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7

Avoid an FCRA Lawsuit

It’s not easy to keep up with the legal trends in employment background screening. One of those trends is the recent wave of lawsuits being filed against employers for violations of the Fair Credit Reporting Act (FCRA). The FCRA is a federal consumer protection statute that regulates the screening process. It’s not a new law, but the explosion of litigation and the increased scrutiny of employment background checks is new, and should be on every employer’s radar.

Investing in preventive FCRA compliance measures can really pay off, since recent settlements are costing employers millions of dollars. As a starting point, check out the top five things employers should know about the FCRA.

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timinig is everything

The Equal Employment Opportunity Commission (EEOC) says that the state of Texas needs to work on its timing. The agency has filed a motion to dismiss in the lawsuit that Texas brought against the EEOC late last year, claiming that the state has no right to sue and that the timing of the claims are premature. For those of you just tuning in, the entire State of Texas sued the EEOC last November, slamming the agency’s guidance on the use of criminal background checks. The case further ignited the firestorm of controversy that has surrounded the EEOC’s guidance since it was first issued in April of 2012.

The Texas Lawsuit

The state of Texas is not alone in its objection to the guidance. The agency has been aggressively targeting employers for disparate impact discrimination, and it recently filed high profile class actions against BMW and Dollar General Stores citing the guidance. Employers and courts have been critical of the agencies’ tactics, which have basically been sue first and sort it out later. In July of last year, nine states’ Attorneys General sent a complaint letter to the EEOC, calling their tactics “misguided and a quintessential example of gross federal overreach.”

The Texas suit takes the EEOC to task for stepping on the state’s toes and creating direct conflict with Texas laws that mandate criminal background checks. Both state agencies and private employers in Texas are prohibited from hiring convicted felons or certain types of ex-offenders for certain jobs—namely, jobs that require high levels of security and public trust. The state says that the EEOC’s guidance is harmful and could endanger public safety:

“If state agencies choose to comply with the EEOC’s interpretation, they not only violate state law, but also must begin evaluating and hiring felons to serve in law enforcement, teach in local elementary schools, nurse veterans and the disabled, counsel juvenile detainees, and coach little league.”

The Motion to Dismiss

In its Motion to Dismiss, the EEOC says that Texas got it all wrong. The brief cites 47 cases and starts out with six pages of background information–a sweeping tutorial on the agency’s long standing disdain for the use of criminal background information and disparate impact theory.

When it finally gets to the argument, there are three main points. The first argument is that the guidance is only “guidance.” As such, it has no legal effect. This is one of the standard responses that we hear from the EEOC—a response that conveniently creates an endless loop of circular logic, deflecting criticism by denying that it has any real authority. The agency lacks authority to issue substantive rules, therefore it has no ability to bind the plaintiff to any legal obligation. Tell that to Dollar General and BMW.

The second argument follows along the same line of reasoning—the state has no standing to sue, because it has suffered no real injury. The EEOC is saying the Texas’ claims are speculative, and there is no actual harm. Similarly, the third argument is ripeness–there has been no final agency action, and thus the claims are not ripe for litigation.

What’s Next

Procedurally, the EEOC is trying to stop this case dead in its tracks. The idea behind a motion to dismiss is that the claims made by the plaintiff are so lacking in merit that no answer is needed. The strategy here is to get the judge to agree that there is no reason to bother drafting an answer. There is a strong presumption against granting this type of motion, but at this point, it’s all up to the judge. Stay tuned on this one—we’ll keep you posted.








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Background Checks in Healthcare

With recent news coverage putting the spotlight on stricter background checks for senior caregivers and screening requirements (or lack thereof) for Obamacare navigators, the healthcare industry should be increasingly aware of the need for more comprehensive employment background checks.

Employers in the healthcare industry should be concerned about not only the safety of employees, but particularly the safety and wellbeing of the people they care for—the patients. Whether it’s a hospital, nursing home, or hospice, the healthcare industry is another industry in which employment background checks are more than just an asset—they are vital to protecting patients. EmployeeScreenIQ data shows that of those we screen in the healthcare industry, we find a 21% criminal hit rate, which is lower than our average hit rate of 28%, but this is obviously still a significant number of job candidates.

