EmployeeScreenIQ Blog

We are closely following a proposed bill in the state of Florida which would remove certain protections the state’s employers currently receive against negligent hiring suits in the event that they conduct an employment background check.

Florida House Bill 449 “Jim King Keep Florida Working Act” would remove a provision in Fla. Stat. § 768.096 (Employer presumption against negligent hiring) which was enacted as part of the 1999 Florida Tort Reform Act.

According to one legal expert I have spoken with, “The statute provides that in a civil action for death or injury caused by an employee’s intentional tort, the employer is presumed not to be negligent in hiring the employee if he engaged in one or more pre-employment background investigation steps that did not ‘reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.’”

The state’s website introduces this bill as follows:

“Criminal Justice; Designates act “Jim King Keep Florida Working Act”; requires state agencies & regulatory boards to identify & evaluate restrictions on licensing & employment for ex-offenders; prohibits state agencies from denying certain applications based on person’s lack of civil rights; provides exception; requires employer to review results of criminal background investigation & not place employee with criminal record where conduct similar to past criminal conduct would be facilitated, etc.”

This bill should be of significant concern to employers in the state of Florida.  It basically means that even if you performed a comprehensive background check which did not indicate any adverse information, you can still be held accountable for negligent hiring.  Does that make any sense?  I suppose state lawmakers would prefer that employers look into a crystal ball to predict the future.

Read full version of Florida HB 449

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President Obama is calling for some stricter controls and better background checks for potential gun owners.  Personally, I hunt, fish and own several guns, I am 100% in favor of keeping guns out of the hands of criminals.  Do I think this will prevent criminals from getting their hands on guns, no, not even for a minute.  However, you can’t even attempt to control the sale of illegal guns until you do a better job of curtailing their legal sale to individuals who shouldn’t have them.

Obama Pens Op-Ed Calling for Better Gun Sale Background Checks

The Second Amendment and court precedent guarantee an individual’s right to bear arms, but improved and expanded background checks are needed to prevent gun violence like the shocking attack in Tucson in January, President Obama wrote in an op-ed Sunday.

Writing in the Arizona Daily Star more than two months after the shooting of Rep. Gabrielle Giffords and 18 others, six of whom died, Obama said he’s “willing to bet” that responsible gun owners would support laws to “keep an irresponsible, law-breaking few — dangerous criminals and fugitives, for example — from getting their hands on” guns.

“Most gun owners know that the word ‘commonsense’ isn’t a code word for ‘confiscation,” he wrote.

“I’m willing to bet they don’t think that using a gun and using common sense are incompatible ideas — that we should check someone’s criminal record before he can check out at a gun seller; that an unbalanced man shouldn’t be able to buy a gun so easily; that there’s room for us to have reasonable laws that uphold liberty, ensure citizen safety and are fully compatible with a robust Second Amendment,” the president wrote.

Obama wrote in Sunday’s op-ed that his administration has not curbed gun rights but, in fact, has expanded them, by letting people carry guns in national parks and wildlife refuges.

But, he said, with more than 27,000 deaths from guns each year — a number down from its height of more than 39,000 in 1993, more needs to be done to prevent assailants like Tucson suspect Jared Loughner from getting a hold of weapons.

“A man our Army rejected as unfit for service; a man one of our colleges deemed too unstable for studies; a man apparently bent on violence, was able to walk into a store and buy a gun,” he lamented.

Read more

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The state of Colorado is now mulling House Bill 11-1127 which would create certain restrictions on an employer’s ability to evaluate a job candidate’s/employee’s credit report as part of the background screening process (the bill also addresses requirements for insurance companies and landlords).  The bill proposes the following.

An employer cannot use a consumer credit report unless:

1. The information is substantially job-related, meaning that the position of the person for whom the information is sought has access to money, other assets, or trade secrets or other confidential information.[Insert Nick's snarky comment here: How many employers out there conduct credit reports for any other reason?  Can someone define "other confidential information".  That could relate to anything.]
2. The person of the person for whom the report is sought is a managerial position, a position in the department of law, a sworn peace officer of other law enforcement or a position for which the information is required to be disclosed by law or to be obtained by the employer. [Insert another snarky comment: Haven't they now granted enough exemptions so that the law is unnecessary]

My smart-Alec comments aside, there is other language in here that I believe renders the entire bill useless (and I’m not complaining).  They define “Consumer Credit Information” as something that includes a credit score.

Hello people! If an employer conducts a credit report, they are provided with an “Employment Credit Report”.  An employment credit report doesn’t include a credit score.

