Last week my esteemed colleague, Nick Fishman, wrote about the IRS’ current state of background screening and fingerprinting for tax preparers.  According to Bloomberg, the IRS has decided to table the decision but is still considering the use of Consumer Reporting Agencies (CRA’s) to be a part of the process.

According to Bloomberg:

IRS will not go forward with fingerprinting of tax preparers as part of the background check that will determine if they are eligible to receive a preparer tax identification number, an IRS official says on a wide- ranging Tax Talk Today broadcast that covers 2011 filing changes. Preston Benoit, deputy director of the IRS’s Return Preparer Office, says that IRS has “tabled the fingerprinting option right now.” Instead a group has been formed to determine how to move forward, with consumer reporting agencies still a likely contender.

For what I believe is my fifth time, I had the pleasure of representing my industry, along with 15 other colleagues for the annual NAPBS Fly-In.  The National Association of Professional Background Screeners (NAPBS) has been organizing this important event for the past six years.  It has quickly become one of the most important things we do as an industry association. Having a voice in Washington and a and an audience with the federal government continues to allow us to impact the legislative process.  Over the years, many bills have been introduced that would have had an adverse effect on all of our nation’s employers use of employment background checks.   In many cases these bills are drafted without input from the private sector.   If simply passed as drafted, these bills would result in significant unintended consequences both on individuals and industries without our perspective and insights.  Thankfully, our lobbying efforts have paid off as our perspective and insights are regularly sought by our legislators so that they may be advised of such consequences.  This year was no exception.  Among the most important issues we focused on this year, was the EEOC’s increased scrutiny over the use of employment background checks.  We feel that they have considerable misperceptions and what we do and an industry and how we do it and have worked hard over the years to better educate them on these issues; particularly as it relates to the use of criminal records and credit reports. We had three separate meetings with them last week and while the effect of our efforts isn’t known at this time, we at least were heard.  One of the nice outcomes of our meetings is that we were able to convince them that credit scores are not used by employers to make hiring decisions.  We still have a long way to go but I believe that we have identified some likeminded individuals working for the commissioners that are sympathetic to our position and willing to listen.

We also had a productive meeting with our current regulators, the Federal Trade Commission (FTC).  It is still unclear as to exactly what dual regulation will mean when the Consumer Financial Protection Bureau (CFPB) is launched.  We do know that both the FTC and CFPB be responsible for overseeing the Fair Credit Reporting Act (FCRA), the federal law that governs the use of employment background checks.   It is important to note that the CFPB will have rule making and enforcement authority; something the FTC never had.   Policy making and supervisory authority will be shared between the two agencies.  For example, the FTC will still enforce Red Flags and Disposal Rules but he CFPB will enforce other areas (to be determined) of the FCRA.  The two agencies are still working hard to flush everything out.  One thing is for sure; they will be working with NAPBS, not against us.  We are thankful to have relationship with our regulators.

There are three bills of interest we are watching closely.

• The Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFEATELU) enacted in 2005 (49 USC 31150; Pub. L. 109-59 4117), which created the Pre-employment Screening Program (PSP) for the Federal Motor Carrier Safety Administration (FMCSA).   We are working to make sure that the PSP program can be accessed by 3^rd parties (like the legislation that was passed laid out specifically) so we can access this information on behalf of our clients. Much more to come on this issue in the coming months
• The Safe Roads Act of 2011 which is a complement to SAFEATELU but adds all kinds of Drug and Alcohol Testing Provisions.  Coincidentally, while in Washington, NAPBS was able to submit comments and red-line revisions to the Safe Roads Act (S. 754) before the bill goes to mark-up today.
• The Child Protection Improvements Act which is in pilot status and aims to ensure background checks are performed on individuals working with children. The Child Protection act is important because we are working to ensure that the records are obtained from reliable accurate sources, not unreliable sources such as FBI records.  The method of using FBI records offers little protection to consumers.  I find this ironic since the bill is co-sponsored by representatives from NY and CA, both states that have the most inclusive consumer protection laws in regard to employment screening.

Overall this year’s efforts seemed to be very effective and we are hopeful that they will yield positive results for both employers and our industry.  On a personal note,  I will never forget this trip for reasons that have nothing to do with our lobbying efforts.  I arrived on Sunday, May 1^st and before I turned in for the night, I turned on the news and saw that Osama Bin Laden had been killed. Within minutes, people were celebrating in the streets.  My hotel was only 4 blocks from the White House, and I was kept up all night with screaming, cheering and horns honking through the night.  I have never been so happy to be awake so late!!

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!

EmployeeScreenIQ is thrilled to announce that we’ve achieved accreditation for our background check and employment screening services from the National Association of Professional Background Screeners (NAPBS).

We’re proud to have earned this distinction – shared by just one percent of all screening companies – that validates our industry-leading standards in data security, legal compliance, consumer protection, organizational integrity and professionalism. Accreditation validates our clients’ trust in us as a market leader and reinforces our pledge to minimize risk in the workplace. It’s an important seal of approval that all companies should look for when choosing a background screening provider.

But don’t just take it from us: “Accreditation is the industry’s primary vehicle for quality assurance, self-regulation and public accountability,” said Tracy Seabrook, CAE, executive director of NAPBS. “Developed and sustained by background screening professionals, accreditation reflects, reinforces and promotes best practices, institutional ethics and the highest standards of background screening operations.”

We recognize that this achievement was earned by our staff, who demonstrate every day that this is not just a plaque hanging in the lobby, but an ethos ingrained in us all.

