee which may include bankruptcy information older than 10 years and other civil judgments older than 7 years.

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Counting to Five in the Adverse Action Process

 

The adverse action process for background checks has been in the spotlight lately, thanks to a growing list of class action lawsuits against employers. In some recent cases, those lawsuits have resulted in multi-million dollar verdicts. Others are still winding their way through the court system, with employers defending their practices and filing motions in an attempt to dismiss some of the more far-reaching claims.

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New FINRA Rule on Background Checks

 

finra-logo

FINRA (the Financial Industry Regulatory Authority) has issued a rule change for background screening requirements that goes into effect on July 1, 2015. FINRA Rule 3110(e) is based on similar provisions in NASD Rule 3010(e) and NYSE Rule 345.11. For those of us who are acronym challenged, that’s the National Association of Securities Dealers and the New York Stock Exchange, respectively.

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New York City Council Passes Ban the Box

New York City

The Fair Chance Act, New York City’s take on Ban the Box, was passed by New York City Council last Wednesday. The bill had overwhelming support; Mayor deBlasio is expected to sign the bill, which will take effect 120 days after its enactment.

If you’re new to ban the box, the “box” refers to the check box on job applications asking applicants if they have a criminal history. The idea is to allow ex-offenders a chance to get past the application stage and increase their job opportunities by delaying a criminal background check or inquiry until later in the hiring process. The full text of the bill can be found here. In a press release issued by the council, supporters clarified that “nothing in the bill would require an employer to hire anyone despite criminal history.”  Like many other ban the box laws, the New York version goes beyond the application check box, and adds some additional restrictions on the use of criminal information in the hiring process that employers need to know. Here is a breakdown:

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State of Ohio Bans the Box for Civil Service Jobs

Ohio

While the state legislature has not yet weighed in on the issue, the Buckeye State has taken one step closer to embracing “ban the box.” Effective June 1, state civil service applications no longer include the check box asking job applicants about their criminal history. The question has reportedly been removed from both online and paper applications. (more…)

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Litigation Update: FCRA Claim Against Paramount is Thrown Out

Background Checks Paramount Gets FCRA Claim Thrown Out

Finally, a voice of reason. Employers got some good news from a judge in the Northern District of California last week, when the court granted Paramount Picture’s motion to dismiss a class action claim for alleged Fair Credit Reporting Act (FCRA) violations. The case was one of the many class actions that have been flooding the federal courts, disputing the validity of the disclosure form used for running a background check. This wave of litigation has erupted over the past twelve months, putting employers on the defensive against FCRA claims seeking millions in statutory and punitive damages.  The judge’s decision to dismiss the case against Paramount is a welcome development, and may be a turning point for employers facing FCRA class actions of this type.

The plaintiff alleged that Paramount violated the FCRA’s requirements for disclosure of consumer reports. The specific code section, 15 U.S.C. § 1681b, provides that before conducting a background check, an employer must make a “clear and conspicuous disclosure”, “in a document that consists solely of the disclosure” (emphasis added). The plaintiff alleges that Paramount violated the above provision of the FCRA by including some extraneous information in its disclosure form—namely a certification that the information provided by the plaintiff was true and correct.

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