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It has been seven months since the EEOC issued new guidance on employers’ use of criminal background checks. There has been quite a bit of information released since then and we wanted to take a few moments to share some of the feedback we’ve received from our clients since May. See also our blog post and webinar on the topic.

We’re hearing that the EEOC guidelines on criminal records have caused tremendous confusion among our clients.  There are three main areas that are causing the most confusion. First, the EEOC recommends as a best practice that employers abolish the job application question that asks if the person has been convicted of a crime.  This recommendation is not feasible for many employers who have bona fide job qualifications that require exclusions based on certain types of crimes. Employers are understandably confused about when they can and should ask about criminal history and request a background check. Delaying the question can cause both the employer and the candidate to invest heavily in an opportunity or even quit their job only to be disqualified later in the process.

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I know that this post might look familiar, but there is some updated information you’ll want to check out.  You might recall that the The Consumer Financial Protection Bureau (CFPB) issued new notices this past August which would be required by the Fair Credit Reporting Act effective January 1, 2013.  Well, that’s still the plan, but we were just notified that the forms changed . . . again.  Listed below is our original post with the updated forms.  Again, please remember that these new forms are a requirement beginning on January 1, 2013. [...]

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The National Association of Professional Background Screeners (NAPBS), of which we are accredited member, just released their tips for conducting employment background checks in 2013.  We are particularly thrilled that see that being thorough and accurate is their number one suggestion.  I’ve listed their top recommendations below and encourage human resource, talent management, loss prevention and risk management professionals to check out the complete release.

The National Association of Professional Background Screeners (NAPBS) and its members are committed to ensuring the highest degree of accuracy and professionalism when it comes to background checks. To that end, NAPBS offers the following best practices intended to benefit employers and job seekers who are planning for 2013: [...]

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With NBC’s Today Show report on the negative side to background screening companies, another case arose this past week with the story of Darlene T. Martinez of Arizona, who was denied a job due to an inaccurate background check. After the NBC report, many background screening companies, including EmployeeScreenIQ responded confirming that, yes, companies in our industry do make mistakes sometimes. While we can’t speak for our competitors, our company does everything possible to conduct a complete and accurate background check, especially when it comes to criminal records. However, for Darlene, the mistake in her background check not only cost her a job opportunity, but caused additional hardships for the months that followed.

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What are labor and employment attorneys around the country advising their clients to do when it comes to complying with the revised EEOC guidelines for employers who conduct criminal background checks (issued in April 2012)?  Judy Greenwald from the Crains’ publication, Business Insurance, polled some of the nation’s leading experts on employment background check laws in her article, “Employers advised against automatic hiring ban on people with criminal backgrounds”.

Substantive advice has been hard to come by since the guidance was first released, so we definitely think employers should take a minute to review the highlights below.

  • “The one thing the policy should definitely state is that there is no automatic ban” for an applicant with a criminal conviction, said Amy L. Bess, a shareholder with law firm Vedder Price L.L.P. in New York.
  • Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said she recommends employers remove any questions about criminal history from their application forms altogether and move it to a later stage, such as after the job interview or upon a conditional offer of employment.
  • Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said, “I would also document in your policies why certain convictions, certain types of criminal history” would disqualify a job applicant, he said.
  • “Try to make sure there’s a connection between a demonstrable job requirement, and any restrictions that (the employers) are putting in place with respect to criminal history,” said Marc A. Mandelman, senior counsel with law firm Proskauer Rose L.L.P. in New York.

View Full Article 

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Last month, we posted a story about a Wells Fargo Bank employee, Richard Eggers,  who was terminated from their position as a mortgage customer service rep for a crime a minor theft crime that was committed in 1963.  The bank’s hands were tied because Federal Deposit Insurance Corporation (FDIC) guidelines dictate that people that have been convicted of crimes involving theft, deception or dishonesty are not eligible for employment.  If the bank would have retained this gentlemen, they could have faced criminal charges and millions of dollars in fines.

The employee filed a lawsuit against the bank, the FDIC and the background screening company that performed the employment background check.  Today, we learned that the FDIC granted a waiver to Eggers clearing the way for him to be employed by Wells Fargo, or any other financial institution.

