If you conduct a background check on a prospective employee, one very important aspect of compliance to be aware of is the Fair Credit Reporting Act’s (FCRA) concept of “Maximum Possible Accuracy”. Whenever a consumer reporting agency prepares a consumer report, it is required to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual. Unfortunately, this question of “maximum possible accuracy” is not specifically defined and it tends to be settled in court.
Does an inexpensive database search provide maximum possible accuracy?
We continue to run into companies that use vendors that run only database searches and provide them at a very low cost. These databases can be of value from a national perspective in casting a wider net but they also do not contain all jurisdictions which means they are by no means comprehensive and may not be updated consistently across the board. You have to question that by using and not verifying these sources whether you are hiring someone who could be a danger to your customers and employees or a financial risk to your business not to mention inviting additional liability. If you do get a hit against a database to ensure maximum possible accuracy the vendor must review the county court records (originating source of the record) to validate the finding.
Are you being supplied data that you can legally use?
Some background screening firms provide data that is taken out of context, irrelevant for the purpose, or that is simply reported because it was supplied by the source of the data.
What to do?
- If your price from your screening firm seems too good to be true,
question the data sources, how often they are updated and the accuracy of the data.
- Know and approve the sources of the information your screening firm is providing to you. Understand how often the various sources of data are updated.
- Select a vendor that is a member of the Concerned CRAs, they will ensure that if a hit on a database is encountered that the actual court records are pulled to maintain maximum possible accuracy.
- Look for a screening firm that has a structured review process in place to ensure data quality and reduce the likelihood that the information being received can legally be used for hiring purposes.
What exactly constitutes an extended workforce? An organization’s extended workforce includes contractors (temporary employees), volunteers, trainees, students and other persons who enter the workplace and perform duties. For many companies, this intricate people web is one that delivers a number of benefits, but, many don’t realize that it also introduces significant risk if not managed properly.
Employers give careful consideration to the screening of their employees and for good reason. They contemplate negligent hiring, the position, related job duties, legal requirements and elements that should be part of the background check as well as disqualifying factors.
- Do any of your extended workforce personnel have access sensitive areas within your company?
- Are they ever without direct visual supervision or come in contact with the public? Other employees?
- Do they have any decision making latitude or access to financial instruments? Intellectual property?
Shouldn’t their background check meet the same standard as your employees? The bottom line goal of any screening program is to minimize risk for negligent hiring, ensure the safety of the workplace, customers and public as well as to comply with the law. It is not disputed that companies that fail to conduct a proper background check expose themselves to significant liability. Many companies underestimate that this is also true when it comes to their extended workforce.
An extended workforce may include temporary workers that come from a staffing firm, suppliers who perform work onsite as well as other types of sub-contractors. Why would an organization with stringent requirements for their own employees not hold other onsite workers to the same standards? I submit that many perceive the responsibility and liability to be on the staffing firm or the sub-contractor’s business while others simply find it a daunting task to manage such a program with proper oversight. This perception of narrow liability and difficulty, however, couldn’t be further from the truth.
Employers should be aware that liability is likely for the majority of scenarios where criminal acts are carried out by members of their extended onsite workforces, particularly if an individual has a prior history of the behavior. Case law in this area supports that employers have a duty to ensure a comprehensive background check has been conducted and in some cases may be considered as a co-employer. In a co-employment context, the employer and the vendor’s firm share many of the same employment risks and responsibilities, which translates to liability for a deficient background check.
We educate our clients in this area and counsel them that they must go further than simply having a screening policy for their extended workforces. They must ensure that those standards are being met and met consistently. We recognize that without the proper tools, it can be difficult for companies to facilitate the oversight and management necessary to achieve this end goal. The risk posed by a company’s workforce is certain, but, the difficulty in managing compliance doesn’t have to be.
CredentialCheck®’s CC-Verify solution has the ability to simplify, automate and manage all levels of vendor compliance for screening and training functions. CC-Verify is a robust technology that enables companies to be certain their staff, suppliers and sub-contractors all meet required compliance objectives on an ongoing basis. Multiple tiers of companies can be registered with automated indicators as to which employees have met the principal company’s background screening and training standards for a given time frame. The solution is vendor neutral meaning that more than one background screening firm can be approved by the top level organization for use by sub-contractors and vendors. CC-Verify is a complete lifecycle vendor compliance management solution that is instrumental in keeping workplaces safe all the way through the extended workforce and beyond.
For more information about Credential Check’s CC-Verify solution or to request a demonstration, please contact us at (888) 689.2000 or firstname.lastname@example.org.
Every year millions of people attend county and state fairs, whether it is for the elephant ears or the rides it’s always a great time! Recently state representatives in Washington have taken a step forward to ensure that these types of events aren’t just fun but safe.
Currently Massachusetts and Illinois are the only states to require sweeping background checks for all fairs and carnivals. Republican Rep. Liz Pike is looking to add Washington to that short list. Companies that provide the rides and entertainment have been allowed to screen their own candidates if they wish, but they are not required to. Funtastic an Oregon based company requires all employees assisting or working with events to be background checked and has been providing team members to the Washington Fair for many seasons.
