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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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Screenshot of webinar - Job Applicants Do the Darndest Things: How HR Can Spot Candidates Who Game the System

Last week I had the privilege of attending an enlightening discussion led by Robert Johnson, Director of Economic Analysis at Morningstar, on today’s labor market and how the greater economy continues to impact employment.  And one of the seminal messages communicated was that we should all stop reading the news paper.

Sure, the economy isn’t great and unemployment is still too high, but Johnson talked about some of the fundamentals that aren’t being reported.  For instance, unemployment is at just 4% for those who have a college degree.  He pointed out that are a number sectors that can’t hire enough people, highlighting the fact that it is becoming impossible to fill some of the available positions (i.e. engineers or nurses).  He talked about how the economies in Europe and Asia are far worse off than we are and how us consumer confidence and spending has been brisk for quite some time.  And the big observation was that the housing sector appears to be on the rise.  Put all of these factors together, and Johnson is encouraged by the prospect of continued job creation over the next year.  That’s great news for all of us.

As I had an opportunity to digest this information, my prevailing thought was that employers will again have to return to ensuring the best possible candidate experience.  To their credit, many have recognized this and “improving the candidate experience” has been HR’s favorite buzz phrase for a while now.  In most instances, employers have embraced this concept and made the hiring process better.  But there is one key area we still think the candidate experience is being overlooked and that is applying it their employment background screening process.

We have a few ideas in this regard and thought we would take the opportunity to update an article we published a couple years ago on the topic.  Everything starts with the premise that no matter if you have something to hide or not, an employment background check can be a scary process.  We’ve all seen stories about people being turned away from jobs based on information that belonged to someone else.  In some cases, these people weren’t afforded their rights to dispute the information.

You Had Me At Hello: Background Screening, Your Brand and the Candidate Experience, is a must-read for employers and HR professionals. The article reveals how background checks can directly impact your company’s image with candidates, both positively and negatively, and how to enhance and protect your brand through transparency, verification and proper selection of a screening firm.

Download the Article Here

 

 

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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 September issue features story offers a cautionary tale for employers who conduct employment background checksWhen Background Checks Go Bad: FTC Levies $2.6 Million in Fines.    

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Many employers struggle with the question of whether they should perform a criminal background check under the candidate’s current name or if it should be expanded to include alias names or AKA’s (i.e. maiden name, nick names, etc.).

Of course, it’s important to bear in mind that nearly every U.S. court files records by the name the person was using at the time of the conviction.  However, in some very rare instances you could pick up convictions that were filed under an alias name.

For instance, famous pop music star Prince has also gone by the following names: Prince Rogers Nelson, Jamie Starr, Christopher, Alexander Nevermind, Joey Coco, Prince logo.svg (not a typo, he actually referred to himself as this symbol), The Artist Formerly Known As Prince and The Artist.  So if your conducted a background check on “Prince”, you wouldn’t find a record that was filed under the name Joey Coco.  Just to clarify, I am not aware of any crimes committed by Prince.  By all accounts, he a normal (maybe not), law-abiding citizen.  Now, this is a fairly ridiculous example because who has this many names and in fairness, only a couple of these would have been legal names.

That said, we wholeheartedly tell our clients that if you want to conduct a comprehensive search, it is always best to include additional names.  These names can be identified using a combination of that which is provided to you by the candidate and that which is found on an address history or social security number trace.

Based on our exhaustive research, here are the numbers that should guide your decision.

Records Found Under Alias Names Only (for any type of criminal record search: county, state, national, etc.)

  • If a record is filed under an alias name and that name is not searched, you will miss the record 89% of the time.
  • Conversely, only 11% of the time will a record be found under an alias name if that specific name is not searched.
  • On average, 12% of all the records we find at EmployeeScreenIQ are felonies.  However, 25% of the records we find under alias names are felonies.

National Criminal Database and Alias Name Hits

  • 79% of applicants with hits were based on the current name only.
  • 21% of applicants had alias names listed as well as the current name. Zero records were returned with an alias name only.
  • The national database will not find records under alias names, if the alias name was not originally part of the search.
  • The national database will not find records missed at the county level because clients declined to run alias names.

