EEOC Examines Arrest and Conviction Records as a Hiring Barrier

On July 26, 2011 the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss the employment barriers faced by individuals with arrest and conviction records.

A recap of the meeting can be found here.

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3 Myths About Employing People With Criminal Histories

Stephanie R. Thomas, hosts “The Proactive Employer Podcast“, which is a weekly broadcast dedicated to EEO compliance and employment litigation risk management.

Last week she reported on the myths about employing people with criminal histories.

Here’s a recap of the podcast:

Each year, more than 700,000 people are released from federal and state prisons, and another 9 million cycle through local jails. Federal agencies are funding reentry efforts in communities all around the country, and the Obama administration is working across agencies to coordinate and advance efforts through the Federal Reentry Council.

Part of the reentry process is finding employment.

In this installment of The Proactive Employer Podcast, Stephanie talks about what the Federal Reentry Council is doing to assist with employment efforts. She talks about three common myths regarding employment of individuals with criminal backgrounds and she also covers common questions regarding employee background screening.

THE MYTHS

MYTH #1 : People with criminal records are automatically barred from employment.

• FACT: An arrest or conviction record will NOT automatically bar individuals from employment.
• Get the Myth Buster fact sheet (PDF).

MYTH #2: Businesses and employers have no way to protect themselves from potential property and monetary losses should an individual they hire prove to be dishonest.

• FACT: Through the Federal Bonding Program (FBP), funded and administered by the U.S. Department of Labor (DOL), fidelity insurance bonds are available to indemnify employers for loss of money or property sustained through the dishonest acts of their employees (i.e., theft, forgery, larceny, and embezzlement).
• Get the Myth Buster fact sheet (PDF).

MYTH #3: The Federal Government’s hiring policies prohibit employment of people with criminal records.

• FACT: The Federal Government does not have a policy that precludes employment of people with criminal records from all positions.
• Get the Myth Buster fact sheet (PDF).

Need help in sorting out the facts from myths about employee background checks? Give us a call at 1-800-809-2419. We’d love to hear from you.

Is It Legal For An Employer To Charge A Potential Employee For A Background Check?

I recently checked out Quora which is getting a lot of buzz lately (with mixed reviews). What is Quora you ask? The best way to describe it is it’s a Q&A social networking site. I’m not sure if Quora is going to be social media’s newest “it” platform, but I did find some questions on employee background screening that you might find helpful.

Here’s one question that I recently answered:

Q - Is it legal for an employer to charge a potential employee for a background check? If a business requires employees to be screened for past criminal behavior, is it acceptable to charge potential employees for the cost of the screening?

A- There is no federal law that prohibits employers charging a potential employee for a background check but the following states (and Washington, DC) have laws that limit this practice:

• California, Minnesota, Washington,DC - the employee cannot be required to pay for a background check as a condition of employment.

• Vermont - limits an employer charging a potential employee for a background check if they are using specific sources.

• Kansas - employers can’t require potential employees to obtain their own records and give them to the employer.

What questions do you have about background checks?

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The Challenges of Background Check Compliance for Employers

Littler Mendelson’s Privacy & Data Protection Practice Group just published an excellent article highlighting the challenges of background check compliance for employers:

New California Law Illustrates Challenges of Background Check Compliance for Employers

“Background checks seem to be a hot topic in state legislatures these days. In the past six months, for example, several states — including Illinois, Massachusetts, Oregon, and most recently California — have enacted laws bearing upon the process of checking the backgrounds of job applicants and employees. Under the new California law (pdf), effective January 1, 2012, background check authorizations must include the “Internet Web site address . . . where the consumer may find information about the investigative reporting agency’s privacy practices.” This seemingly trivial change is endemic to the challenges that employers confront in the area of background check compliance.”

Read more…

Smart, Compliant Hiring Decisions Made Easy

FYI Screening can help your company navigate the compliance maze. You’ll feel confident that you’re using the most up-to-date, accurate information available to ensure a safe and compliant environment for your workforce and customers.

• Contact us for a background screening consultation.
• Subscribe to our blog to stay informed.
• Follow on Twitter for the latest news and tips on background checks, HR, security, privacy and more.
  

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Everything You Need To Know About Form I-9 Compliance

Why Employers Must Verify Employment Authorization and Identity of New Employees

Source: U.S. Citizenship and Immigration Services (USCIS)

In 1986, Congress reformed U.S. immigration laws. These reforms, the result of a bipartisan effort, preserved the tradition of legal immigration while seeking to close the door to illegal entry. The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA). These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.

Employment is often the magnet that attracts individuals to reside in the United States illegally

The purpose of the employer sanctions law is to remove this magnet by requiring employers to hire only individuals who may legally work here: citizens and nationals of the United States, lawful permanent residents, and aliens authorized to work.

