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“In the Know” Part Three: Evaluation, Decision, and Compliance Checklists

This is the third and final in our three part series on responsible background screening. The first part covered End Users and Permissible Purpose; the second covered Disclosures and Authorizations and this final section covers Evaluation, Decision, and Compliance Checklists.

Evaluation: Using Criminal Records in the Hiring Process

On April 25, 2012, the Equal Opportunity Commission (EEOC) released its Enforcement Guidance Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. The purpose of the guidance was to shore up the Agency’s efforts against discrimination in the workplace based on disparate impact against persons with criminal records—potentially requiring employers to demonstrate business necessity before criminal searches are conducted.

(Read our blog – a Fair Chance for Applicants-the Rise of Ban the Box Legislation to learn more).

Decision: The Adverse Action 2-Step

FCRA § 603(k) defines the term “adverse action” to mean the denial, cancellation, increase of cost or any other “undesirable” outcome for a consumer when used in conjunction with an offer of insurance, credit, employment, licensure, or any other permissible purpose a consumer report can be used for. To comply with the requirements of FCRA § 604 and § 615, employers are required to deploy a two-step adverse action process prior to taking adverse action to provide the applicant an opportunity to review the consumer report and to dispute the accuracy of any content they feel is not accurate.

Your company or organization should regularly consult with your legal team to confirm your adverse process is current and compliant.

Compliance Checklist

A-Check highly recommends that our clients develop a Background Screening Policy, ensuring a consistent process is in place that can be audited and modified when necessary. A policy is not required but will go a long way in providing a defense to an organization that experiences a legal complaint from an applicant. An adequate background screening policy should contain a company-wide, streamlined process that includes standard operating procedures and current, compliant forms. Contact our Client Relations Department to receive a complimentary Policy Kit to help you get started.

Remember, if you ever have any questions about any of the material we have covered don’t hesitate to reach out to our team at support@acheckglobal.com.

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IMPORTANT NOTICE 1/23/19: Service Impact due to Government Shutdown

As of 1/23/19. information listed below is current:

As a result of the current United States government shutdown, several government services that employers rely on during employment screening may have limited operation or may not be available at all. This will – temporarily – impact A-Check’s ability to complete some screening components.

Unfortunately, we don’t know how long the shutdown will continue, but please be assured we’ll update this notice each Monday throughout the shutdown to keep you informed of ongoing impact. For now, we’d like to share information regarding the following services:

E-Verify:
Currently unavailable. When the government shutdown is resolved, A-Check will provide further guidance regarding delayed cases, including the “three day rule.”

 As your E-Verify Employer Agent for web services, we are prepared to queue up cases for all eligible employees with a completed Electronic Form I-9 in our system (who have not been submitted to E-Verify) and then auto process them when E-Verify is back up.

For those clients that only utilize our E-Verify service without our Electronic Form I-9, unfortunately, they will need to submit their E-Verify queries once the E-Verify service has been restored after the government shutdown ends.

CBSV (Consent Based Social Verification):
This service is currently running uninterrupted. However, we will provide updates should there be any change.

 Federal Criminal Searches (PACER – Public Access to Court Electronic Services):

This service is funded through January 18, 2019. Should the government shutdown last long enough to affect Federal Criminal searches, we will provide an update at that time.

IRS Documentation Requests:

Copies of Wage and Income Earnings Statements (in lieu of W2 copies) are unavailable.

 DOT 49 Part 40 form:

Requests for verifications are not being completed if required from an official government operated entity. A-Check can obtain forms if requested from a non-government run employer.

PRIA and FAA records:

Requests are not being completed if the request is made specifically from the FAA. A-Check can obtain a partial response if requested from a non-government run agency or airline.

Please contact us at clientsupport@acheckglobal.com if you have any questions.

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“In the Know!” Part Two: Law and Disclosure and Authorization, oh my.

As your trusted partner, we want to make sure you have access to professional guidance when making employment decisions. To that end, this is our second of a three part series in employment screening compliance. Last month we discussed End Users and Permissible Purpose; this month we’ll quickly cover Disclosures and Authorizations.

Disclosure: End User Must Disclose to Applicant Prior to Requesting a Report

PLEASE NOTE: Because an ever-increasing number of law firms now specialize in class action litigation regarding employer required FCRA Disclosure and Authorization, employers AND consumer reporting agencies should be equally as focused on technical compliance with applicable federal and state laws. Employers should not take short cuts by combining disclosures in the screening process even though “green thinking” and common sense dictate the shrinkage of paper and reduction of steps in the process. If utilizing technology to process Disclosure and Authorization, it is also highly recommended to ensure the electronic signature process utilized is in full compliance with the federal Electronic Signature in Global and National Commerce (ESIGN).

