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More information has come to light about the Seattle proposal to restrict employers’ ability to use criminal background checks. I wrote about the ordinance and confusion surrounding the proposal here a couple of weeks ago. As it turns out, maybe the headline that drew my attention (and criticism) in my last post was right.

The proposed ordinance was introduced by Seattle Council member Bruce Harrell with the support of the Seattle Human Rights Commission. Now that the details of the proposal have been made public, employers are justifiably concerned. And not to sound alarmist, so should anyone who cares about the financial security and the safety of Seattle businesses, consumers, and employees. Don Brunell, president of the Association of Washington Business, recently wrote an op-ed echoing my concerns, that appeared in the Columbian on September 18th.

Public comment in support of the bill was heard by the Seattle Public Safety, Civil Rights and Technology Committee on September 19, 2012.  The emotionally charged meeting included a long parade of proponents who showed up to testify in support of the bill. Notably absent was any opposition. The eclectic group included attorneys, non-profits such as Puget Sound Sage, the NAACP, the South Seattle Community College, ex-cons, parents of ex-cons, siblings of ex-cons, and a singing activist group of seniors known as the Raging Grannies. If you have an hour to kill you can see for yourself– a video of the hearing can be found here.

Supporters believe that the ordinance will boost public safety by reducing recidivism and unemployment amongst ex-offenders.  They claim that the law will not allow frivolous actions—all charges will be fully investigated, and there is no private cause of action.  Unfortunately the other side of the issue has not officially been heard nor publicly discussed.

A few points that Councilman Harrell and his colleagues need to consider:

•    The proposed ordinance is a drastic measure that would create an unprecedented legal standard. The legal standard proposed in the new ordinance goes far beyond what the courts, Congress and even the EEOC require an employer to consider. It would require a “direct relationship” between the criminal offense and the job sought, and would require that the employer could “reasonably foresee” whether hiring the individual would result in harm or injury. This standard is a far stretch from the already cumbersome test advocated by the EEOC in its guidance and would require employers to exercise superhuman powers or otherwise face the threat of legal action.

•    The legislation as submitted would establish ex-convicts as a protected class. Unlike Title VII and EEO laws, the ordinance would allow any ex-offender, regardless of race or color or other protected status, to allege a violation when a decision is made based on a criminal record.  The ordinance would allow a white ex-offender to have a potential claim against an employer who chooses to hire a law abiding citizen of any race or color.  This outcome is absurd, is not supported by any legal precedent, and puts employers at risk for a whole new wave of litigation.

•    The proposed ordinance presumes that a job ensures that someone will not be a repeat offender, while offering employers no safe harbor if they choose to hire someone known to have a previous record. It requires that employers all but ignore the potential connection between past criminal behavior and future transgressions.

The end result is a scenario where employers cannot reasonably act upon criminal background checks. Which leads to fewer checks. Which leads to unscreened workers being hired to work in your home, take care of your yard, drive your truck, clean your hotel room, or deliver your pizza. Not good.

Council member Harrell said he wanted to “socialize” the proposed ordinance to hear from other stakeholders.  Let’s hope he expands his invitation list to the next party.

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According to Dollar General’s recent SEC filings, the company is likely to be sued by the Equal Employment Opportunity Commission (EEOC) for their employee criminal background check practices.

I wasn’t able to find much information on this, but the Nashville Business Journal reported that EEOC alleges that the company’s criminal background check policy has a “disparate impact” black job candidates and employees, a violation of the Civil Rights Act of 1964.

According to the article, the EEOC believes that Dollar General “excludes from employment individuals with certain criminal convictions for specified periods’”.

The company was notified about the allegations in September of last year, but efforts to resolve the matter through a conciliation process were unsuccessful.

It is impossible to tell from the limited information we have about the merits of this case or lack thereof.  We’ll continue to follow this and pass on details as they become available.

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There are no two ways about it. Richard Eggers was terminated from his job of seven years as a mortgage company customer service representative after the company discovered on a random employment background check that he put a cardboard cutout of a dime into a wash machine in an effort to see if he would get free laundry service . . . in 1963. Since that time, he hasn’t had so much as a speeding ticket.

So before we get into who is to blame, let’s take a look at the mitigating factors here:

  • Misdemeanor conviction for a stupid prank
  • Crime was committed when he was in his 19 years old
  • Conviction is 49 years old
  • No criminal activity since the incident
  • No apparent threat to his employer

When you add these things up, this would seem to be a case that the EEOC would be chomping at the bit to pursue.

HOWEVER THE EMPLOYER IS NOT TO BLAME!!!

