EmployeeScreenIQ Blog

If you’ve glanced at our blog at all this week, it’s easy to see that the news was alive and well with stories related to the background screening industry. Not only that, but we’ve been making final preparations for the 2013 Annual SHRM Conference in Chicago. The conference starts on Sunday, June 16^th and goes through Tuesday, June 18^th, so if you’re attending be sure to stop by Booth 1335 to say hello! Other stories to check out from this week include Collapsed Building in Philly Caused by Worker with a Criminal Record, NSA Leak Raises Questions About Background Checks for Information Technology Employees, EEOC vs. Dollar General and BMW: A Closer Look at the Legal Claims. As always, subscribe to our RSS feed to receive updates from our blog. Enjoy your weekend and hopefully we’ll see you at SHRM!

Collapsed Building in Philly Caused By Worker with a Criminal Record

Based on this photo, it’s apparent that this was an accident. And while accidents happen, they can also be prevented. In the background screening industry, we’ve often witnessed that the lack of a criminal background check eventually leads to trouble for employers, whether it’s on a small or large scale. Read More

NSA Leak Raises Questions About Background Checks for Information Technology Employees

Edward Snowden, the government contractor hired by Booz Allen, says that he leaked information about the National Security Administration’s (NSA) secret cyber-spying program designed to thwart terrorist attacks on the United States because he felt that Americans had a right to know about the program and debate its merits. Read More

EEOC vs. Dollar General and BMW: A Closer Look at the Legal Claims

The EEOC continued its crusade to fight discrimination by way of litigation this week. The agency has filed two lawsuits in federal courts in Illinois and South Carolina, accusing BMW and Dollar General of discriminatory use of criminal background checks. These lawsuits open a new chapter in the continued debate over the use of criminal background checks in the hiring process. Read More

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The EEOC continued its crusade to fight discrimination by way of litigation this week. The agency has filed two lawsuits in federal courts in Illinois and South Carolina, accusing BMW and Dollar General of discriminatory use of criminal background checks. These lawsuits open a new chapter in the continued debate over the use of criminal background checks in the hiring process. The commission is claiming that both companies have implemented criminal background screening policies that have the effect of discriminating against black applicants.

Background on the EEOC Guidance

These cases are the first significant cases to test the commission’s new guidance for the use of criminal background checks. The guidance, issued in April of 2012, has sparked controversy and confusion over when and how criminal background checks can and should be used. The guidance came out on the heels of some substantial settlements, including a $3.1M payout by Pepsi, based on the EEOC’s theory that certain policies, while neutral on their face, have the effect of discriminating against blacks and other minorities. The agency announced earlier this year that it would continue to focus on enforcement of the guidance, suing big employers for systemic discrimination by filing “disparate impact” cases. And true to their word, here are two new cases to test their theories.

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Many of you have seen the following statistic we regularly share to highlight how we stand out in a crowded marketplace:

EmployeeScreenIQ is accredited by the National Association of Professional Background Screeners (NAPBS), a distinction earned by less than two percent of all employment screening companies.

Someone recently raised the concern that this statistic was inaccurate and made it look as if our industry wasn’t serious about ensuring the highest level of compliance, best practices, accuracy, etc. when it comes to employment background checks.

So I thought I would take this opportunity to share the math behind our statistic, what accreditation means to employers and what accredited companies are doing to heighten awareness for this important program. [...]

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With the recent release of our article, “Screening Job Candidates via Social Media: Reckless Practice or Savvy Strategy?” we’re excited to announce our upcoming webinar on the same topic, The Risks and Rewards of Screening Job Candidates Through Social Media on Tuesday, June 4, 2013 2:00 PM-3:00 PM EDT. Our dynamic panel includes, Geoff Andrews, COO of Social Intelligence, Lisa Kaye, Founder & CEO of greenlightjobs.com, and from EmployeeScreenIQ, Jason Morris, President & COO, Nick Fishman, Chief Marketing Officer and Angela Preston, VP of Compliance & General Counsel.

So, why should YOU attend? Our webinar will cover these vital issues:

• The use of social media in the HR world
• The essential legal considerations for social media screening
• Seven do’s & don’ts for employers who want to use it
• The risks if your company doesn’t use social media
• Benefits of using social sites for screening candidates
• How to remain an employer of choice
• Best practices for your company

With differing views on this trend, our webinar will speak to both sides of this practice and help you answer the question-do the rewards outweigh the risks when screening candidates on social media? 