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Let me officially be the last person to wish you a Happy New Year! I have to admit that I’m not a big fan of New Year’s resolutions.  Why should you wait until January 1st to do something you should have been doing when you recognized a problem? Case in point, my least favorite New Year’s resolution is for those that vow to work out more. From February 15th through December 31st, there’s never a problem waiting for equipment at my gym. However, show up during the first 45 days of the year and a 45 minute workout turns into an hour and a half snore-fest. Don’t get me wrong. I’m all for getting into shape, but 45 days does not make a year.

All that said, I have a challenge for you (since I don’t believe in New Year’s resolutions:)). I strongly encourage all human resources professionals resolve to evaluate your company’s employment background screening program from top to bottom in 2014.  The sooner, the better. And lest you think this is a sales pitch, it most definitely is not.  What I am talking about is evaluation of your processes.

Top 10 Items to Consider When Evaluating Your Employment Background Screening Program

  • When was the last time you evaluated your background screening policies and procedures?
  • Are all incoming employees subject to an employment background check?
  • Is the background screening criteria used relevant to the position you are hiring for?
  • Have you clearly defined parameters for what information constitutes a non-hirable offense by position?
  • Are you affected by the myriad “Ban the Box” Laws throughout the country which prohibit you from asking if the candidate has been convicted of a crime on the job application?
  • If so, have you worked that question into a different part of the hiring process?
  • Are you using the proper disclosure forms required by state and federal laws?
  • Are you sure that you are following proper Adverse Action procedures when you deny employment based on the outcome of an employment background check?
  • When was the last time you audited your background screening company for accuracy and compliance?
  • Have you developed the proper procedures to comply with the EEOC requirement for individualized assessment?

Why Should You Care?

Not more than a month went by in 2013 when we didn’t see a marquee press release announcing a multi-million dollar suit being filed against an employer for allegations of violating the Fair Credit Reporting Act in conjunction with their employment background screening practices or discrimination in hiring practices for the same.

Whether these companies being sued are guilty or not, the cost to defend these allegations and the negative publicity surrounding these cases should be a big red flag for all. Class action attorneys have found a new target and they are circling like sharks. Most employers are doing things properly, but there has never been a better time to make sure that you brush up on your responsibilities when it comes to employment background checks.









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With a new year just around the corner, there’s no better way to move forward than to reflect on the events, challenges, and growth of the past year. Particularly for the background screening industry and HR professionals, it’s essential to learn from these stories to prepare for the challenges ahead in 2014. Some of our top stories include the misuse of employment background checks, the ban the box movement, and screening candidates on social media. Keep the lessons in these stories under consideration as you move forward with your background screening program in 2014.

EmployeeScreenIQ's Top Background Screening Stories 2013

1. EEOC Targets Dollar General and BMW for Criminal Background Checks

The EEOC continued its crusade to fight discrimination by way of litigation against Dollar General and BMW. Take a closer look at the claims and what employers need to know. Read More

2. Texas Takes on the EEOC: The Case You’ve Been Waiting For

Texas is took on the EEOC claiming that the latest guidelines unlawfully limit the ability of employers to exclude convicted felons from employment. Read More

3. Cha-Ching! K-Mart to Pay $3 Million to Settle Background Check Claims

Charged with background screening violations in relation to adverse action notifications, employers need to be increasingly aware of compliance risks in 2014. Read More

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Criminal Record

If you missed our webinar this past Tuesday, you’re in luck—we have a complimentary recording available for download. We had an action-packed hour with veteran HR executives L. Gordon Paisley from United Airlines, Tammy Henry from Walmart and background screening experts Jason Morris, Angela Preston, and Nick Fishman from EmployeeScreenIQ. What is this webinar all about? Keep reading.

When a background check reveals that your job candidate has a criminal record, how do you respond? Company hiring practices have fallen under increased government scrutiny and it’s critical that you understand the implications of your actions – and have a proactive process in place to address these unique hiring situations.