Sure, nobody thinks this is fair.  Heck, his employer, Wells Fargo probably doesn’t think it’s fair either.  However, they have no choice.  The Federal Deposit Insurance Corporation (FDIC) has strict rules and regulations when it comes to those with criminal records. Section 19 of the Federal Deposit Insurance Act prohibits any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution, from becoming or continuing as an institution-affiliated party, owning or controlling, … or otherwise participating in the conduct of the affairs of an insured institution without prior written consent of the FDIC.

And what are the potential penalties for hiring those with such records?  There can be substantial financial penalties for institutions who hire individuals in violation of Section 19. Does $1 million a day while the violation continues get your attention? Imprisonment for up to 5 years is also on the sanctions menu.

So now you know everything.  What would you do? Face $1 million fine per day and possible criminal charges (which would then make you persona-non-grata at an FDIC institution) or simply terminate the employee? This stinks all around.  The FDIC is trying to protect the financial institution, the bank is trying to avoid fines and imprisonment and the poor guy just wants a job.

Perhaps, it might be time to look for some more specific pre-employment screening guidelines.

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Welcome back to an annual tradition of mine where I skewer school districts across the country for the manner in which they conduct employee background checks on their teachers and faculty.  This year, I’m going to be less snarky because this is a serious issue with some very sobering facts.  In the past year alone, we’ve heard about some atrocious instances of abuse at the hands of school employees.  See a few examples below.

  • Duval Schools in Jacksonville, Florida- Elementary School teacher Christopher Bacca was accused of sexually molesting a boy under 12 in the boy’s home. Just over a year earlier, Robert Luke was teaching math at Southside Middle School when he was charged raping a 15-year-old girl.
  • Whaley Elementary School in San Jose, California- Law enforcement authorities are charging OB Whaley Elementary School principal Lyn Vijayendran with failing to report a child molestation complaint against alleged child molester Craig Chandler. Chandler taught at OB Whaley Elementary School, Evergreen School District, for nine years. Chandler was arrested in January 2012 and is currently facing charges stemming from the alleged molestation of five children from his second and third-grade class.
  • Miramonte Elementary School in Los Angeles, California- The children at Miramonte Elementary School never complained about their third-grade teacher. Not when he blindfolded them, not when he put tape over their mouths or even when he placed live cockroaches on their faces. He told them it was a game. Then he photographed them, creating images that would eventually lead to his arrest.

Of course these are all disturbing cases, but I think we all have a tendency to think that these things happen elsewhere; not in our own backyards.  So when it comes to background checks why shouldn’t they just go along with state directives?  What’s the point of going the extra mile?  If the state says their criminal record index is sufficient, then who am I to question?

Here’s the thing; these things don’t happen in your school district until they do.  And if you could predict when and where they occurred, there would be a need to conduct criminal background checks.

Sometimes you need to bring the message home with cold hard facts.

I found some of the following facts about child abuse in schools.  Some are old, but I think it’s safe to say that things have either stayed the same or gotten worse.

  • The best estimate is that 15% of students will be sexually abused by a member of the school staff during their school career.
  • The number of K-12 public and private school students in 1996 who have been or will be sexually abused by a member of the school staff is nearly 7 million of 51,331,000.
  • Though, when the American Association of University Women Foundation surveyed more than 1,600 students in eighth through 11th grade, 25 percent of the girls and 10 percent of the boys who said they had been harassed or abused said the harasser was a school employee.
  • Between 1% and 5% of teachers sexually abuse or harass students.
  • At least a quarter of all school districts in the United States have dealt with a case of staff sexual abuse in the past ten years.
  • Most cases of sexual abuse of students by teachers are never reported.
  • In nearly half of the cases, suspects were accused of abusing more than one student.
  • Only two cases were cases of false accusations; less than 1 percent of the cases studied.
  • No type of school was immune to abuse: public or private, religious or secular, rich or poor, urban or rural.

The schools and the state will argue that their systems work, “Sure, people will slip through the cracks, but it works for the budgets we have”.

If they cannot be swayed by the pain and suffering this causes to children and their families, perhaps they’ll consider the words of Prevent Child Abuse America’s CEO, Jim Hmrovich, who suggests that children who are abused are left with scars for the rest of their lives.  In many cases, they become non-productive members of society whether due to dropping out of school, drug abuse and, or criminal activity.  Even worse, many who are abused actually become abusers.