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EmployeeScreenIQ’s Weekly Wrap Up features content we post throughout the week with the latest updates and trends within the background screening industry. We know you might not have time to keep up with our blog throughout the week, so take a few minutes to read the highlights from the EmployeeScreenIQ blog. Earlier this week we posted, Should Employers Ask Candidates for Their Facebook Passwords? in relation to the recent bill that was passed by Congress, the Cyber Intelligence Sharing and Protection Act (CISPA). You’ll also find a post on our second Quick Takes video release, Is Your Background Screening Company a Fraud or the Real Deal? discussing what you need to know when evaluating or re-evaluating your background screening company. Lastly, we covered the FTC’s warning to ten data broker companies, stating that they are at risk for violating the Fair Credit Reporting Act, FTC Puts Background Screening Companies on Notice for Possible Privacy Violations.

Should Employers Ask Candidates for Their Facebook Passwords? 

The U.S. Congress recently passed the Cyber Intelligence Sharing and Protection Act (CISPA) which helps individuals protect their right to privacy and prohibits an employer from impersonating an employee online when other employees are interacting across social media platforms.  Removed from this bill at the last minute was a provision that would have banned employers from asking job candidates and employees for their social media passwords. Given the public sentiment on this issue, not to mention the media outcry, this omission is a big surprise to me. Read More

Is Your Background Screening Company a Fraud or the Real Deal? 

Background screening companies exist to help employers find reliable and trustworthy employees. Do you know what qualities you should evaluate when seeking a provider? Our experts discuss the fundamental requirements that should be on your checklist-whether you’re seeking a provider for the first time or re-evaluating your screening program. Jason, Nick and Kevin discuss several topics, including the notion of an “apples to apples” comparison, the importance of accreditation and how to separate marketing claims from the real deal. Read More

FTC Puts Background Screening Companies on Notice for Possible Privacy Violations

The Federal Trade Commission recently sent letters to ten data broker companies warning that their practices could violate the Fair Credit Reporting Act (FCRA) after a test-shopping operation by the FTC indicated the background screening companies were willing to sell consumer information without abiding by FCRA requirements. Read More 

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The Federal Trade Commission recently sent letters to ten data broker companies warning that their practices could violate the Fair Credit Reporting Act (FCRA) after a test-shopping operation by the FTC indicated the background screening companies were willing to sell consumer information without abiding by FCRA requirements.  It’s unclear what requirements they are accused of violating, but the commission included the following commentary in the release:

“Data broker companies that collect, distribute or sell this information are considered consumer reporting agencies under the FCRA, meaning they must reasonably verify the identities of their customers and make sure that these customers have a legitimate purpose for receiving the information. This requirement ensures that the privacy of sensitive consumer report information is protected. Of the 45 companies contacted by FTC staff in the test-shopper operation, ten appear to violate the FCRA by offering to provide the information without complying with the law’s requirements.”

In other words, background screening companies need to engage in proper due diligence to ensure they know who they are doing business with and establish that the entity has a permissible purpose to obtain the information.  Much of this information can be established through a compliant User Agreement.  But beyond the agreement are taking the proper steps to verify the information provided — things like conducting a 3rd party site inspection of the client’s place of business, independently verifying the client’s physical address, their phone number and the type of business they are engaged in.

According to the FTC release, “staff members posed as individuals or representatives of companies seeking information about consumers to make decisions related to their creditworthiness, eligibility for insurance or suitability for employment.”

Other FCRA requirements include certifying that their clients obtain a signed release from the subject of an employment background check, provide the subject with a summary of their rights under the FCRA, allow the subject to dispute the results of their search and engage in the prescribed Adverse Action process if they choose not to hire the candidate based on the outcome of their background check.

It is clear from these actions that the FTC is aggressively enforcing their background screening guidelines and in my opinion, for good reason.  These laws are designed to project all of us: job candidates, employers and background background screening companies.  Abiding by these requirements is just good business.

I am not suggesting that the companies that received these letters have blatantly violated FCRA law (in bold for those who accuse us of capitalizing on negative industry information).  These could be technical violations or misconstrued information by the FTC.  However it is important for employers to properly vet their providers so that they don’t unknowingly violate these requirements.

For more information on how to select a qualified provider, check out the following video:

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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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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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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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