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Background Checks, Part Three: The Law, Best Practices, and Your Organization

Best Practices

Welcome to part three of our ongoing blog series covering the growing number of laws regulating pre-employment background screens. As your trusted partner, we’re here to help keep you as compliant as possible, and welcome the opportunity to provide information through our blog. Haven’t read our previous entries yet? We invite you to read part one here and part two here.

State and Local Ban-the-Box Legislation

Ban-the-Box laws limit when an employer may permissibly ask about an individual’s criminal history. Until recently, many employers asked questions of this nature on their employment application. The growing trend in the law is to prohibit this practice. Ban-the-Box law prohibits any covered employer (engaged in commerce or in any industry or activity affecting commerce, and employing 50 or more for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year) from asking about criminal history until after a first interview or conditional offer. However, each state and local law is nuanced as to what can be asked and when. These laws are not limited to asking a candidate to self-disclose his/her criminal history. Instead, they also require employers to wait until a later time to actually order the criminal background check. Some also require employers to post certain notices in their workplace or to include certain statements about the consideration of criminal history in job solicitations and advertisements.

Currently, New York City and Los Angeles have the nation’s most comprehensive Ban-the-Box laws.

Additional Best Practices to Consider During the Background Check Process

Criminal history policy is just one of many important areas to review and understand when conducting background checks for employment purposes. These are some additional best practices for your company to consider:

  • Review Job Descriptions: Companies should review the requirements of each position and determine whether a background check is necessary for that position. Also, review and consider narrowing the positions for which credit reports are run, and make sure the information requested from each candidate is relevant to the specific position for which the candidate applies. Review and comply with state and local laws that restrict or prohibit employer use of credit reports.
  • Review Policies and Procedures: Companies should review their background screening policies and procedures to develop processes ensuring all necessary notices and disclosures are being provided to candidates in compliance with Title VII, the FCRA, and any other applicable state or local laws.
  • Use Matrices Wisely: Companies should be cautious when applying their own bright-line policies (e.g. no-felon policies) without analyzing the factors set forth in EEOC guidance or as required by applicable state or local laws.
  • Consider EEOC Guidance: Companies should remember EEOC guidance and, when they are reviewing a candidate’s criminal history information, also consider (i) the nature and gravity of the offense; (ii) the time that has passed since the conviction and/or completion of the sentence; and (iii) the nature of the job held or sought; and apply the EEOC’s individualized assessment factors or any other factors required by applicable state or local laws. Companies should also determine how they will allow candidates to explain special circumstances surrounding their conviction criminal history information for purposes of an individualized assessment, including evidence of rehabilitation or other mitigating factors.
  • Consider the Timing of Background Checks: Companies should determine when to inquire about an individual’s criminal history and when to conduct a background check. The practice that will reduce a company’s risk the most is to make inquiries and conduct checks after making conditional offers of employment. Even then, companies should not automatically rescind an offer if they find something concerning in the background check, but should consider asking that person about the potentially disqualifying information. There could be an error in the report or some other legitimate explanation, such as identity theft.
  • Consider Whether to Ask Individuals to Self-Disclose Criminal History: Companies often ask whether the question is necessary given that they order a comprehensive criminal background check. However, where law permits, there may still be value in asking individuals whether they have ever been convicted of a crime. The practical reality is that some applicants lie, and courts have recognized the right of an employer to reject an applicant for dishonesty. Further, by not asking the question, a company that hires an individual who commits a violent or other egregious act may find it more difficult to defend against a negligent hiring claim because the victim will likely argue the company did not do enough to review the person’s history. On the other hand, by not asking the question, the risk of violating a Ban-the-Box law is greatly reduced (although some Ban-the-Box laws still apply to a company’s screening practices if they consider criminal history information with a background report or other public record searches).
  • FCRA Disclosures and Authorizations: Companies should regularly and carefully review their disclosure and authorization forms for compliance with the FCRA and state law. They should eliminate extraneous information from the disclosure form—including a release of liability from the candidate, at-will language, and any other “extraneous” information—and separate these forms into two documents.
  • Comply With Adverse Action Notice Requirements: Companies must also review their procedures, ensuring that pre-adverse action and post-adverse action letters are provided in accordance with the FCRA, including all the necessary federal, state, and local enclosures. The key is that companies must always provide candidates with a copy of their consumer report and a summary of rights under the FCRA, and give them a reasonable opportunity to dispute the accuracy of the report before adverse action is taken.

