Complimentary HR Luncheon – Background Screening Compliance: Best Practices for California Employers

THIS EVENT IS BOOKED TO CAPACITY. If you would liketo be added to the waiting list, please contact us. Should cancellations occur, we will contact you by September 26th.

Join A-Check and AppleOne Employment October 1st for a complimentary luncheon presentation at Fleming’s Prime Steakhouse in La Jolla, one of San Diego’s best eateries. Learn about compliant employee screening practices with emphasis on California’s unique employer requirements. Attendees will earn 2.0 (General) credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

Learn more: HR Luncheon Flyer (PDF)

Agenda – Learn About
• Compliant employment screening practices, with emphasis on California.
• Compliance with FCRA applicant disclosure & reporting requirements.
• Responsibilities of information providers and end users of consumer reports under FCRA.
• Overview of applicable regulatory bodies and Risks to non-conforming employers.
• Use of credit reports in the hiring process. Continue reading “Complimentary HR Luncheon – Background Screening Compliance: Best Practices for California Employers”

White Paper – Colorado Joins Eight Other U.S. States Restricting Use of Consumer Credit Information for Employment Purposes

Colorado Restricts use of Credit reports for Employment

Effective July 1, 2013, Colorado will join California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington to become the ninth state to pass legislation restricting the use of credit reports in the applicant screening process.  There are approximately 20 other states that have similar pending legislation so we anticipate this trend to continue in the near future.  In response, A-Check is advising Colorado employers that utilize credit reports in their applicant screening process to evaluate and reassess their practices and procedures prior to the law’s effective date including a review of your background screening forms, including but not limited to the Consumer Disclosure/Authorization and Adverse Action notices, to incorporate Colorado’s requirements.

View this Compliance Update as a PDF

What Does this Mean to Colorado Employers?

Who?   The law applies to private sector employers with four or more employees.

Exemptions: Banks and/or Financial Institutions and employers who are required by law to procure consumer credit information can continue to utilize credit reports in their hiring process provided they abide by the new law’s additional adverse action requirements – discussed later in this document.

What?  In general, the new Colorado law prohibits employers from using “consumer credit information” for employment purposes unless the information is “substantially related to the employee’s current or potential job” unless they are one of the exception employers.

Substantially Related to the Position Defined:

  1. A position that constitutes executive or management personnel or their immediate staff with the following job responsibilities:
    • sets the direction or control of a business, division, unit or an agency thereof;
    • owes a fiduciary responsibility to the employer;
    • has access to customers’, employees’ or the employer’s financial information; or
    • has the authority to make payments, collect debts or enter into contracts.
  2. A position that involves contracts with defense, intelligence, national security, or space agencies of the federal government.

How?  How can a Colorado Employer stay in compliance if using a Credit Report?

  1. Ensure the positions you are utilizing credit reports for meet the criteria defined by the legislation.
  2. Provide the job candidate detail regarding the “bona fide purpose” for using credit reports for the position they are applying for.  A-Check recommends you utilize your Consumer Disclosure and Authorization to communicate your purpose to the applicant however, the law is silent as to when this disclosure must be made and does not define the term “bona fide purpose.”
  3. Adverse Action Requirements: The new CO law also expands requirements for employers when taking adverse action based on information in a credit report. Under this law, a Colorado employer is required to (1) provide disclosure to the applicant that it relied on credit information to make an adverse decision, (2) must note the specific information which the employer relied upon, and (3)  must use the same media in which the application was made.   Although the law does not detail when the disclosures must be made, in order to comply with the Fair Credit Reporting Act as well, A-Check recommends that employers do so prior to making any employment decisions.

A-Check Summary

Unless, (1) you are a bank or financial institution; (2) the report is required by law; or (3) the report is substantially related to the employee’s current or potential job and meets the additional requirements detailed above; an employer may not require an employee to consent to a request for a credit report that contains information about the employee’s credit score, credit account balances, payment history, account balances and the like as a condition of employment.

A-Check recommends two considerations when developing your policy and procedures to cover this aspect of your screening:

  1. The current focus of the EEOC is on employment hiring practices that create potential barriers of employment, including the use of credit information in employment. Therefore you may consider that when utilizing consumer credit information to make adverse hiring decisions to make it policy to afford the applicant or employee an opportunity to explain any unusual circumstance that led the occurrence. (e.g. error, lay off, identity theft, medical expenses etc. ).
  2. The Consumer Reporting is quickly changing trending towards increases in regulation.  All employers are advised to be aware of their policies in this respect and to keep abreast of developments in this area of the law.

If you have any questions regarding the contents of this document or for a review of your current Consumer Authorization and Disclosure form, please contact A-Check’s Compliance Department at 877.345.2021 or via email at compliance@acheckamerica.com.

View this Compliance Update as a PDF

For additional information, see article  by Seyfarth Shaw Labor Attorneys Pam Q. Devata and Natascha B. Riesco.

Use of Criminal Records Data – Best Practices

Best Practices for Employers in Light of EEOC Guidance on Use of Criminal Records

Summary

Employers’ use of background screening for job applicants should be reevaluated after the EEOC’s April 25, 2012, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The EEOC noted that an employer’s facially neutral policy can adversely affect an employee or applicant with a criminal history and have a disparate impact based on prohibited characteristics, such as race and national origin.

Per the EEOC’s Guidance, an employer cannot now simply reject an applicant because of his/her criminal record under an employer’s exclusionary policy. In the wake of the EEOC’s Guidance, employers using criminal background screening should now be prepared to prove a solid business reason (job necessity) for seeking the information.

Best Practices

The EEOC’s Guidance does not mean that employers should abandon [Criminal Records] background screening altogether. In fact, to do so could run afoul of an employer’s obligation to use reasonable care when hiring employees and lead to liability if third parties are harmed by an employee. Many courts have held an employer liable for an employee’s actions if the employer fails to conduct a reasonable investigation into the employee’s background prior to hiring.

In an effort to comply with these obligations without running afoul of Title VII with respect to criminal background policies, employers should at a minimum review their policies. In this regard, it is recommended that:

Employers develop a narrowly tailored written policy and procedures for screening applicants and employees for criminal conduct.

Employers identify in the policy the essential job requirements and the actual circumstances under which the jobs are performed.

The policy should determine the specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct.

Employers record the justification for the policy, procedures and exclusions, including a record of consultations and research considered in crafting the policy and procedures.

Employers train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.

Employers need to craft policies and procedures for conducting criminal background checks carefully, considering both the new EEOC Guidance and the need to provide a safe workplace with honest, productive employees.

Source: Reevaluating Employment Background Checks after the EEOC’s Guidance.Wilson Elser Moskowitz Edelman & Dicker LLP. By Sherril M. Colombo and Michelle Bergman.

NOTICE: The material presented in this communication is not to be construed as legal advice from A-Check America, Inc. but rather, a summary of the research conducted and material gathered on the subject matter. For additional information or guidance, please consult qualified legal counsel.