It’s incredible to me that events that are attended heavily by children are not required to perform background checks including Sex-Offender searches on employees and volunteers. Incidents such as an event that happened last year in August when a 50 year old Washington Fair employee tried lure a 9 year old girl into a barn on the last day of the fair, is a prime example of the horror that can come from what should be a fun experience.
Even with the recent incidents, Washington is finding it difficult to pin-point a best practice for screening these individuals. In Illinois, fairs and carnivals are not tasked with performing the background investigations only ensuring that the individual has had one in the past. The question that continues to concern these employers and events is the funding. These fairs employ 400-1500 employees for a given season and they are concerned that the cost of doing criminal checks will cause fairs to be a thing of the past.
For more information on this topic and more, contact Credential Check Corporation at 888-689-2000 or email@example.com
The Ohio SHRM Annual Conference is a great event for HR Professionals to exchange information, ideas and experiences. The theme this year is “HR Marathon, Setting the Pace for the Future.”
CredentialCheck® is excited about exhibiting at the upcoming event at the Kalahari Resort in Sandusky, OH. 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.
If you are attending, we hope you will stop by booth #3 in between the great sessions that are scheduled.
Enter to win a Coach Handbag!
For more information on this event or any topic, please contact Credential Check Corporation at 888-689-2000 or firstname.lastname@example.org.
According to an article put out in August by SHRM, class action lawsuits against employers for violations of the Fair Credit Reporting Act (FCRA) are not just on the rise but are being considered an emerging trend. For a law that’s been in existence for decades, we have recently seen an unprecedented number of employers realizing the hard way that compliance with this law is not to be taken lightly. The SHRM article was drawn on a report by Littler Mendelson and provides a comprehensive summary of recent class actions against employers.
The FCRA seeks to protect consumers from the potential devastating impacts of misuse and inaccurate information and puts into place protocols for consumer reporting agencies (CRAs) as well as the users of consumer reports to follow. The FCRA imposes requirements upon consumer reporting agencies (“CRAs”), in many cases a background screening firm, that collects and compiles consumer information into consumer reports for use by credit grantors, insurance companies, employers, landlords, and other entities in making eligibility decisions affecting consumers. It also regulates the use of these reports by these organizations who obtain these reports and imposes other specific responsibilities they must carry out as well.
Most companies know that to provide a safe work environment for their employees and the public and to minimize negligent hiring risks, that performing a background check is a vital business element on several levels. For one, courts have ruled that employers have a general duty to conduct a background check and state and/or federal law may also dictate a specific check must be performed. It is imperative that the background check was conducted according to best practices, is compliant with the law and is properly validated for accuracy. The good intentions many employers have to perform a background check can go sideways quickly if the letter of the law is not followed.
From a broad perspective, employers have a number of responsibilities under the FCRA. There are requirements before a background check is even requested and if the information is used to make a decision that adversely affects a consumer, another set of processes and disclosures must ensue. We’ve talked a lot in the past about the maximum possible accuracy standard which the CRA must ensure but arguably, employers also have a duty to ensure the information they are buying from their screening firm meets this standard.
Noted in the Littler report is a breakdown of class actions filed this year to be no less than 27 with cases highly concentrated in California, Florida, Georgia and Missouri among others. Some of the settlements include:
- National pizza delivery chain – $2.5 million settlement
- National retailer – $3 million settlement
- Transportation company – $2.75 million settlement
- Transportation company (different) – $4.4 million settlement
- Transit provider – $5 million + settlement
The report notes that the most frequent claims against employers included issues with their disclosure form and failure to follow adverse action processes as mandated by the FCRA. These two items also topped our list of Top Areas of Employer Non-Compliance in their workforce screening programs.
There are many things employers can do to ensure compliance under the FCRA. Many rely on their background screening partner, in part, to assist in their compliance efforts. A background check is very important, but, just as important is having a consistent, repeatable process in place to ensure legal compliance and that appropriate care is taken to uphold the rights of consumers as required by law.
For more information on this or any of our topics, please contact Credential Check at (888) 689.2000 or email@example.com.
A class action lawsuit has been filed against the Washington Metropolitan Area Transit Authority (WMATA) alleging unfair background screening policies that disproportionately affected African American applicants. The plaintiffs claim that qualified job applicants were not hired due to a range of criminal convictions for which the transit authority did not consider timelines of the offenses or how the crimes related to the duties of the job. They criticize the WMATA’s policy for being overly broad, unjustifiably rigid and unduly harsh.
The EEOC issued revised guidance on the use of criminal records in the hiring decisions in April 2012. The impetus behind revising the guidance stemmed from concerns that employers were using criminal history information too broadly and in a manner that potentially discriminates against legally protected classes, in particular, race and national origin.
The revised guidance more firmly outlined the 3 factors of consideration that were predominant in the prior guidance:
- The nature and severity of the crime
- The time elapsed since conviction or release from incarceration
- The nature of the job
In this case, it is alleged that WMATA disqualified current employees based on criminal histories that were not related to their job and occurred a long time ago (in some cases, 20 to 30 years). The plaintiffs deem the information irrelevant to a fair assessment of employee honesty, reliability or safety.