Authorization: Federal Law, State Requirements, and Collection of PII

Employers are required to obtain authorization from the applicant prior to requesting a consumer report for the permissible purpose of employment with only one exception – investigation of wrongdoing.

PLEASE NOTE: Since many organizations utilize the Authorization for a dual purpose in that it not only authorizes the consumer report but it also authorizes the release of information to the consumer reporting agency, class action law firms have taken advantage of this literal interpretation of the federal Fair Credit Reporting Act to successfully sue hundreds of employers for technical violations of the FCRA. If the Authorization form contains language such as “I hereby authorize my past employers and schools to release information about me” or include state required notices such as those in Minnesota, New York City, Oklahoma, or Washington, it will violate the FCRA if combined with the Disclosure.

In short, PLEASE present your Disclosure and Authorization forms as separate documents.

One last recommendation about the Authorization form: ensure that it states “I authorize the background check” and not “I agree to be background checked.”

Next month, RESPONSIBLE BACKGROUND SCREENING Part Three will cover Evaluations, Decisions and the use of a Compliance Checklist.

 

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“In the Know!” Part One: Responsible Background Screening

When it comes to background screening, there’s a lot to keep in mind—especially as the compliance landscape is constantly evolving. As your trusted partner, it’s our honor to provide ongoing guidance to help ensure you’re making informed, best practice, and fully compliant decisions when conducting background screens. To that end, this blog is the first of a three part series. This first part covers End Users and Permissible Purpose.

Compliance Guidance for End Users of Consumer Reports

The federal Fair Credit Reporting Act (FCRA) is the primary legislation regulating the procurement and use of a consumer report. The requirements for End Users of consumer reports are explained in detail throughout the FCRA but can also be found in a simplified document required to be distributed by consumer reporting agencies entitled Notice to Users of Consumer Reports: Obligations of Users under the FCRA. Rounding out regulatory compliance for domestic consumer reporting are state and jurisdiction specific consumer reporting laws that add additional procedures and disclosures to the process.

Who is responsible in the background check process?

This can be a very confusing topic to employers who depend on background check reports to make hiring decisions. There is a popular belief that the background check company is solely responsible for the entire screening process. However, the reality is that the background check process is a shared responsibility between those that request consumer reports (End User) and those that compile the consumer report (Consumer Reporting Agency).

Permissible Purpose: Legal Uses of Consumer Reports

FCRA §604 requires that all End Users must have a permissible purpose under the FCRA to obtain a consumer report. There are a variety of consumer reports utilized by Society to make decisions regarding consumers, e.g., whether or not to lend the consumer money (credit); to provide an insurance policy (driving record); to provide a place to live (tenant screening); and for employment (background checks). A-Check Global is a consumer reporting agency specializing in providing consumer reports to End Users for the permissible purpose of employment.

The term “employment purposes” is defined by FCRA §603(d)(3)(C)(h) as a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee. The Federal Trade Commission has expanded the definition of employee to also include Volunteers, Temps and Independent Contractors working in an “employment” type capacity. End users are required to contractually certify their compliance with the federal Fair Credit Reporting Act with their provider as a condition of service being provided.

Next month, RESPONSIBLE BACKGROUND SCREENING Part Two will cover Disclosures and Authorizations.

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Background Screening in the Age of Gig Employment

GIG 2The trend for freelance or short contract employment versus permanent positions has been steadily rising. Many cite the millennial generation’s penchant for flexibility and mobility as one of the main causes for this upward trend. Another cause may be that the digital age allows workers to complete jobs from anywhere; no longer forced to labor in an office environment. But whatever the cause it does create a new set of obstacles companies must surmount.

Importance of background screens

As the gig economy grows and companies continue to hire, businesses are doing everything they can to protect their brands and their reputations and to keep their existing employees and customers safe. And one of the best ways to do that is to conduct a thorough background screen.  Employment screening ensures better-quality hires, more consistent safety and security and improved regulatory compliance.

Although many companies usually vetted their full-time employees, they were apt to let part-time or independent contractors slide. But recent events have companies rethinking how they vet such workers, many of whom interact directly with consumers and represent a company’s brand. Gig employees generally have the same access to your clients and your intellectual property as your traditional workers so it makes sense to screen them to the same degree as your full-time employees.

We’re here for you

Gig employees move quickly; from accepting a contract to starting the project, there is little downtime, which means background screening needs to be fast. Companies must be able to trust their screening partner to deliver rapid turnaround times in order to leverage their independent workforce. This is where we come in. We provide multiple levels of service to satisfy all the screening requirements your company may have. Contact us today to learn more.