Perhaps that’s not enough.  Let’s look at the financial impact.  I don’t know what the average settlement is with a school for these cases, but here are a few to consider:

  • Sexual abuse of foreign exchange student $600,000.00
  • Sexual molestation by teacher $1,500,000.00 settlement
  • University settlement of sexual harassment claims $2,800,00.00
  • Sexually assaulted by football coach $1,150,000.00 settled
  • School bus driver molestation of child $300,000.00 settlement

I think you get the picture.  When compared to these settlements, the cost of a thorough employment background check is decimal dust.

Let’s start holding our school districts to the same standards used in corporate America.

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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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So I guess introducing a federal “Ban the Box” bill in the U.S. House of Representatives is a one way ticket home.  Just one week after Congressman Hansen Clarke (D-MI) drafted a bill to stop employers from asking job candidates if they have ever been convicted of a crime on their employment application, he lost his district’s primary election.  Of course, one probably had nothing to do with the other, but the introduction of such a law is noteworthy for employers.

The proposed HR 6220, or “Ban the Box Act,” would only allow for an inquiry or criminal background check after a conditional offer for employment is extended to an applicant; or where there is an “unreasonable risk” to individual or public safety.

The freshman Congressman said in a statement: “By making it incredibly difficult for people with conviction records to find jobs, current employment practices lead to hopelessness and result in more poverty and crime,” and  “This legislation is aimed at empowering people to take responsibility for their communities and their lives.” Clarke is running for his second term in a hotly contested race in a district that was redrawn this year.

The bill is patterned after similar laws in Minnesota, Massachusetts and the city of Philadelphia, to name a few. Essentially, it removes the little checkbox on the application that reads “Have you been convicted of a crime?”  While the intent is to get ex-cons back to work, one problem with this bill is that it ties the hands of employers until too late in the game.  Employers cannot reasonably determine a candidate’s suitability for a job until countless hours and resources have been spent reviewing applications, conducting interviews, and negotiating employment terms.  Have you ever been under pressure to fill a position, only to find out in the eleventh hour that there is something about the candidate that makes them ineligible for hire?  Starting over is costly—in terms of both time and money.

Another concern is that this bill does not take into account the employer’s liability for negligent hiring or retention.  By limiting the employer’s ability to conduct criminal background checks until the last step, a legitimate concern is the potential chilling effect on conducting criminal background checks altogether.  This bill would codify a public policy that discourages employers from looking into a criminal’s past. What if you have several finalists, and you want to screen all of them before making an offer? There is no provision for this scenario, nor is there a safe harbor or exemption for employers who are required by state law to conduct background checks—only a very amorphous exclusion for an “unreasonable risk” to public safety.

The pay-off is to discourage and prevent discrimination against ex-offenders, which is a worthy goal. But why not focus on policies and programs that give employers incentives to hire ex-cons? There are tax credits, re-entry programs, rehabilitation policies that are all geared at getting people back to work.  I realize that this all might sound self-serving coming from a person who works for a company that is paid to do criminal background checks.  So don’t let me have the final word—what do you think?

Editor’s Note: Congressman Clarke lost his democratic primary a week after this bill was introduced.  And while someone else can pick up the effort, it looks like this is a dead issue for now.

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The Society for Human Resource Management (SHRM) recently released their 2012 survey results on employers’ use of criminal background checks and we wanted to take the time to break down some of their key findings.

The one I want to focus on today is the question they asked about whether employers allow job candidates to explain the results of their criminal checks.

According to the study 58% of respondents said that they allow candidates to explain the results of their criminal checks before the decision to hire or not to hire is made and 27% allow them to do so after a decision is made.

As I evaluated this finding, I couldn’t help but think of a survey they released in 2010 about employers use of credit checks.   Through not fault of SHRM whatsoever, the finding that got published over and over and over again was that 60% of all employers were evaluating credit reports to determine hiring eligibility.  And I’m sure you all remember how the media twisted those results: “Job Applicants With Bad Credit Need Not Apply”, “Candidates Beware: Employers Are Looking At Your Credit”, etc.

The media jumped on this and created a hysteria among those looking for jobs as our country’s unemployment rate reached double digits.  For all we know, that finding could very well have been the catalyst to inspire a myriad states to create limitations on employers use of credit reports.

Just one problem though.  While technically that 60% stat was accurate, no one bothered to read the real findings.  47% said that they ran credit reports on select candidates, while only 13% said they run credit reports on all candidates.  In SHRM’s defense, they even underlined the part where they mentioned that only 13% used them all the time.  And, in truth I am certain that a healthy percentage of that group ran them to comply with federal guidelines.