So having dissected this bill, do we care if it passes?  It would appear that it has next to no impact on the state’s employers.

If this bill is passed, it will take effect on July 1, 2011.  Stay tuned.

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Maryland State Delegate Kirill Reznik has introduced House Bill 87 that would prohibit Maryland employers from using a person’s credit report as a background screening tool for hiring and retention decisions.  The bill includes exemptions for financial institutions, banks, credit unions and law enforcement.

This is the second time Reznik has introduced this bill as last year’s attempt was unsuccessful.

“We’re not trying to target the CFOs or the folks involved in dealing with companies’ millions of dollars,” Reznik said. “We mean nurses, school teachers, janitors, plumbers … blue-collar workers having trouble making ends meet, so that they don’t have one more hurdle to overcome.”

If Maryland were to enact this law, they would join the states of Illinois, Hawaii, Oregon and Washington who have similar laws in place.

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We just published The Verifier XXII, Winter 2011 Edition, a publication intended as an educational tool and information resource for human resource professionals or anyone interested in keeping abreast of recent employment screening and background check industry developments.

Highlights of this issue include the following:

Articles:

• EmployeeScreenIQ’s Top Background Screening Trends for 2011
• EmployeeScreenIQ’s Background Screening Accreditation and What It Means To You
• My Rant About the EEOC’s Recent Hearings on Employment Credit Reports

Announcements and Legislative Updates

• Information About Our Upcoming Webinar on Complying with the EEOC’s E-Race Initiative
• EmployeeScreenIQ Partners with eScreen, Introduces Online Drug Screening Solution
• California Consumer Privacy Law Takes Effect January 1, 2011

Check it out!

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A reminder that as of January 1, 2011, California SB 909 requires employment screening firms to be upfront about off-shoring personally identifiable consumer data. Please note that EmployeeScreenIQ DOES NOT off-shore any of our data and that all work is conducted in the United States.

The bill also requires employers that use investigative consumer reports for employment purposes to provide the subject of the report with the web address or telephone number of the investigative consumer reporting agency where they may find additional information about the agency’s privacy practices.

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Just a reminder to all who employ a workforce in the state of Illinois that restrictions on the use of employment credit reports take effect today, January 3, 2011.

The new law forbids employers from inquiring about an applicant or employee’s credit history or obtaining a copy of their credit report. The law does not affect an employer’s ability to conduct a thorough background check that does not contain a credit history or report.

HOWEVER READ BELOW

Under the new law, employers may access credit checks under limited circumstances, including positions that involve: bonding or security per state or federal law; unsupervised access to more than $2,500; signatory power over businesses assets of more than $100; management and control of the business; access to personal, financial or confidential information, trade secrets, or state or national security information.

Translation: To all those who have been living under a rock for the last five years and continue to run credit reports on candidates where credit has nothing to do with the job responsibilities, you might want to stop.  For the 99.99% of all others who have been using them appropriately, you can continue to do so (just make sure you adhere to the exemptions above).

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We just re-released our 21st quarterly newsletter, The Verifier, an educational tool and information resource for human resource professionals interested in keeping abreast of recent employment background screening industry developments. We’ve got some great new content including:

Articles:

• Trends in Employment Screening: 2010 Results
• Background Check Urban Legends
• Credit Reports and the Hiring Process

Announcements & Legislative Updates:

• EmployeeScreenIQ Achieves Accreditation from National Background Screening Credentialing Council
• Illinois law which severly restricts the use of credit report
• New Reforms to the state of Massachusetts’ CORI background screening system

Multimedia

• EmployeeScreenIQ’s podcasts from the 2010 Annual SHRM Conference

And much, much more. Check it out.

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Not sure how far down the road they are, but I just read this morning that the state of New Jersey is considering banning the use of credit reports when conducting employment background checks.  If the measure is approved, they will join the states of Oregon, Washington, Illinois and Hawaii who all have similar laws.

With newly elected California governor Jerry Brown taking office, I wonder if they might be close behind.

See below.

N.J. may ban credit checks in hiring process

A New Jersey Assembly committee will consider a measure prohibiting employers from using financial background checks in their hiring decisions.

With many people applying for few job openings, Sen. Shirley Turner says the use of credit checks on potential employees is becoming more commonplace.

“This is a catch 22 for so many people who have lost their jobs through no fault of their own and now they can’t get a job because they can’t pay their bills and they have a poor credit rating,” said Turner.

The legislation would subject employers who use those credit checks to penalties from the state Labor Department as well as potential lawsuits. Turner says she expects opposition to the measure from the business community. She says Hawaii, Oregon, and Washington have already approved similar laws.

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