To learn more, watch our recorded webinar, “My Candidate Has a Criminal Record. Now What?” This session will demonstrate the steps you must take when a candidate’s background check uncovers adverse information. In the webinar, we discuss important legal considerations and share practical advice for developing a safe and compliant hiring protocol.

This Webinar Addresses:

  • Precautions to ensure their organization’s hiring practices are legally compliant with FCRA & EEOC requirements
  • Essential considerations before making a hiring decision on a candidate with a criminal record
  • Best practices for individualized assessments and adverse action

Download the webinar recording here

Employment Screening Trends Survey

We would also like to invite you to take part in our 5th Annual Employment Background Screening Trends Survey. Take our survey and share your insights on some of the most talked-about issues shaping hiring practices and the background screening industry. The survey will take just a few minutes of your time and your feedback will help inform your professional peers. You will also receive a free executive summary of the results for your participation and be entered to win one of two $250 American Express gift cards!








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Criminal Background Check Compliance

We’re guilty. From time to time, we use the space in this blog to promote our company events such as webinars, surveys, special awards, etc. And while we are very excited and passionate about what we do as a background screening company, we try not to cross the lines of over-promotion (only you can tell me if we’ve done a good job with this).

Today, I’m going to depart from that philosophy and shamelessly promote our upcoming webinar, “My Candidate Has a Criminal Record: Now What?”. The reason I am doing this is because human resources professionals cannot afford to miss this one. Not more than a month has gone by this month this year where we haven’t seen a marquee press release announcing a multi-million dollar suit being filed against an employer for allegations of violating the Fair Credit Reporting Act in conjunction with their employment background screening practices or discrimination in hiring practices for the same.

Whether these companies that are being sued are guilty or not, the cost to defend these allegations and the negative publicity surrounding these cases should be a big red flag for all. Class action attorneys have found a new target and they are circling like sharks. Most employers are doing things properly, but there has never been a better time to make sure that you brush up on your responsibilities when it comes to employment background checks.

Our panel of experts includes Gordon Paisley from United Airlines, Tammy Henry from WalMart and Jason Morrris, Angela Preston and yours truly from EmployeeScreenIQ. We’re going to talk about how to develop a compliant hiring matrix, what should be considered when determining if a criminal record should disqualify someone from employment, the proper steps you need to follow when sending adverse action notifications and how to perform individualized assessments.

The webinar is free and if early response from your peers is the nudge you need (we already have 500 people signed up), then please take it.

As you can tell, I’m very passionate about this topic. If I’ve violated the blogger compact of promotion, I sincerely apologize. We just want to see less press releases alleging violations of legal background screening practices so that we can focus on the tremendous benefits that a comprehensive and compliant background screening program can have on your hiring practices.

All the info you need about the webinar is listed below:

To make intelligent hiring decisions, your company conducts employment background checks. It makes sense that you want to know all of the information on your candidate before making a final hiring decision. But then—it all comes down to the results. When a background check reveals that your job candidate has a criminal record, how do you respond?

Company hiring practices have fallen under increased government scrutiny and it’s critical that you understand the implications of your actions – and have a proactive process in place to address these unique hiring situations. So what are best practices for protecting your company?

On December 10th, join EmployeeScreenIQ for a complimentary webcast entitled, “My Candidate Has a Criminal Record. Now What?” This info-packed session will demonstrate the steps you must take when a candidate’s background check uncovers adverse information. Our featured panelists are, veteran HR executives L. Gordon Paisley from United Airlines, Tammy Henry from Walmart, and background screening experts Jason Morris, Angela Preston, and Nick Fishman from EmployeeScreenIQ. Join us while we discuss important legal considerations and share practical advice for developing a safe and compliant hiring protocol.

Attendees will learn:

    • Precautions to ensure their organization’s hiring practices are legally compliant with FCRA & EEOC requirements.
    • Essential considerations before making a hiring decision on a candidate with a criminal record.
    • Best practices for individualized assessments and adverse action.




By attending this webinar, you will receive 1 HRCI credit.

HRCI

The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.