This blog is intended as information and not legal advice. Readers requiring legal or other advice regarding the matters discussed in this and the previous two blogs in this series should consult with experienced legal counsel.

A-Check Global is your trusted partner. If you have any background or drug screening related questions, our team of dedicated professionals are available to help, and can provide friendly, accurate guidance.

Reference

Devata, P. & Mora, J. (2018) Background Checks: A Primer for Staffing Firms on Complying With Federal, State, and Local Laws. [Issue Paper]. American Staffing Association

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Background Checks, Part Two: The Law, Best Practices, and Your Organization

Best Practices

Welcome to part two of our ongoing blog series covering the growing number of laws regulating pre-employment background screens. As your trusted partner, we’re here to keep you as compliant as possible, and welcome the opportunity to provide information through our blog. Haven’t read part one yet? You can read it here.

Engage a Trusted, Consultative Background Screening Company

The ideal background check is accurate, comprehensive, consistent, timely, and of course, legal. Coordinating these factors can be expensive and time-consuming, and the work involved differs depending on the location of the candidate and where he or she has lived in the past. For these reasons, most companies do not conduct their own background check but outsource this function to third parties—like A-Check Global—referred to as consumer reporting agencies.

Obligations Before Running a Background Check

The FCRA imposes legal obligations on companies that use background check reports which protect candidates from being denied employment because of incomplete or inaccurate information in their background check reports (“consumer reports”). Companies must ensure that an individual 1) knows that a background check is being conducted; 2) consents to having a background check conducted; and 3) is provided notification that information contained in the background check report may result in an adverse employment decision. Therefore, companies must obtain or provide the following:

  • Disclosure for Consumer Reports: Whenever an employer seeks to obtain a consumer report, the FCRA mandates that, before doing so, it must make a clear conspicuous written disclosure, separate from the application, to the candidate that a consumer report may be obtained. This must be given in a separate document, consisting solely of the disclosure, before a check is requested. This has been the subject of increased litigation in the last couple of years.
  • Candidate Authorization: An employer must also obtain the written authorization of the candidate prior to requesting a consumer report. As a best practice, companies should have their forms reviewed at least annually by counsel.
  • Certification to CRAs: A company must certify to the CRA that prior to ordering the consumer report, it will distribute the required written disclosure and obtain the required written authorization. The company must also certify that the information being obtained will not be used in violation of any federal or state equal employment opportunity law or regulation. Lastly the company must certify that it will comply with the adverse action requirements set forth in the FCRA and described below.

Obligations After Receiving a Background Check

  • Pre-Adverse Action Notification: Before taking any adverse action, such as not placing a candidate on a temporary or contract assignment, based in whole or in part on information in the consumer report, a company must notify the candidate that it is considering taking an adverse action based in whole or in part on information contained in the consumer report and provide the candidate with 1) a copy of the consumer report obtained from the CRA; 2) a summary of the candidate’s rights under the FCRA; and 3) any state specific notices. Currently a handful of jurisdictions, including New Jersey, New York, Massachusetts, New York City, Los Angeles, and Washington State, require additional notices. Additionally, several ban-the-box laws require employers to state the reason they are considering taking an adverse action (if the decision is based on criminal history) or to identify the potentially disqualifying criminal record.
  • Adverse Action Waiting Period: After providing the pre-adverse action notice, an employer must wait a “reasonable period of time” before taking the adverse action. The FTC has opined that a five-business-day waiting period is reasonable. The FCRA is clear that candidates should be given the “opportunity to be heard” to correct or challenge incorrect information on a consumer report before an employer actually takes adverse action.
  • Adverse Action Notification: After waiting a “reasonable period of time”, an employer must provide the candidate with 1) notice of the adverse action taken; 2) the name, address, and toll-free telephone number of the CRA that furnished the consumer report; 3) a statement that the CRA did not make the decision to take the adverse action and is unable to provide the specific reasons the adverse action was taken; 4) notice of the candidate’s right to obtain a free copy of the consumer report from the CRA within 60 days; and 5) notice of the candidate’s right to dispute the accuracy or completeness of any information in the consumer report furnished by the CRA. Additional notices may be required in some jurisdictions and, as with the pre-adverse actin notice, several ban-the-box laws, including those in California; New York City; Seattle; and Portland, OR (among others), require employers to state the reason they are taking an adverse action (if the decision is based on criminal history)or to identify the disqualifying criminal record.

