Screening Experts Go to Washington
May 9, 2011
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 3rd 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 1st 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!!
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