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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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What You Should Know About Social Security Numbers

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A recent National Law Review article reported that in 2019, the Social Security Administration (SSA) will restart its mismatch letter notification program. Through mismatch letters—formally titled Employer Correction Requests—the SSA notifies employers that the social security number (SSN) and name reported for one or more employees does not match SSA records. These notification letters advise employers that a SSN mismatch is not an assumption of SSN falsification or other misconduct. Mismatches can be caused by typographical errors, unreported name changes, incomplete records, or SSN misuse. In any event, employers who receive such letters must act promptly and are advised to document the steps taken to resolve the discrepancy.

Employer Action

Employers who receive a mismatch letter should check their personnel records for the employee in question to confirm the information in company records matches that provided by the SSA. Simple typographical errors or name discrepancies that led to a mismatch generally can be rectified quickly by submitting this information to the SSA. In the event the mismatch is not based on employer error, the employer should notify the employee of the mismatch, preferably in writing—and in turn, the employee must then resolve the mismatch. However, employers will remain responsible for ensuring the process is complete. To do so, employers may follow up with each impacted employee to confirm the steps they are taking and that a resolution does occur. Again, employer documentation of these steps is recommended.

It is important that employers not take adverse employment action (including formal discipline, termination, or informal forms of negative treatment) against employees solely based upon the notice that a mismatch has occurred. Employers must allow time for the employee to address and resolve the mismatch. In the event a mismatch cannot be resolved or SSN misuse is confirmed, employers should contact legal counsel to determine the appropriate steps to take with regard to the involved employee.

How We Can Help

A-Check Global provides our clients two methods to either verify or associate a social security number.

The Social Security Trace Report provides employers with an “association” between a social security number and the information housed by one of the major credit bureaus linked to the individual SSN. The report reveals information captured when the SSN is used for financial purposes like credit financing, leasing, student loans and even some court actions including judgments and liens. It can reveal additional alias names and addresses associated with the applicant not included in information provided by the applicant on their resume or application. The Social Security Trace Report may returned with a “no hit” result. This does not necessarily mean the social security number does not belong to the applicant or serve as an indication the applicant was untruthful. It may simply mean the applicant has not developed a credit history and/or the social security number was recently issued.

The Consent Based Social Security Verification or CBSV Report “verifies” a social security number and name coincide with Social Security Administration records. With the consent of the applicant, A-Check uses the CBSV report to verify the name and SSN provided by the applicant match the records maintained by the Social Security Administration.

Both the Social Security Trace Report and Consent Based Social Security Verification are valuable tools in mitigating hiring risk. Employers simply choose the right option to meet their specific screening needs.

And remember A-Check Global’s teams of dedicated professionals are available to answer any additional questions.

Reference

https://www.natlawreview.com/article/social-security-administration-to-resume-social-security-mismatch-letter?utm_content=3f102f241c1be6d0f68a3668f49d8d75&utm_campaign=Monday%20Trending%20News%20Digest%208-20-2018&utm_source=Robly.com&utm_medium=email

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IMPORTANT DISCLOSURE FORM UPDATE: A Summary of Your Rights Under the Fair Credit Reporting Act

On September 12, 2018, the Consumer Financial Protection Bureau (CFPB) issued a revised disclosure form document—“A Summary of Your Rights Under the Fair Credit Reporting Act”—in an interim final rule under the Fair Credit Reporting Act (FCRA).

Employers and background screening companies (A-Check Global) may begin using this new form beginning Friday, September 21, 2018, and are required to provide this disclosure to employees and job applicants per FCRA guidelines. Failure to provide correct disclosure notification can lead to increased risk, including litigation.

Why is this disclosure form changing?

In May 2018, and in response to significant data breaches, Congress passed the Economic Growth, Regulatory Relief, and Consumer Protection Act. The new law requires credit reporting bureaus, under certain circumstances, to provide consumers fraud alerts and unlimited, free national security freezes and freeze releases. These are intended to make it harder for identity thieves to open accounts in a consumer’s name.

The new legislation also amends the FCRA to exclude from consumer reporting information certain medical debts incurred by veterans. Additionally, it establishes a new dispute process with respect to such medical debt.

Finally, the new law mandates that whenever a background check company is required to provide a copy of the “A Summary of Your Rights Under the Fair Credit Reporting Act” to comply with FCRA 609 (full file disclosure requirements) or FCRA 605A (Victims of Identity Theft requirements) the “Summary of Consumer Identity Theft Rights” disclosure form, they also must provide a notice regarding these new security freeze rights. However, A-Check’s counsel has opined that there is some gray area in the legislation that could be argued by Plaintiffs’ Bar that this requirement extends to end user adverse action requirements, so A-Check made system adjustments to ensure our client compliance.