Stay tuned for part three of this blog series to learn more about background screening best practices.

Reference

Devata, P. & Mora, J. (2018) Background Checks: A Primer for Staffing Firms on Complying With Federal, State, and Local Laws. [Issue Paper]. American Staffing Association

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A-Check Global and GDPR

What is GDPR?

For companies—including A-Check—who conduct international research using personal data, it’s critical to both understand and comply with regional legislative regulations. Even though we reside in the United States, we do business in compliance with evolving international data regulations.

GDPR, the European Union’s General Data Protection Regulation, takes effect May 25, 2018, and is designed to strengthen data protection in the European Union (EU) by regulating the collection, use, and processing of personal information for citizens of the EU. This new law expands its impact and scope to now include:

  • EU companies that process personal data
  • Non-EU companies offering services to EU individuals
  • Non-EU companies researching EU individuals in the EU (A-Check Global background screening, for example)

Personal Data includes any information relating to an identified person. For A-Check, this includes information like name, address, date of birth, and other data regularly collected during the background screening process.

A-Check Global’s focus on meeting upcoming GDPR requirements

The GDPR sets a number of rules into place for   – Data Controllers: entities that collect data directly from an individual   – Data Processors: entities that processes data on behalf of a Data Controller

As both a controller and processor, here’s how we will meet requirements of the regulation:

  • Responsibility and Accountability – We will inform data subjects (EU Individuals) exactly who is responsible for their data, and provide adequate levels of data protection for all information we maintain.
  • Lawful Basis for Processing – A-Check will obtain consent to process from the data subject, provide an explicit purpose for collecting their information (background screening), and allow them to withdraw consent at any time.
  • Data Protection Officer – A-Check has internal resources assigned to GDPR efforts and ongoing compliance.
  • Anonymization – A-Check encrypts personal data to ensure information cannot be tied back to the data subject without authorization.
  • Data Breach Notification – While a number of security measures are in place, and we do not anticipate an information breach, A-Check has policies and procedures to notify GDPR Supervisory Authority within 72 hours of a known data breach. Procedures are also in place to notify affected data subject(s).
  • Right of Access – A-Check allows applicants to request a copy of their report, and to be provided detailed information regarding the reasons we are collecting each piece of data we request.
  • Right to Erasure – Data subjects will have the right to request that any personal data stored by a controller be deleted.

 

Will A-Check Global be GDPR certified?

GDPR is not a certification program, so A-Check Global will not maintain any sort of GDPR Certification. GDPR is a law, and similar to how we are FCRA compliant in the United States, we maintain compliance with the GDPR.

We do hold a Privacy Shield certification, which demonstrates to EU entities that our data security processes and commitment to data transfer protection meet EU standards. We invite you to visit us online to learn more about Privacy Shield.

Questions?

If you have questions about the information contained in this document please feel free to reach out to our compliance team: compliancedept@acheckglobal.com.

 

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Background Checks, Part One: The Law, Best Practices, and Your Organization

Best Practices

When performing pre-employment background screens, there are a growing number of related laws that companies must comply with. So many, in fact, that we’ve decided to dedicate this topic to a three part blog series. We’re here to help keep you as compliant as possible.

