Swift Transportation has settled a class action suit to the tune of $4.4 million dollars. The suit alleged it neglected to make proper disclosures to job applicants as required by the Fair Credit Reporting Act (FCRA). We first blogged about this case last summer. The claim states that the company failed to inform and provide over 10,000 candidates copies of their own background checks thus eliminating the opportunity for the candidate to dispute the information.
One plaintiff, James Ellis III, applied to become a Swift driver in 2012 but was turned away due to the information discovered within his background check.
It continues to come as a surprise how common non-compliance amongst employers is with the foremost provisions of the FCRA and there is no immunity based on size with complaints being lodged against companies both large and small.
The FCRA regulates the practices of consumer reporting agencies (“CRAs”) that collect and compile consumer information into consumer reports for use by credit grantors, insurance companies, employers, landlords, and other entities in making eligibility decisions affecting consumers. The aim is to protect consumers from the potential, devastating impacts of misuse and inaccurate information and includes requirements that employers who utilize a consumer reporting agency (CRAs) must follow.
One oft missed compliance area for employers continues to be the adverse action requirements. The process as outlined in the FCRA is a two-step process that includes required disclosures that must be made in advance of an adverse decision being made and a follow up disclosure that must be made post decision. The process is critical because it gives the individual being screened the opportunity to dispute information if it is inaccurate.
The Federal Trade Commission has indicated that employers can outsource this process to their background screening partner. This is a service that Credential Check provides to many of our clients and is one way we support employer compliance by ensuring that adverse action processes are fulfilled consistently and compliantly. For companies that prefer to manage this process internally, we do make sample notices available that meet requirements.
Since this clearly a big area of focus for the FTC, whether outsourced or company managed, employers should be on notice that a complete review of their processes relating to FCRA compliance is in order.
If your organization would like to ask questions about employer responsibilities under the FCRA or to further discuss how Credential Check can assist with compliance requirements, please contact our office at 888-689-2000, or reach us by email at firstname.lastname@example.org.
This past weekend I had the opportunity to see the movie Draft Day and with the real NFL draft being only days away I thought this might be a great time to evaluate what the draft means and how this can relate to your organization.
Like all successful teams, having an understanding of what you currently have on your roster and the productivity available is crucial when it comes to drafting. Much like an annual review, coaches or managers need to evaluate what their team accomplished last year and where there were short-comings. These short-comings will be the area they look to improve through the draft or through hiring.
Once you have established the wants and needs of your organization, you’re ready to examine the free agents or talent available. This is a critical stage and where egos can get in the way of making the best decision for your team. I remember in the movie the owner of the Cleveland Browns, wanted to draft the unanimous number #1 pick, simply because of his accomplishments on the field without evaluating the character of the player and the impact this playing would have on the existing team. Minutes before the Browns selection during the draft the general manager called this player and asked him one question: “Did your teammates come to your birthday party?” The answer was no, and caused the team to go in a different direction with their #1 pick.
At the end of the day HR Professionals go through these same stages. Evaluating their staff, looking for improvements, determining which talent could best assist the organization and last but not least are they a team player or are they out for themselves.
To make your number one pick or any questions HR related, please contact Credential Check Corporation at 888-689-2000 or email@example.com
Work Life Balance – Taking Pleasure in the Little Things
Memorial Day is just around the corner and it is a good time to think about enjoying the simple things in life as the weather brightens. Our Blogs usually focus on topics that are relevant to your role as someone who is responsible for hiring, mitigating risk and ensuring compliance. All very serious subjects and we have built our business around helping you manage them as effectively as possible. Still, we all need to take time to recharge and refresh.
According to psychologist Robert Brooks, PhD, co-author of The Power of Resilience: Achieving Balance, Confidence, and Personal Strength in Your Life.
“But even if you don’t have much control over the hours you have to work, you can ask yourself: In what other ways am I bringing greater enjoyment into my life?”
Sometimes it is the little things that make life more festive and fun. We thought that to mix things up (pun intended) we would share a couple of our favorite refreshing summertime drinks with you.
The Arnold Palmer:
- Make a clear glass pitcher of sun tea by placing 4 or 5 tea bags (tie the tea bags together and then hook on the handle) in the pitcher and leave in the sun for 5 hours. (This makes a softer, less bitter tea.)
- Take a tall glass; fill with ice and a lemon wedge.
- Fill ½ full with the sun tea.
- Top off with lemonade.