I think this is great news and I hope that Wells Fargo rehires him.

The vultures are clearly circling here.

Here’s what I don’t like.  Eggers’ attorneys are setting the stage for a class action lawsuit against the FDIC, the bank and the company that performed the employment background check.  A document filed by Eggers’ attorney with the Iowa state Civil Right Commission included the following passage:

“This complaint is intended to place Wells Fargo, First Advantage, and the FDIC on notice of class-wide intentional and unintentional forms of systemic discrimination affecting protected classes of applicants and employees who are adversely affected by the above-mentioned background check policy,”

Sorry, but I smell a rat.  First, the bank did nothing wrong by following the FDIC’s guidelines.  None of us like the fact that Eggers was terminated, but if we faced similar repercussions  we’d all do the same thing.  If the bank chooses not to hire him back due to the conviction, then they have a problem on their hands.  But I highly doubt they would do that.  From the background screening company’s standpoint, they simply reported the information they found.  It was accurate and it was legally reportable.  And, they had nothing to do with the hiring decision. How could they possibly be held accountable for doing their job?

If anyone bears responsibility here, it’s the FDIC, but even they have corrected their actions by granting the waiver.  However, they too have a responsibility to protect consumers.  They may have done so too broadly and my guess is that they will make these waivers a little easier to obtain in the future.

Last thought, and I’ll thank Angela Bosworth for the assist on this one, but who would be the protected class on this one?  Eggers isn’t a minority.  If anything, they could claim age discrimination.  How many older people have been denied employment by the bank because they had a similar criminal record?

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On September 27th, California became the third state (joining Maryland and Illinois) to ban employers from asking for login and password information to access social networking accounts. The law, AB-1844 takes effect immediately, and bans requests for log-ins and passwords for employee background checks and throughout employment.  A similar measure, SB-1394 provided the same directive to university’s when it comes to screening students.

The law, signed by Governor Jerry Brown last week bans a practice that, with few exceptions, is not actually a common practice at all. A few well-publicized incidents of prospective employers asking for passwords prompted a wide-spread outcry by—well, by pretty much everyone.  As we have opined countless times–asking for passwords is a bad practice. The consensus is that employees and job applicants have a right to keep their private social media secrets under wraps.  I guess I have no problem with law, but just like the state of Illinois, California has much, much bigger fish to fry.

According to the Governor Brown’s press release, “Proponents of Assembly Bill 1844 say this is a common-sense measure that will bring clarity to a murky area of employment law and stop business practices that impede employment.”

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

Our October issue is a must-read as it informs you about the new employment background check forms that the Consumer Financial Protection Bureau (CFPB) will require beginning on January 1, 2013.  For a preview of these changes, check out Angela’s video below.

Download the October Issue Here

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We know that HR professionals are constantly looking to increase their awareness on the latest pre-employment background screening industry trends, legislation, compliance and best practice tips.  And while we are proud to offer these resources on our website and through EmployeeScreen University, we know that you don’t always have the luxury of sitting in front of your computer.

So now, there’s an app for that!

Introducing the iEmployeeScreen app which allows you to follow your favorite EmployeeScreenIQ articles, white papers, blog posts, etc. and enhances that experience by allowing you to post your own employment background check articles, download free HR and background screening forms, add future EmployeeScreenIQ conferences, events and speaking engagements to your calendar and much more.

Download Here 

 

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Employment background screening compliance can be a full time job if you don’t have all the resources.  Thankfully, we work hard every day to try to condense the important stuff so that human resource professionals can get their compliance fix and move on to other important strategic initiatives.  It is with that in mind that we have refined our Resources page to act as your gateway to the important laws that affect your use of employee background checks; specifically the Fair Credit Reporting Act (FCRA) and EEOC guidelines among others.

You can also use this page to get our latest legislative updates, download our latest compliance newsletter, and keep informed any court delays.

So, leave the heavy lifting to us. (And of course, our VP of Compliance and General Counsel will stalk me if I mention that we are not providing legal advice.  You know the rest . . .)

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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.