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FAIR CHANCE HIRING: What’s in a name?

Fair Chance Hiring—Ban the Box as it’s more commonly known—is legislation intended to help applicants with prior criminal histories make it past the first step of the hiring process. By design, it encourages employers to consider an applicant’s qualifications first, rather than immediately reject that person due to criminal history.

Prior to 2009, only Hawaii had Ban the Box legislation in place. Currently, 35 states and more than 150 cities/counties have enacted laws that limit what you can ask applicants. The newest is New York’s Westchester County effective March 4th.

In states or regions that have passed this legislation, you’re restricted from inquiring about an applicant’s criminal record until at least the job interview—or, in some cases, after a conditional position has been initially offered to the applicant. You also may need to delay the background screening process until your offer.

These 23 states have Ban the Box laws that apply only to public employers:

  • Arizona
  • Colorado
  • Delaware
  • Georgia
  • Indiana
  • Kansas
  • Kentucky
  • Louisiana
  • Maryland
  • Michigan
  • Missouri
  • Nebraska
  • Nevada
  • New Mexico
  • New York
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Tennessee
  • Utah
  • Virginia
  • Washington
  • Wisconsin

However, these twelve states restrict both public and private sector employers from asking about criminal records on job applications:

  • California
  • Connecticut
  • Hawaii
  • Illinois
  • Massachusetts
  • Minnesota
  • New Jersey
  • Oregon
  • Rhode Island
  • South Carolina
  • Vermont
  • Washington

You also may be restricted from asking questions about certain types of convictions, non-conviction arrests or expunged records.

Even if your state isn’t on the list, you shouldn’t assume these laws don’t apply to you. 15 cities and counties have taken the lead in creating Ban the Box laws that extend to private employers: Austin, Baltimore, Buffalo, Chicago, Columbia (MO), District of Columbia, Kansas City, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, and Spokane.

So, how will Ban the Box laws impact your hiring?

Please keep in mind, you’re not required to hire someone with a criminal record. Ban the Box legislation isn’t intended to force employers to hire someone with a criminal background over other qualified candidates, but rather to create a fairer decision-making process. It shifts the criminal history inquiry from the initial application stage until later in the hiring process, during an interview or after you extend a conditional job offer.

Contracting with a background screening company committed to compliance—like A-Check Global—can help you keep abreast of these laws while making hiring decisions. For more information about this topic, feel free to contact us at support@acheckglobal.com.

Reference

https://www.hrdirectapps.com/blog/does-your-state-ban-the-box-with-job-applications/

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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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Start the New Year with a Compliance Check-Up!

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As your 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.

Items for Your Review

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.

Commonly Used Documents
Forms and documents used on a regular basis can be easily considered “red-flag” items, and your team may be unaware of legislation updates that might make these every-day products subject to an audit finding. Review commonly used documents to ensure the information contained in or gathered from them is legal and updated.

Employee Training
Your ongoing training programs should promote focus on appropriate, ethical behavior; if it doesn’t, 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.

Compliance Manuals
Displaying compliance manuals on your shelf doesn’t necessarily mean you’re compliant. It’s a good idea to take them 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.

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 clientsupport@acheckglobal.com if you have any questions about your employment screening program.

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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.