- 1 Bottle of fruity white wine (such as Spanish Albarino or Riesling)
- ½ cup of thawed frozen, undiluted raspberry lemonade concentrate
- 1 lemon thinly sliced
- 1/2 cup of vodka (optional)
- 16 oz. club soda
- 1 cup raspberries
- Ice for glasses
- 1 thinly sliced lemon for glasses
- Additional raspberries for glasses
Chill all ingredients. Combine white wine, raspberry lemonade, lemon slices and vodka in a pitcher. Add chilled club soda and raspberries just before serving and stir gently to combine. Place a few ice cubes in each tall glass and pour Sangria over ice. Place a lemon slice and a few extra raspberries in each glass.
Perfect for summertime. Looks great and gets rave reviews!
The Court of Appeals for the Sixth Circuit has rejected the EEOC’s contention that an employer’s use of credit created an unlawful, disparate impact on minorities. In the case filed against Kaplan, the EEOC attempted, through a flawed approach, to show that black and Hispanic applicants were disproportionately adversely impacted by the use of credit reports in the hiring process. The case was dismissed by a federal district judge and the EEOC followed that defeat with an appeal which has now also been dismissed. This is being viewed as a significant setback for the EEOC.
This is one of two recent dismissals relating to litigation filed by the EEOC against employers (Kaplan and Freeman) that challenged their use of background checks. The courts were highly critical of the theory presented by the EEOC in both cases. The Freeman case is also currently under appeal in the Fourth Circuit and we await the court’s ruling in that case.
There has been significant activity from the EEOC surrounding the use of background checks. In April 2012, the Commission issued their revised guidance on the use of arrest and conviction records. Many governmental agencies have been critical of the guidance in that it does not enable employers to draw clear conclusions about the EEOC’s position and that it exceeds the Commission’s powers. The EEOC has underscored their stance with the filing of a number of lawsuits against employers relating to their use of background checks with, to date, failed results. Two cases related to the use of background checks are pending against Dollar General and BMW for their use of criminal background checks. The EEOC alleges that BMW had a blanket policy that disproportionately screened out African Americans from jobs and that their policy is not job related and consistent with business necessity. The case against Dollar General also claims a Title VII violation for discrimination on the basis of race.
Interestingly, it came to light that the EEOC itself performs the same type of background checks on employees and also utilizes credit checks as part of their own hiring process. In reality, statistics show that the majority of employers do not routinely utilize a credit report as part of their screening process unless the individual has fiduciary responsibilities or direct access to the company’s financial instruments such as credit cards and the company checkbook . Further, ten states currently have legislation in place that prohibits the use of credit reports in all but limited circumstances.
These dismissals should not signal employers that they are in the clear. We don’t expect the EEOC to back off from their position or their efforts on this front and caution employers to fully understand the guidance, review their policies and seek the review of legal counsel to avoid being the target of an EEOC lawsuit.
For more questions on this topic, please contact our offices at (888) 689.2000 or firstname.lastname@example.org.
Michigan HR Day – April 23rd, 2014
Michigan HR Day is a great event for HR Professionals and Business Owners that have a role in the HR function to exchange information, ideas and experiences. Michigan HR Day will address the relevance of the HR function as an important part of Michigan’s economic revitalization.
CredentialCheck® is excited about exhibiting at the upcoming Michigan HR Day Conference in Lansing. This conference provides us with the unique opportunity to greet existing clients in person and to demonstrate our exceptional service and technology offerings to new clients.
In between the great keynotes scheduled, we hope you’ll stop by our booth and say hello!
For more information on this event or any topic, please contact Credential Check Corporation at 888-689-2000 or email@example.com .
The National Association of Professional Background Screeners kicked off their 2014 Mid-Year Legislative and Regulatory Conference earlier this week which culminated with a Hill Day for attendees.
The conference was an enormous success and offered a great speaker line up including Chair Berrien from the EEOC, the Attorney General for the State of Georgia, Sam Olens, and a panel of FTC attorney advisors.
This conference had a new format comprised entirely of general sessions which was a resounding success. The sessions were very informative and focused on a legislative and regulatory theme. We attend this conference to hear the latest about our legislators and regulators and this conference did not disappoint. Exhibitor space and sponsor opportunities were sold out and attendees had many opportunities to visit an engaged provider community.
For me personally, the highlight were the polar opposite sessions presented by Chair Berrien and AG Olens who expressed two very different perspectives on the EEOC’s revised guidance on the use of criminal records in hiring decisions..
