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The National Association of Professional Background Screeners (NAPBS) met last week in Washington D.C. for the 2014 Legislative and Regulatory Conference. The conference brought together over 300 background screeners, regulators, and lawmakers for an annual event in the Capitol. Note that this recap includes observations based on my role with EmployeeScreenIQ and reflects my views as a provider of background checks—the content of this post does not reflect the views of NAPBS.

The conference kicked off on Monday April 7th with two polar opposite keynote speakers. The Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien addressed attendees first and was followed by a dramatically different message from Georgia Attorney General Sam Olens. So, how were these two speakers received? Let’s just say that only one speaker received a standing ovation—and it wasn’t Chair Berrien.

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Rescreening Employees

Before hiring a candidate, you order an employment background check. Let’s say the results come back clean in every area—criminal background, resume verification, and drug screening. Your candidate also meets the requirements and skills needed for the position, so you decide to move forward. Now the question is…is a one-time background check enough? Maybe, maybe not.

You make a hiring decision based on the information you have at the time of hire, and as I’m sure you already know—people and circumstances change over time. That being said, it’s important to maintain a safe work environment by not only screening new employees, but current ones as well.

3 Reasons to Re-Screen Employees

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We’re pleased to announce the successful completion of our three-year Interim Surveillance Audit for the Background Screening Agency Accreditation Program (BSAAP) with the National Association of Professional Background Screeners (NAPBS) Background Screening Credentialing Council (BSCC). I’m fully aware that that was a mouthful, so let me restate in English:

EmployeeScreenIQ has successfully demonstrated continued compliance with the BSAAP’s Accreditation Standards and will continue to be formally recognized as BSCC-Accredited. This recognition represents EmployeeScreenIQ’s continued commitment to excellence, accountability, high professional standards and continued institutional improvement.
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Compliance Pre-employment screening

For those interested in staying up-to-date with the latest in compliance for pre-employment background screening and the laws that affect your use of employment 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.

The March issue of BTW features our article, No Evidence of Injury Required: Spokeo Loses Appeal in FCRA Claim. Angela shares the details of a four-year-old case against Spokeo, charged with providing inaccurate information to employers and recruiters. Read More

Our second story brings you information on the recent agreement established between the New York Attorney General Eric T. Schneiderman and four of the largest background screening companies in the country. Beginning with the accusation that these companies were sending automatic rejection letters to candidates with criminal records, this agreement was created to end this practice. Read More

Our third story shares the news that yet another city has “banned the box.” The city of San Francisco will soon limit employers from asking candidates about criminal history until after the first in-person interview. Read More   

 

March BTW

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Compliance Employment Background Checks

You may already know that Fair Credit Reporting Act (FCRA) litigation has picked up some steam over the past year. While recent class actions continue to grab the headlines, an appellate ruling in a four-year-old case is causing a buzz.

Injury In Fact?

Spokeo makes an encore appearance here in BTW as the defendant in a case that has been festering in the 9th Circuit Court of Appeals. It’s an FCRA case, and the issue is damages.

The last time we checked in with Spokeo, the company was losing the battle with the Federal Trade Commission (FTC) over whether or not it was a consumer reporting agency that could be held accountable for providing employment reports under the FCRA. The company paid a substantial fine ($800K) for its trouble, and was sued for allegedly reporting misinformation to employers and recruiters on its website.

A complaint, originally brought by Thomas Robins on behalf of a class of similarly situated individuals, alleged that inaccurate information on Spokeo’s website was a “willful” violation of the FCRA. Spokeo was initially successful in arguing that the plaintiff’s claims were without merit since Robins, while admittedly unemployed, had not suffered any “actual or imminent harm”—a required element of a cause of action under the statute. Read more about that decision almost two years ago here.

At long last we have a decision on the appeal. In a surprising decision, the appellate court overturned the decision, lowering the threshold of actual damages for future FCRA claims.

How low, you ask?

How about NO damages? Zero. Zip. It doesn’t get much lower than that.

The Facts About Mr. Robins

Robins alleged that his Spokeo profile included a laundry list of inaccuracies: wrong age, wrong marital status, and wrong photo. Not all of the information was negative or even unflattering. Interestingly, the website reported that he had a graduate degree (he did not), that his economic health was “very strong” and that his “wealth level” was in the “top 10%”—all false, according to the plaintiff.