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Criminal Background Check Compliance

To make intelligent hiring decisions, your company conducts employment background checks. It makes sense that you want to know all of the information on your candidate before making a final hiring decision. But then—it all comes down to the results. When a background check reveals that your job candidate has a criminal record, how do you respond?

Company hiring practices have fallen under increased government scrutiny and it’s critical that you understand the implications of your actions – and have a proactive process in place to address these unique hiring situations. So what are best practices for protecting your company?

On December 10th, join EmployeeScreenIQ for a complimentary webcast entitled, “My Candidate Has a Criminal Record. Now What?” This info-packed session will demonstrate the steps you must take when a candidate’s background check uncovers adverse information. Our featured panelists are, veteran HR executives L. Gordon Paisley from United Airlines, Tammy Henry from Walmart, and background screening experts Jason Morris, Angela Preston, and Nick Fishman from EmployeeScreenIQ. Join us while we discuss important legal considerations and share practical advice for developing a safe and compliant hiring protocol.

Attendees will learn:

    • Precautions to ensure their organization’s hiring practices are legally compliant with FCRA & EEOC requirements.
    • Essential considerations before making a hiring decision on a candidate with a criminal record.
    • Best practices for individualized assessments and adverse action.








By attending this webinar, you will receive 1 HRCI credit.

HRCI

The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.

Continue Reading

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Resource Page

If you follow EmployeeScreenIQ’s Blog and subscribe to our emails, you know we strive to provide clients and casual observers alike with the latest news and trends in employment background checks. With our knowledge and experience, we fill our Compliance Resource Page to the brim with educational resources to keep human resources, security, and risk management professionals equipped with information needed to keep their HR engines running smoothly.

While these resources were available before, we recently gathered the most pertinent compliance resources to create a user-friendly corner of the EmployeeScreenIQ website.

Visit our Compliance Resource Page for:

Compliance Resource Center: This page features several essential items needed for your organization to stay in compliance, including important downloads, the latest issues of By The Way, legislative updates, and more.

Media Center: This resource features the most recent educational materials created by EmployeeScreenIQ—including white papers and webinars.

EmployeeScreen University: The #1 central resource for HR, security, and risk management professionals alike to find educational information related to employment background checks. We regularly post on a variety of compliance topics, including the latest news and trends in the industry.

IQ Blog: The EmployeeScreenIQ Blog offers human resources and risk management professionals a 360-degree analysis of the evolving trends, ever-changing legislation and innovations in the world of employment background checks, with an occasional opinion or two and attitude mixed in. Our blog rarely goes a week without a new post—so don’t miss out.

Court Delays: There are a multitude of reasons for court delays from holidays to specific locations experiencing delays. We post these updates on this page as we become aware of them, so check back frequently if you think a court delay might be affecting your background check.

Case Studies: EmployeeScreenIQ serves an impressive roster of over 3,000 clients worldwide encompassing all industry segments. Our clients range from Fortune 100 organizations screening several thousand people per month to small businesses with occasional screening needs. Please review some of our recent case studies which highlight how EmployeeScreenIQ has made a difference for the organizations we serve. Be on the lookout for upcoming case studies in the near future.

Visit our Compliance Resource Center here.









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Disney Background Checks

The company known for their signature character, Mickey Mouse, is defending a class action claim based on questions about its background screening policies. The suit against Disney was filed in the Superior Court of California on November 1, 2013, and the complaint alleges that Disney’s policy for notifying applicants about background checks has violated the Fair Credit Reporting Act (FCRA).

The case is part of a bigger trend—the exponential rise in FCRA-based class action claims. The suits have been on the rise for a few reasons. The widespread adoption of employment background checks by companies over the past 10-15 years has justifiably raised awareness about the screening process. FCRA litigation is a “new” area that the trial bar seems to have only recently discovered. With statutory damages, attorney’s fees, punitive damages and costs as well as actual damages, these class actions are much more lucrative than individual plaintiff cases. Disney is not the only large scale employer to be singled out—other household names like Kmart, Domino’s, Swift Trucking, Dillard’s and Rite Aid have all been called out in FCRA-related allegations.

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