Mr. Olens pulled no punches as he criticized the EEOC’s guidance for “lacking certainty” in several areas making it difficult for reasonable people (employers) to avoid litigation from the EEOC. Chair Berrien did a great job presenting the Commission’s position with respect to criminal background checks and welcomed the opportunity for future dialogue from our profession. Still, it was clear that the Commission does not intend to make any revisions to their guidance despite harsh criticism from 9 attorneys general, the US Chamber and many other organizations including the Commission’s own Constance Barker.
It was claimed in AG Olen’s presentation that the EEOC is attempting to create ex-offenders as a protected class through their guidance and subsequent litigation activity. Currently, protected classes include race, sex and ethnicity among others.
Overall, the conference provided valuable insight to legislative and regulatory activities and agendas and provided an excellent opportunity to network with our fellow CRAs. Chalk it up as another for win column for NAPBS.
For more information on this or any topic, please contact our offices at (888) 689.2000 or firstname.lastname@example.org.
Pop warner football, little league baseball, youth hockey, these are just a few of the sports that kids have been enjoying for many years. Recently a countrywide policy requiring volunteers and coaches to be subject to a criminal background took effect on April 1st.
A recent editorial from the Baltimore Sun stated, “It’s an unfortunate and harsh reality that people who prey on children are apt to seek out opportunities where they can be in close proximity to children other than their own without it seeming odd. If backgrounds aren’t being checked, the danger to participating children is increased. It’s kind of like not locking car doors. Maybe nothing would end up being taken, but the time it takes to lock up makes breaking into a car a good deal more difficult. Similarly, the charge for rudimentary background checks will act as a deterrent.”
Many organizations with long histories of providing children with safe positive atmospheres have had their reputation affected by incidents involving child predators who could have been stopped if responsible adults had paid closer attention. Volunteering has often been an easy avenue for these predators as a majority of organizations have very few requirements as to what is needed to become a volunteer.
Hopefully, with this legislation more non-profit and youth athletic leagues will turn to performing criminal background checks on both their coaches and volunteers. Credential Check Corporation offers an online solution for these groups that is cost effective and provides the reassurance as to who is working with your child.
To find out more information about our offerings for volunteers and coaches, please contact Credential Check Corporation at 888-689-2000 or by email at email@example.com
Last week, the Equal Employment Opportunity Commission (EEOC) and Federal Trade Commission (FTC) teamed up to publish a joint piece entitled ‘What Employers Need to Know’. The piece is intended to communicate to employers the legal perspectives from each of these governmental agencies as it relates to the use of background screening information in hiring decisions.
The function of the EEOC is to enforce federal laws that make it illegal to discriminate against a job applicant or employee due to the person’s race, color, religion, sex (including pregnancy), national origin, disability or genetic information. The FTC is charged with preventing fraudulent, deceptive and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law.
There are three distinct areas covered in this joint publication: Before You Get Background Information, Using Background Information and Disposing of Background Information.
Before You Get Background Information
The publication underscores the importance of having a consistent and compliant process that does not discriminate. These are all topics we have discussed in the recent past. The EEOC points out that decisions based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history) or age are illegal. The FTC reminds users that if they utilize a 3rd party for their background screening process, that notification and authorization must be obtained from the individual in advance of any inquiry into their history being made in a document that consists solely of that disclosure. If an investigative consumer report will be conducted – a report that will contain personal interviews pertaining to character, general reputation, personal characteristics or lifestyle, that the individual has a right to understand the nature and scope of the investigation. The Fair Credit Reporting Act (FCRA) requires that both the background screening firm and the employer have obligations under the law.
Using Background Information
Again, the EEOC is primarily concerned with the use of background information being used to discriminate or to create a disparate impact, including against those who are disabled. Several examples are noted where employers should take special care to ensure that their policies are not in violation of Title VII. The FTC weighs in on one of the biggest areas of non-compliance we see among employers and their use of background information — properly carrying out the adverse action process as required by the FCRA. The FTC emphasizes the required steps that employers must take if the information they used contributed to a decision that in any way adversely impacted the individual. This includes mandatory disclosures to the individual BEFORE and AFTER a final decision is made.
Disposing of Background Information
This section of the publication outlines legal requirements by both agencies with respect to recordkeeping, document retention and secure destruction of information. These vary for federal contractors with 150 employees or more and under government contracts of $150,000 or more. Further, if an employee files a charge of discrimination, records must be retained until the case is concluded.
Both agencies included the following helpful links for employers.
- Preemployment medical inquiries: Preemployment Disability-Related Questions and Medical Examinations.