So when it comes down to it, the numbers don’t lie.  Any time you conduct an employment background check, you should definitely consider all of the names identified by the candidate and on the address history search.  Do this and you will dramatically increase your ability to thoroughly vet the candidate and hire with confidence.








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Raise your hand if you think business executives should be “spared the embarrassment” of an employment background check.  Earlier this summer we held a panel discussion on the things job applicants will do to cheat a background check.  One of our panelists, Lisa Kaye from greenlightjobs.com, shared a story about her time as a chief human resources officer at a major entertainment company in which she was told not to conduct a background check on a potential C-level candidate.  She fought them tooth and nail, and ultimately did a little digging by connecting with some of her colleagues from the company the candidate worked for.  Long story short, the feedback she got from more than one person was that she was totally unqualified the role.  Imagine how grateful Lisa’s colleagues were when she reported what she found and they decided not to move forward with an offer.

Okay, now raise your hand if you still think employee background checks shouldn’t be conducted on business executives.

Still not convinced?  Check out HR Executive’s article, “Vetting at the Top”.  It’s a brilliant piece on why screening should be more meticulous on business executives compared to the rank and file.  See excerpt below. We’ve all seen the results when high profile execs are not thoroughly vetted; Yahoo’s Scott Thompson, Radio Shack’s David Edmundson, Notre Dame’s George O’ Leary, etc.  And if candidates for these positions are offended by this process and don’t understand why this needs to be done, perhaps they aren’t the right man or woman for the job.  I know we recently performed a search on a potential CFO candidate for a major Fortune500 organization.  The background check actually took a while to complete because the person had lived outside of the U.S. for a period of time.  Both our client and their candidate stuck with the process and only when the check came back without any blemishes did both parties proceed.

Vetting at the Top by Will Bunch

Tracy McCarthy, currently the senior vice president for human resources at Chicago-based SilkRoad technology inc. — with a 20-year background in the HR field (including as a CHRO at a mail-order retailer and in HR leadership posts at other retailers) — says one of the worst pieces of advice she’s ever received came during an earlier job when her 200-employee company was searching for a new CEO.

A leading and well-known candidate had emerged for the post and a board member told McCarthy there was no need to run a very extensive background check. “They said that we shouldn’t do that, that a background check would be insulting, that this is a known person,” says McCarthy, whose current employer, SilkRoad, offers HR services to high-tech firms.

McCarthy says she went ballistic at the suggestion. “I said I think we owe it to ourselves, and our investors, to do an extra, extra deep background search — to look at everything that might be out there,” she says.

McCarthy — and other human resource executives and experts — say double- and even triple-checking a C-suite job candidate’s resume, references and educational background isn’t just a way to spare the company from future embarrassment; it also offers career protection to the candidate who might be able to correct a resume error before it becomes an indelible stain on his record. And some experts argue that problems with the hiring of the very top executives run deeper than the resume, that candidates should be psychologically assessed and past co-workers should be mined better for information.

Earlier this year, the business world learned, yet again, just what can go terribly wrong when candidates for the highest-level jobs are not properly vetted. In May, Scott Thompson had been CEO of the large but troubled Internet-content giant Yahoo! for just four months when an activist investor challenged his educational background as listed in one of the firm’s filings with the U.S. Securities and Exchange Commission.

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FTC Flexes its Muscles with Criminal Backgrounds: Employers Take Note

Earlier this week,  the Federal Trade Commission (FTC) announced a settlement with background screening giant, HireRight. The scenario is pretty much every compliance officer or in-house counsel’s worst nightmare. The company has signed a consent decree that requires it to pay $2.6 million in penalties. Along with the payment, HireRight has to submit to monitoring by the FTC, is enjoined from some allegedly bad practices, and agrees to regular reporting and ongoing investigation by the agency for at least five years.

