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Credit Reports in Employment Background Checks

Our friend Pam Devata at Seyfarth & Shaw blogged yesterday that Colorado became the ninth state to prohibit the use of employment credit reports in hiring. As Pam reports, Colorado’s law will prohibit employers from using “consumer credit information” for employment purposes.

Colorado joins eight other states–California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington—in restricting access to consumer credit in the hiring process. The rational for the state action is summarized in the bill’s introduction: [...]

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criminal record background checks retail databases

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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EEOC criminal background check

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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Employment Background Checks National Criminal Database

The debate about national background checks has been in the headlines every day since the tragic shooting at Sandy Hook Elementary School. The focus has been on background checks for gun purchases, but some of the same points that have been made in the context of guns carry over into our world—employment screening.  One of the biggest hiring concerns for any employer is an applicant’s criminal history, thus almost every background check includes a criminal component.  The most frequent questions we field from both clients and the public have to do with “national” background checks and criminal databases. Why is this topic so confusing? Well, it’s complicated.

The National Association of Background Screeners (NAPBS) recently published a paper to shine some light on the subject. The bottom line is this: there is no single source for a national criminal check. The FBI database is incomplete. For a record to be located and housed with the FBI’s Interstate Identification System (also known as “III”) it must have a fingerprint associated with it. But unfortunately, fingerprints aren’t associated with all criminal records indexed at county or state repositories. To complicate matters, while all states currently participate in submitting some records to the III, criminal record reporting is extremely irregular across counties and states. We know that not all state criminal records or fingerprints meet the FBI’s standards for inclusion in the III, and not all state records are submitted to the FBI.

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Criminal Record Database

 

 

 

 

 

 

 

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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Consumer Privacy Employment Background Checks

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 March issue focuses on issues of consumer privacy particularly as it relates to employers request of their candidates’ social media passwords.  While we don’t believe many employers engage in this practice as part of their employment background check policies, congress seems poised to create a federal law banning such a request.  We also take a close look at a recent $3 million FCRA settlement and the trend of local/state governments adopting “Ban the Box” measures.  For a preview of this issue, check out Angela’s video below.

 

 

Review March Issue

 

 

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Ban the Box Employment Background Checks

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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Consumer Privacy Background Checks

The social media privacy debate continues to rage – and now Congress has taken up the reins. Recently we blogged on a handful of states that have passed laws that restrict employers from accessing passwords to private social networking accounts. Now Representative Elliot Engel (D-N.Y.) has introduced H. R. 537, the “Social Networking Online Protection Act.

Engel’s bill would make it illegal for employers to ask job applicants and employees for passwords to access their social networking sites and email accounts. If passed, it will address the concerns of 21 states that have similar legislation pending, and provide a national legal standard that has already been adopted in California, Delaware, Illinois, Maryland, Michigan, and New Jersey. [...]

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Background Screening Violations

Is K-Mart, the mega retailer known for its blue light specials, seeing red? The company is paying out $3 million to settle a class action suit for alleged background screening violations.  The suit was settled in mediation, and if approved, it will certify a class of 64,506 people. I did the math, and that’s about $18.09 per person, after the named plaintiff gets his share of $5,000 and his lawyers take out their share—$900,000.

K-Mart is the latest corporation to settle claims based on FCRA violations in the background screening process, joining First Student, Domino’s Pizza and Capital One. [...]

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Does anyone else feel like they blinked and January was gone? That’s definitely how I feel! We managed to catch the tail end of January to release the latest issue of By The Way. Angela Bosworth addresses questions like: What if an employer demands access to an employee’s private Facebook profile? Why are data brokers “wanted”? How accurate can a mobile app background check be? Read this issue of BTW to find out the answers and watch Angela’s summary of this month’s BTW. Monday we wrote about a new law for the state of Indiana which will require anyone applying for a teaching position to have a national criminal records background check. Nick also blogged about a two year case between the EEOC and Kaplan Higher Education that recently came to a close. See below to read more on these stories. Continue to stay tuned for more information for our February webinar featuring Jason Morris, Nick Fishman and Angela Bosworth, who will be presenting our 2013 survey findings.

 

BTW: January Issue- Privacy and Employment Background Checksemployment background check

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 Bosworth and is a must-read for human resources and security professionals. Read More

 

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