- Medical inquiries during employment: Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).
- Genetic inquiries, including inquiries about family medical history:Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008.
- EEOC recordkeeping requirements: Summary of Selected Recordkeeping Obligations in 29 C.F.R. Part 1602.
- Using arrest and conviction records to make employment decisions: Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.
- Whether arrest and conviction records act as an automatic bar to all employment: Reentry Myth Buster: On Hiring/Criminal Records Guidance.
- Background on the EEOC for small businesses: Get the Facts Series: Small Business Information.
- To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (877-382-4357)
- For specific information on employment background reports:
- Using Consumer Reports: What Employers Need to Know
- The Fair Credit Reporting Act & social media: What businesses should know
- Background screening reports and the FCRA: Just saying you’re not a consumer reporting agency isn’t enough
- Reentry Myth Buster: Criminal Histories and Employment Background Checks
For more information about this topic or Credential Check’s services, please contact us at (888) 689.2000 or firstname.lastname@example.org.
If you are an employer and aren’t familiar with Ban the Box, you need to be. Varying flavors of this legislation are sprouting up all over the country and may already affect you.
What is Ban the Box?
Ban the Box refers to prohibiting inquiries on an application for employment into prior arrests or criminal convictions (I.e. “Have you ever been convicted of a crime?” or “Have you ever been arrested?”). Municipalities and states that have adopted this legislation seek to remove barriers to employment for those individuals who have a criminal record. These types of laws seek to give individuals with a criminal history the best chance possible of attaining gainful employment.
San Francisco “Fair Chance” Ordinance
The City of San Francisco is the latest to expand Ban the Box legislation and the new law goes beyond what is required by the State of California. This ordinance affects both employers and certain affordable housing providers in the city.
The State of California’s Ban the Box law currently prohibits a prospective employer’s inquiry into criminal history information for public employers. Assembly Bill 218 (AB218) extends just a few exceptions — law enforcement, jobs that entail working with vulnerable populations such as children, elderly or disabled among others of a sensitive nature.
San Francisco’s new law, dubbed the ‘Fair Chance Ordinance’ was passed unanimously by the Board of Supervisors. It prohibits employers that have 20 or more employees in San Francisco from inquiring into an applicant’s criminal history on the employment application or during the first live interview — regardless of the format of that meeting (electronic, telephone or in person). After that first interview, if the person is still being considered, an inquiry can be made as to convictions within the last 7 years and open arrests. This ordinance is an extension of a law enacted in 2006 which prohibits employers from inquiring about a person’s arrest or conviction records early in the hiring process and includes some of the standard exemptions such as jobs related to child care and law enforcement.
The law mirrors many of the requirements set by the State of California in that certain inquiries into criminal history are off limits for employers.
- Arrests other than those still pending
- Completion of a diversion program
- Sealed or Expunged Cases
- Juvenile Cases
- Infractions other than felonies and misdemeanors
Required Notices to Job Seekers and Employees
The new law also contains specific posting requirements. Employers must state in job advertisements that they will consider qualified applicants with a criminal history. Additionally, employers must display a poster regarding the ordinance in each location where applicants or employees visit and must send the poster to each labor union that represents employees in the employer’s workplace. The posters must communicate specific information including:
- Information that the employer is prohibited from considering
- Restrictions on the employer’s inquiry into a person’s criminal history
- The individual’s right to provide information regarding mitigating factors
- Contact information for the OLSE to report violations
The poster must communicate this information in English, Spanish and Mandarin and be posted within 6 months after the ordinance goes into effect. If the employer is going to make a permissible inquiry into a person’s criminal history, regardless of whether they use a 3rd party company or not, they must provide a notice to the individual that includes the same information required on the poster. This notice is supplementary to the required FCRA and California Investigative Consumer Reporting Agencies Act disclosures.
The ordinance will go into effect August 13, 2014.
Ban the Box and the EEOC
The EEOC’s Revised Guidance on the Use of Criminal Records in the hiring process supports the spirit of Ban the Box type legislation and provides that employers must first consider the gravity or severity of the crime, the time since the crime occurred and how it relates to the job being sought.
Ban the Box legislation has been adopted by 10 states and over 52 municipalities and counties in 23 states across the nation. Employers are urged to review their policies if an inquiry into an applicant’s criminal history is made on the application, particularly if located in an area where this practice may now be illegal.
For more information about this or other municipalities who have adopted similar legislation, please contact our office at (888) 689.2000 or email@example.com.