Call me crazy, but if I found out that a website was misleading the world into thinking I was a member of the highly paid, elite, upper echelon of society, I might not complain. But Robins made a good point—while being financially stable is not considered a negative (at least by most people), it doesn’t exactly help your job prospects to have a web site touting your great wealth.  The unemployed Robins claimed that the inaccurate information was costing him jobs, “causing actual harm to Plaintiff’s employment prospects” as well as “anxiety, stress, concern and/or worry about his diminished employment prospects.”

The Appellate Decision

Spokeo argued throughout the litigation that Robins had no claim under the FCRA because he made no showing of actual harm. But the Appellate court found otherwise. It held that because the allegations were for willful violations and statutory damages, and statutory causes of action do not require a showing of actual harm when a plaintiff sues for willful violations, no actual harm was needed.

The court cited the statute’s language at 15 U.S.C. § 1681n(a):

Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to . . . damages of not less than $100 and not more than $1,000 . . . .”).[i]

The court’s decision hinged on the claim of willful violations and a claim for statutory damages only. It completely sidestepped the issue of whether Robin’s alleged harm to his employment prospects or related anxiety could be sufficient injuries in fact. Robins and Spokeo now go back to the drawing board—in district court.

Word to the wise: This case is sure to add fuel to the fire for FCRA claims, opening the door for additional plaintiffs making claims for willful violations without having suffered any actual harm or injury in fact.

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Compliance Criminal Background Check

To hire, or not to hire…that is indeed the question. Employers review qualifications, skills, and typically, the results of an employment background check to determine if a candidate is not only eligible for a position, but if they would be a good fit for the company.

For most companies, it goes without saying that you should conduct employment background checks to verify education and employment, confirm credentials, and search criminal history. However, when the background check results come in and a criminal record is found on your candidate’s background check—what steps should you take?

Our new guide, Keep It Legal: 5 Steps to Compliance When Your Candidate Has a Criminal Record, will help you to develop a policy designed to improve your hiring practices and keep legal peril at bay.

Download the article to learn more about:

  • EEOC and FCRA regulations and other legal considerations
  • Developing a hiring matrix with consistent guidelines
  • Navigating the ins and outs of individualized assessments
  • The two-step adverse action process
  • Handling candidates who dispute background check results





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Last week a press release from the New York Attorney General’s office raised some eyebrows about background screening practices—not an uncommon headline these days. The release announced that “four of the nation’s largest background check agencies” entered into an agreement with New York A.G. Eric T. Schneiderman concerning compliance with New York laws designed to protect job applicants from discrimination.

The agreement prohibits the firms from engaging in the automatic disqualification of applicants who have criminal backgrounds—something that we can all agree is a bad practice. Based on the information contained in the press release, the named companies were called out for sending automatic rejection letters to candidates with criminal records.

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Compliance Employment Background Checks

For those interested in staying up-to-date with the latest in compliance for pre-employment background screening and the laws that affect your use of employment 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.

Our February issue of BTW features Avoid a Lawsuit: 5 Things Employers Should Know About the FCRA. Angela shares the five things employers must be aware of in their background screening program in order to avoid becoming one of many companies facing a lawsuit. Read More.

And speaking of lawsuits, Whole Foods Market is the latest example of a company being targeted by the FCRA for their improper use of employment background checks. Read More.

This issue also brings the story, State of Texas vs. the EEOC: Is Timing Everything? The state of Texas recently went after the EEOC for its guidance on criminal background checks, but the outcome has not proven successful. Read More.

Lastly, in response to several questions we receive on the EEOC Guidance, Angela provides answers for specific questions related to the guidance in this month’s Ask Angela response, Two Years Later: Questions on the EEOC Guidance.

Read the February issue of BTW here.

 

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Whole Foods Market was just inducted into a growing club where no one wants to be a member. The giant food retailer is the latest target of a class action law suit for alleged violations of the Fair Credit Reporting Act (FCRA). Whole Foods is in good company, joining other reluctant club “members”—national companies like Disney, Domino’s Pizza, CVS, K-Mart. One of the big trends we are following in 2014 is the deluge of FCRA-related employment background screening lawsuits. This week the trend continues.

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EEOC Guidelines Employment Background Checks

Despite the two years that have passed since the EEOC clarified its guidance on the use of criminal background checks, there’s still a lot of confusion out there. I am hearing from many employers struggling with how to draft and implement a background screening policy that 1) protects their organization 2) is fair to job applicants, and 3) will stand up to an EEOC enforcement action. Below are a just a few of the questions that I’ve been hearing recently.

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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.