The suit claims the WMATA’s policies included a zero tolerance stance for drug related convictions even if the candidate was drug-free with consistent employment for ten or twenty years. One plaintiff claims he was fired from his job due to a drug-related conviction even though he had successfully worked in the position for 5 years and, further, he asserts he disclosed the conviction during the application process. The plaintiffs seek to have class members restored to their rightful positions, for applicants to be given priority consideration for job vacancies in the positions for which they are qualified, back pay and benefits, compensatory damages, front pay and damages.
Employers with practices that automatically exclude candidates from consideration just for having a criminal history may be at odds with current civil right laws unless requirements are imposed by state or federal law. Further, “Ban the Box” initiatives are sprouting up around the country that make it unlawful to ask about a candidate’s criminal history on the employment application (I.e. Have you ever been arrested or convicted of a crime?). Additional requirements and steps may be required by municipal, county and/or state laws in the use of criminal records in hiring decisions.
If your organization has not recently revisited current practices involving use of criminal records in employment decisions, we urge you to do so. The numbers of lawsuits of this type continue to rise and come with significant costs to employers who come under scrutiny.
For questions regarding this post or the EEOC’s guidance, please contact our offices at (888) 689.2000 or firstname.lastname@example.org.
Yesterday New York Governor Andrew Cuomo signed a new law that requires more stringent background checks for volunteer firefighters.
When considering this new law, the governor’s office recognized that firefighters are people who often interact with the most vulnerable of people, including children. The new law seeks to make communities safer by ensuring volunteer organizations keep their fire-teams free of sexual offenders and predators.
This story is not the first of its kind in NY as previously fire departments established that if a candidate applied for a position that had committed arson that they were disqualified. The amount of time firefighters spend interacting with the public, whether it is house fires or career days at local schools, without proper screening, kids and the public are potentially at risk.
Volunteer programs frequently lack a proper screening program and often have gaps that can enable individuals with a criminal record to slip through the cracks. These organizations often have limited budgets for properly screening volunteers which can make these organizations’ survival all the more difficult. Solutions do exist for these volunteer organizations that are budget conscious and still achieve a comprehensive background check that is appropriate for the types of interactions the person will have with the public or vulnerable populations (children, elderly or those who are receiving care in a medical setting).
Another option for volunteer organizations is to institute a self-pay program. These programs carry a cost of typically between $15-$25 dollars that the volunteer themselves pay. This allows the organization to screen volunteers with a professional screening firm that can ensure compliance with state and federal laws by providing information that can legally be used in making a hiring decision. Though on the surface, it may seem like a viable option, we strongly caution against ‘do it yourself’ background checks for a number of reasons. A professional screening firm can lead companies through the maze of compliance requirements and ensure that the information being used is complete, up to date and the best source.
For more information on screening volunteers or employees, contact Credential Check Corporation at 888-689-200 or email@example.com
Credential Check continues to monitor Ban the Box legislation and its rapid proliferation in states, counties and municipalities across the United States. Ban the Box continues to be a problematic compliance issue for employers due to the scope and rapid fire adoption rate of this legislation and employers are scrambling to adjust their processes to comply with a range of differing requirements.
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 and are intended to better allow an applicant to progress through the hiring process strictly on their merit prior to their criminal history being a consideration.
Summary of the IL Law
The Illinois Job Opportunities for Qualified Applicants Act goes into effect January 1, 2015 and will prohibit private employers with 15 or more employees from inquiring into or considering an applicant’s criminal history until certain milestones in the hiring process have been met.
The candidate must first be determined qualified for the job and selected for an interview. If there is no interview, the inquiry may not be made until after a conditional job offer is made.
These requirements do not apply if:
- The State of Illinois or federal law already disqualifies a candidate with certain criminal convictions from an applied-for position.
- When a standard fidelity or equivalent bond is required and an applicant’s conviction of one or more specific offenses would disqualify him or her from obtaining said bond.
- The position is one that requires licensing under the Emergency Medical Services Systems Act.
In these cases, the employer may notify applicants in writing of the specific disqualifying offenses.
Violations for Non-Compliance
The Illinois Department of Labor investigates alleged violations and may impose civil penalties.
- First violation – written warning with 30 days to remedy.
- Second violation or first violation fails to be remedied in 30 days – civil penalty of up to $500
- Third violation, subsequent and prior not remedied violations – $1500 for every 30 days that passes.
Ban the Box legislation’s wildfire adoption in states, counties and municipalities across the country underscores the importance for employers to stay abreast of these changes and effective dates to ensure they adjust their hiring processes to remain compliant. This coupled with the EEOC’s Revised Guidance on the Use of Criminal Records, which supports the spirit of Ban the Box, states 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 equates to more than a simple policy change.
If employers are routinely inquiring into their applicant’s criminal histories on the employment application, this practice is sure to put the company at risk.
For more information about this or other states, counties and municipalities who have adopted similar legislation, please contact our office at (888) 689.2000 or firstname.lastname@example.org.