View Full Press Release

The National Association of Professional Background Screeners has unveiled an accreditation program for Employment Screening companies located in the United States of America. Governed by a strict and thorough set of professional standards, the BSAAP will become a widely recognized seal of approval that brings national recognition to a background screening-affiliated organization for its commitment to excellence, accountability, high professional standards and continued institutional improvement.

I recently sat down with Tracy Seabrook, Executive Director of NAPBS to discuss the program and what it means to the marketplace.  Take a listen.

Kudos to the National Association of Professional Background Screners (NAPBS) for passing and launching the industries first accreditation program.  Since before I was Co-Chairman of NAPBS hundreds of people have put in thousands of tireless hours to get this program off the ground.  The Background Screening Credentialing Council (BSCC) was formed two years ago to take the hard work that was done previously and implement it into reality.  I couldn’t be more proud of my competitors being able to work together to finally get this done!  EmployeeScreenIQ is looking forward to the challenge of going through this process in the coming year!

New Accreditation Effort Introduces a Self-Regulating Program Poised to Change the Industry

MORRISVILLE, N.C., Feb. 24 /PRNewswire/ — The National Association of Professional Background Screeners (NAPBS®) announced today they will be launching the Background Screening Agency Accreditation Program (BSAAP), the first ever industry-specific background screening accreditation program at the opening ceremonies of the NAPBS 2010 Annual Conference on March 7th in San Antonio.

Each year, U.S. employers, organizations and governmental agencies request millions of consumer reports to assist with critical business decisions involving background screening. Background screening reports, which are categorized as consumer reports, are currently regulated at both the federal and state level.  Since its inception, NAPBS has believed that there is a strong need for a singular cohesive industry standard and created the BSAAP. Governed by a strict professional standard composed of requirements and measurements, the BSAAP is positioned to become a widely recognized seal of approval that brings national recognition to background screening organizations (also referred to as Consumer Reporting Agencies). This recognition will stand as the industry “seal” representing a background screening organization’s commitment to excellence, accountability, high professional standards and continued institutional improvement.

“The BSAAP is the industry’s primary vehicle for quality assurance, self-regulation and public accountability,” said Tracy Seabrook, CAE, executive director of NAPBS. ”Developed and sustained by background screening professionals, the BSAAP reflects, reinforces, and promotes best practices, institutional ethics, and the highest standards of background screening operations.”

More

This week the National Association of Professional Background Screeners (NAPBS) wrapped up its Annual Mid-Year Meeting and Exposition.  What started several years ago as a way for the Board of Directors and various committees to get together has turned into a full blown conference.

There are some very serious issues our industry is dealing with today.  For starters, Barney Frank (D-Mass) has introduced H.R. 3126 which will create the Consumer Financial Protection Agency (CFPA).  NAPBS was successful in getting Consumer Reporting Agencies (CRA’s) excluded from this agency, however, we have now been put back in.  Being regulated under two agencies (The FTC and CFPA) would severely impact our industry and employers across the US.

Secondly, NAPBS is working hard to launch our Accreditation program in the next six months.  Currently in beta test the program will raise the bar in our industry and show law makers we are serious about doing things properly.  As a former Co-Chairman and current member of the Background Screening Credentialing Council (BSCC) I couldn’t be more excited about the launch.

I had the pleasure of sitting in on many exciting education sessions along with meeting some great people.  NAPBS continues to shine as the premier background screening association!  Looking forward to our annual conference in San Antonio in March 2010.

The following is being reported to us via the National Association of Professional Background Screeners (NAPBS)

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized.  Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES: Comments must be submitted not later than September 18, 2009.

What led up to the Rescission of the Rule?
As stated in the Federal Register. Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.

On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. AFL-CIO v. Chertoff, D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs’ motion for preliminary injunction. AFL- CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction).

The court raised three issues regarding DHS’s rulemaking action implementing the No-Match final rule: Whether DHS had (1) supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and (3) violated the Regulatory Flexibility Act, 5 U.S.C 601 et seq., by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court’s injunction.. See e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined.

Basis for the Administration’s Policy Change?
As stated in the Federal Register notice.  On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.

We recently sat down with Tracy Seabrook, Executive Director of the the National Association of Professional Background Screeners (NAPBS).  Tracy offered a snapshot into the state of the background screening industry and also discussed the association’s launch of their first-ever accreditation program.

Check it out!

This from the state that has brought employers the 10 day background check . . .  The state of New Hampshire has announced plans to raise court access fees to $20.00 per name for court records.  One might understand the new fee structure if the state agreed to staff courts to accommodate a more reasonable turn around time.  Alternately, the state might consider allowing access to public records without the help of a court clerk.

This fee is set to take effect on August 1, 2009.  The National Association of Professional Background Screeners is encouraging its members and their affected clients to oppose this policy.

If you are interested in participating, you can send a letter or email the New Hampshire Administrative Office of the Courts at:

New Hampshire Administrative Office of the Courts
Director Donald Goodnow & the Administrative Council
Telephone:  (603) 271.2521, Extension 5
Fax:             (603) 513.5454
Email:          lmcmanis@courts.state.nh.us

Here is the message we have already sent to the state.  Feel free to borrow or modify as you see fit.

To Whom it May Concern:

I am writing to oppose your new order to increase court fees for criminal record searches.  This fee increase will have a severe impact on employers in your state and others.  Companies seeking to hire individuals from New Hampshire will not be able to afford the background check.  This could put your citizens at peril of not getting a job they are otherwise qualified for.   Our fear is employers will simply skip good candidates because they are too expensive to screen.  In these tough economic times it is important to ensure everyone has an equal chance to gain employment.