The FTC charges that the company violated the Fair Credit Reporting Act by failing to use reasonable procedures to assure the maximum possible accuracy of criminal background check information it provided, failing to give consumers copies of their reports, failing to re-investigate consumer disputes, and failing to sufficiently notify consumers when public record information is used in a background check.  In plain English, the FTC is saying that consumers were denied protections that are required under the law.

While the consent judgment does not admit any wrongdoing, the company has agreed to cease certain practices, and they are paying a hefty fine, to boot. For more of the legal nitty gritty, our friends in the privacy practice group at Arnall Golden Gregory LLP have done a great job of laying out the statutory violations here.

Up until now, the FTC’s investigation and enforcement of the FCRA, specifically the accuracy of consumer reports, has not shown much muscle. It’s been focused more on credit reports than criminal backgrounds.  The recent scrutiny by the FTC is, in my opinion, due to a convergence of a few things. First, with the ongoing job crisis, there is increasing attention on potential barriers to employment, including a criminal past or a bad credit report.  When background companies get it wrong and someone is unjustly denied a job, those applicants are crying foul.  As well they should.

In addition, watchdog organizations are sounding the alarm. Groups like the National Employment Law Project (NELP) are reaching out to regulators and providing a platform for ex-offenders and potential victims of discrimination to protest inaccuracies in reports and potential FCRA violations.  I can’t argue with that. And the CFPB is now in the mix, asking questions as well.

Finally, technology and price pressures have converged to make the quick and easy instant database search an attractive but dangerous product.  Don’t confuse a cheap and cheerful web search with a real background check. Databases and public records are invaluable tools if used properly. But they can be inaccurate and damaging if not vetted and verified.

Full disclosure—I am employed by a background screening company.  Moreover, I am on the board of directors for the National Association of Professional Background Screeners. With that said, I firmly believe that if you are running or managing a business, doing a criminal background check is a must. It’s a sound and best practice. In some instances, it might be negligent not to do so, and it may actually be required by law. But how do you know if your background company is following the law? I have a few recommendations, based on the FTC’s allegations and the resulting judgment and order.
1.    Look for NAPBS accreditation: This standard, established a couple of years ago by the National Association of Professional Background Screeners, identifies that a background screening firm is committed to best practices, subjects itself to on-site audits, and has submitted to ongoing monitoring and approval of policies and procedures by an accrediting board.
2.    Ask your provider about accuracy: The FCRA requires “reasonable procedures” to ensure “maximum possible accuracy.” Ask your background company about this requirement. They should know what you’re talking about. If they don’t, start looking for a replacement.
3.    Does your background firm use databases? Databases are great. They are highly effective when used properly.  So if they use them, how do they confirm that the information is up-to-date? A database is NEVER completely up-to-date. Even the FBI and state police databases are full of holes and gaps. By definition, a database is stored information that does not keep up with the real-time activity of a court. Unless a provider is confirming with an on-site or real-time court level check, the information may not be accurate.
4.    What about expungements? Again, if the information is not verified at the county court level, you run the risk of making a decision based on an expunged or sealed records.
5.    Does your provider publish duplicate offenses? If a case is reported in multiple places, the right thing to do is only report it once. Courts and regulators agree–reporting duplicates can make an applicant look worse that they really are.
6.    Does your provider send required notifications to consumers when public record information cannot be verified? This is one area where the FTC came down hard. In this case the FTC alleged that they had a “complex, multistep process for notifying consumers that public record information was being reported.” This process delayed notification, and could have been avoided altogether if the information had been verified at the source before being reported.
7.    How does your provider deal with consumer inquiries? Ask for a copy of their dispute resolution policy. Take it to your attorney to review. The law says disputes must be responded to within 5 days, resolved within 30 days, and the background screening company must provide a copy of the report upon request. If it seems like they are making your job applicants jump through hoops when they have a question about the report, be on notice. The law exists to help consumers and job seekers, and the background screening companies are a critical part of that process.

At the end of the day, employers can help themselves and their applicants by asking these questions. And if the answers don’t sound right, it might be time to make some changes.








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