Now, back to the findings about whether employers allow candidates to explain the results of their employment background check.  If not explained further, the findings seem low.  I can see the headlines now, “Only 58% of Employers Allow Applicants to Explain Criminal Past”.

Let’s give those findings some perspective now.  According to our 2012 Trends in Background Screening study, employers deny employment to those with criminal records less the 10% of the time. Why is that important? It’s important because it underscores the fact that oftentimes, these records don’t need to be explained.  The candidate is hired and that’s that.

So while the media’s first thought will be to offer this statistic to suggest employers’ irresponsible use of employee background checks, let’s hope that they take a minute to consider the whole picture first.  That headline might not sell papers, but it also won’t create a media frenzy fueled by inaccurate reporting.

It’s important to realize that employers are not looking for reasons not to hire someone.  They spend of time, money and effort recruiting the perfect candidate.  By and large, they don’t conduct a background check until the final stages of the hiring process.  The last thing they want is to throw the investment they made into that candidate out the window and start over again.

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The Society for Human Resource Management (SHRM) just published an eye-opening study on employers use of employee background checks.  The big takeaway that SHRM and other industry writers have chosen to highlight is that the use of pre-employment background screening has declined since their last survey was conducted in 2010.  In the 2012 survey, 14% of respondents say that they never perform criminal background checks compared to 7% in 2010.

This finding is particularly puzzling and runs counter to what we are seeing in the marketplace.  In fact, I often tell clients and prospects the key difference in screening between the time we started the company in 1999 and now is that we used to walk into meetings convincing employers that they should have a background screening program.  Now, we simply ask what they are currently doing and how we can make it better.  I haven’t had a conversation with a mid to large sized organization that doesn’t perform an employment background check prior to hire in years.

When I looked at the survey demographics, I noticed that 24% of all respondents worked for organizations with 99 or less employees.  I’m not sure what the demographics were in 2010, but perhaps that might help explain the findings.  In fact, the study notes that only 48% of organizations at this size conduct background checks.

Here are SHRM’s other key findings:

  • 69%  of employers say that they conduct criminal background checks on all job candidates, 18% on select candidates and 14% don’t perform them at all.
  • 62% of employers conduct a background check after a contingent offer, 32% after a job interview and only 4% before an interview.
  • 52%  conduct criminal background checks to reduce negligent hiring concerns while 49% do so to ensure a safe work environment.
  • 96% say that they are influenced not to hire convicted violent felons and 74% say they are influenced by non-violent felony convictions.
  • 58% of organizations allow job candidates to explain the results of their background check before a decision is made and 27% allow them to explain after a decision is made.

Now, rather than make this post into a novel, we’ll be breaking down some of these findings in multiple posts.  In the meantime, feel free to check out the official findings.

 

 

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Cody Slaughter might have said a little too much at his interview for a position with the U.S. Customs and Border Protection when he openly admitted to sexually molesting a 2 year old girl when he was 14 years old as well as animals.  I’m guessing the interview all went downhill from there.

Before I start being a wise-donkey, I want to say that sexual molestation is no laughing matter and the comments I share below are in no way intended to make light of the situation.

That said, if all applicants were as truthful as Slaughter, there wouldn’t be a need for employee background checks or background screening companies for that matter.  Unfortunately, we live in a world where that just isn’t the norm.  There must have been something about Slaughter’s experience and qualifications that got him an interview.  Clearly, he looked good on paper.  At least we’ll give him a big A+ for honesty. Let’s also give U.S. Customs and Border Protection props for taking this information to the proper authorities.  If only Penn State University did the same thing.

 

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Last week Pennsylvania State University announced that it was launching a new pre-employment background screening program for all employees.  And because they are a public institution, they made the actual policy itself available to the public.

I have to commend them on many levels.  First, it is refreshing to see a major university taking the proper steps to protect its students, faculty, employees and itself from hiring those people who seek to harm them collectively whether it be through theft, dishonesty, violence, etc.  Universities whether public or not have become multi-national conglomerates and it’s time that they recognize it.

While many will say that they are only doing this because of the Jerry Sandusky scandal, I say, so what.  Good for them for learning from their mistakes.  I hope that other academic institutions will take note and follow suit.

Secondly, if you read their actual policy, they did a tremendous job of defining who will be subject to an employment background check (practically everyone), what screening criteria will be applied to each position, how the information will be used and how they intend to stay in compliance with state and federal laws as well as EEOC and FTC guidelines.

Any employer that conducts employee background checks and doesn’t have such a policy or hasn’t updated it for a while ought to take a few moments to review it.

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