Your First Focus—Implementing a Lawful Background Screening Policy

A background screening policy should be tailored to the unique needs of your company, and detail what background checks your company will run (e.g., criminal, credit, employment verification, education verification, driving records, etc.). Specific types of checks should be based on the relevant position, the relatedness of the check to the person’s ability to perform that job, and applicable legal limitations.

Obtaining criminal records is a great example to discuss further. When asking about or considering criminal records, the greatest pitfall to avoid is having a blanket policy automatically prohibiting your company from hiring an individual convicted of any offense at any time. In fact, some jurisdictions make such bright-line disqualification standards unlawful. Employers should consider the following factors when determining whether or not an exclusion is job-related:

  • The nature and gravity of the offense
  • The nature of the job
  • The time elapsed since the conviction or the completion of a sentence

In fact, there are many states and local jurisdictions that have addressed this very issue, and now require an employer to determine and exhibit whether or not the screening decision is a job related exclusion.

What about arrest-related inquiries? Employers should not ask about non-pending arrest records. If a candidate has an arrest pending, an employer may ask the candidate about the underlying conduct that led to the arrest and then assess accordingly. In some states, even asking about pending arrests is risky (e.g. California and Illinois). If a charge has been dismissed, however, it is risky to give any weight to that case and is unlawful to do so in some jurisdictions. Similarly, if a case has a deferred adjudication, or adjudication withheld, and the candidate has completed the terms of any condition placed by the court, companies should avoid taking any adverse action.

When to ask about criminal history: Your company should determine when to ask a candidate about his or her criminal background. Certain state and local “Ban the Box” laws prohibit including the question on an application, and the later in the hiring process your company asks the question, the less likely that the EEOC would be successful in pursuing a civil rights violation under Title VII. (Read our blog – a Fair Chance for Applicants-the Rise of Ban the Box Legislation to learn more).

Conduct an individualized assessment: Companies should allow candidates an “opportunity to be heard” to establish why their background should not bar their employment. The person(s) who conduct this assessment should be familiar with Title VII, EEOC guidance, FCRA, and any state or local employment laws.

Should you conduct a credit-related background check? Currently there is no EEOC guidance on how to properly conduct a credit-related background check. However, a company should consider conducting a similar analysis as that performed regarding criminal histories—analyzing the nature of the job, the nature of the negative information, and the time elapsed since the negative information arose, to determine whether a hiring prohibition is job related.

Mention the Fair Credit Reporting Act and how you comply: Your company policy should mention that you are familiar with the FCRA and outline how you comply.

Stay tuned for part two of this blog series to learn more about background screening best practices.

Reference

Devata, P. & Mora, J. (2018) Background Checks: A Primer for Staffing Firms on Complying With Federal, State, and Local Laws. [Issue Paper]. American Staffing Association

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Time for housekeeping: Let’s make sure you’re protected and compliant!

Business Man With Checkboxes

We at A-Check Global are thrilled you have chosen us as your business partner. A key element of our partnership’s mutual success is regularly working together to ensure your information and processes are up to date. Doing some annual housekeeping can further the ongoing protection of your account information and help confirm your hiring and employment practices remain fully compliant.

To begin, let’s review the following items:

  • Your User List: Let us know if there’s anyone on your user team(s) we need to add, remove, or edit. Has anyone’s access level recently changed or need updating?
  • Your Background Check Policy: when is the last time you read it? Does it need refreshing? Does it reflect changes in legislation that might impact your guidelines and hiring process?
  • Your separate Disclosure and Authorization forms: The emphasis here is on the word “separate.” Do you have current, compliant, stand-alone documents for your applicants?
  • Your Adverse Action process and communication: Are you currently compliant? Our Oct 2017 Blog is a great refresher!
  • Your adherence to Ban the Box Legislation: When in doubt, don’t forget you can always #AskACheck.
  • The compliance of your eSignature process (if applicable).

A-Check Global is your trusted partner. If you have any questions, 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 support@acheckglobal.com.