What A-Check Global is Doing

To err on the side of caution, ensuring our clients remain compliant with all interpretations of this new law, A-Check has appended the new security freeze notice into our existing Summary of Rights disclosure notification appearing at the back of all A-Check reports. When A-Check clients provide a copy of the A-Check report in the adverse process, the new freeze notice will be included. You can view a copy of the consolidated notice here.

By November 1, 2018, our systems will be updated to include a version of this disclosure with a fully integrated security freeze notice. Rest assured, our current version is compliant. You can view a copy of this upcoming notice here.

What Employers Need to Do

Please seek advice from your legal counsel to ensure your forms comply with the new requirement.

Got questions? When in doubt, don’t forget you can always #AskACheck. Our team of dedicated professionals are available to help, and can provide friendly, accurate guidance. Give us a call today at 877-345-2021, or email clientsupport@acheckglobal.com.

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An Update on Salary History Bans

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https://gusto.com/framework/news/salary-history-ban-map/

As your trusted partner, we want to make sure you are up to date on issues that may affect you. Which is why we wrote about salary history bans last year.

In that article we discussed that a growing number of cities and states are voting on or implementing legislation in favor of a salary history ban during pre-employment screening—prohibiting employers from asking wage history questions to job applicants or considering previous applicant salaries as a determining factor in employment decisions.

Asking for an applicant’s salary history may seem an innocuous enough question; one of many that has been standard pre-employment practice for years. But like criminal history, it may lead to an unintended bias against applicants.

Asking for a person’s salary history can perpetuate pay disparity.

Think of it this way; an employee works diligently for five years—earning incremental pay increases along the way—and now wants to apply that experience to a new position at a much larger company. Unfortunately, the larger company asks for the employee’s salary history before offering the new position instead of simply paying market value. That could easily result in pay disparity because this person made less money at the previous position. If this scenario doesn’t seem fair to you, you are not alone.

We’re keeping an eye on this growing trend.

As of August 24, 2018, the following states and cities/counties have implemented salary history bans:

State-wide Ban         Effective Date   City/County Ban                               Effective Date

California                  Jan 1, 2018         San Francisco, CA                            Jul 1, 2018

Connecticut              Jan 1, 2019         Chicago, IL                                        Apr 10, 2018

Delaware                  Dec 14, 2017       Louisville, KY                                   May 17, 2018

Hawaii                       Jan 1, 2019         New Orleans, LA                              Jan 25, 2017

Massachusetts          Jul 1, 2018         Kansas City, MO                                Jul 26, 2018

New Jersey               Feb 1, 2018         New York City, NY                           Oct 31, 2017

New York                  Jan 9, 2017         Albany County, NY                          Dec 17, 2017

Oregon                      Oct 6, 2017         Westchester County, NY                 Jul 9, 2018

Pennsylvania           Sep 4, 2018         Philadelphia, PA                              (TBD)

Puerto Rico              Mar 8, 2017         Pittsburgh, PA                                  Jan 30, 2017

Vermont                    Jul 1, 2018

And, it’s very likely this trend will continue. Please know that A-Check is keeping a close eye on this evolving legislation, and remain committed to developing solutions that ensure you have the ability to continue making informed pre-employment decisions.

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Time for a Compliance Check-Up?

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As a trusted business partner, we’re committed to helping ensure our clients are in compliance with FCRA, EEOC, state and local policies and procedures. A key component of our ongoing focus is to remind you that we’re here to offer guidance each and every time you audit your employment screening program.

How can we help you?

User Access Lists: When did you last check to see who on your team member roster has access—and at which level—to your background screening process? Your user list is an important piece of access control that can easily be managed. Take the time to ensure that your list is accurate by removing any inactive users. Only takes a moment to review, and we’re more than happy to help! We invite you to call or email your client support team today.

Compliance Manual: Having a compliance manual on your shelf doesn’t necessarily mean you’re compliant. It’s a good idea to take it off the shelf on a regular basis for a comprehensive senior management review. Ensure that the content is accurate and fulfilling its purpose. Be prepared to make changes if necessary.

Commonly Used Documents: Forms and documents used on a regular basis can be easily considered “red-flag” items. Due to their ongoing use, employees may be unaware of changes made to laws that make the forms and products they use every day the source of an audit finding. Review commonly used documents to ensure the information contained in or gathered from them is legal and updated.

Employee Training: When you read through your employee training manuals, do you feel empowered or scared? If your program relies more heavily on promoting punishment for non-compliance than a focus on appropriate, ethical behavior, you may want to make meaningful adjustments. Retool your materials to teach and instill a culture of compliant and ethical behavior from employees at all levels.

We at A-Check Global are committed to data security and are driven to protecting our client partners by providing the tools needed to succeed. Please contact us at compliance@acheckglobal.com if you have any questions about your employment screening program.