To comply with the law, you must verify the identity and employment authorization of each person you hire, complete and retain a Form I-9 for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship.

Form I-9 helps employers to verify individuals who are authorized to work in the United States.

Resources

• Handbook For Employers (pdf)  - provides guidance on how to properly complete Form I-9, and answers frequently asked questions about the law as it relates to Form I-9  (Source: U.S. Citizenship and Immigration Services (USCIS)

• Frequently Asked Questions about I-9 Compliance (Source: Peng & Weber, U.S. Immigration Lawyers)

• What You Don’t Know About Employment Eligibility Verification May Cost You (Source: Bracewell & Giuliani LLP,  an international law firm)

Smart, Compliant Hiring Decisions Made Easy

FYI Screening offers smart background screening technology & practices that allow companies to quickly become more competitive, compliant & efficient.

• Subscribe to our blog to stay informed
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• Connect on LinkedIn

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Possible Amendment to Fair Credit Reporting Act - Ban Employers’ Use of Credit Checks

Seyfarth Shaw LLP, one of America’s leading full-service law firms, reported Senator Dianne Feinstein of California recently introduced SA 3795 as an amendment to the  Fair Credit Reporting Act.

“Senator Feinstein’s bill proposes to restrict an employer from using a “consumer’s creditworthiness, credit standing, or credit capacity” in making any employment decision or for the basis of taking any adverse action—regardless of whether a consumer gives an employer consent to use such information.

The only exceptions to this prohibition would be for:

1) national security or FDIC clearance;

2) employment with state or local government agency which requires the use of this information;

3) employment in a management position with access to customer funds at a financial institution; or

4) as otherwise required by law.”

Read More

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Employee Screening Newsletter - Spring 2010

The Spring 2010 edition of our Safe Hire newsletter is available for viewing. We publish our newsletter on a quarterly basis to keep employers better informed about employee background screening trends, legal compliance issues and company news.

In this issue we’re going to cover EEOC compliance and investigations, record retention and a technology update.  Please let us know if there are any specific topics or questions you want us to cover.

Read the Safe Hire newsletter

Sign-up to Receive The Safe Hire Newsletter

Is Your Employee Background Screening Policy Up To Date?

Employment law firm Outten & Golden LLP just released this news:

Accenture Sued for Discrimination Over Background Checks

Accenture, one of the largest management consulting firms in the world, conducts background checks that discriminate against African Americans and Latinos, a class action lawsuit filed in New York federal court today alleges.

The lawsuit, filed on behalf of Roberto J. Arroyo, of Morristown, N.J., accuses Accenture of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even where the criminal history has no bearing on the individual’s fitness or ability to perform the job.

According to the Complaint, “Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.”

Employers Must Revisit Their Hiring Policies to Incorporate Ex-Offenders into the Workplace

Melissa E. Pierre-Louis, an associate at Outten & Golden LLP, offers excellent advice to employers in an article published in an American Bar Association Labor Employment Law Flash in February 2010:

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance regarding the steps employers must take to avoid liability. The EEOC advises employers to undertake three steps in determining whether to screen out a candidate with a criminal conviction.

1. The employer must consider the nature and gravity of the offense.
2. The employer must consider the length of time that has passed since the conviction.
3. The employer must consider the relationship of the conviction to the particular duties and responsibilities of the job in question.

The massive rise in incarceration rates in the past few decades, coupled with efforts by advocates and the Obama administration to help offenders “reenter” society, means that employers will likely see a significant increase in the number of ex-offenders in their applicant pool in the coming years.

Employers who continue to apply blanket bans on hiring ex-offenders or who fail to implement hiring criteria that take into account the nature of the offense and its relationship to the job face significant exposure to charges of race discrimination.

“Simply put, now is the time for employers to align their policies with state and federal requirements.”

Proper planning, legal review, and prompt implementation are critical to avoid liability. As a first step, employers should revisit their hiring policies in light of EEOC guidance. In addition, employers should become aware of the protections afforded to ex-offenders by state law. For example, New York State and City law offer greater protections to applicants with criminal convictions. They prohibit employers from turning down an applicant because of his criminal conviction unless the employer undertakes a case-by-cases evaluation of each applicant and can show that there is a “direct relationship” between the applicant’s prior offense and the employment sought or that employment of the applicant would pose an unreasonable risk to property or the public.

FYI Screening - Smart, Compliant Hiring Decisions Made Easy

You can feel confident that you’re using the most up-to-date, accurate information available to ensure a safe and compliant environment for your workforce and customers. Our smarter background screening technology and practices allow companies to quickly become more competitive, compliant & efficient.

• Contact us for a background screening consultation
• Subscribe to our blog to stay informed
• Follow on Twitter
• Connect on LinkedIn

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Another State Restricts Use of Credit Reports in Employee Background Screening

On March 29, 2010, Oregon Governor Kulongoski signed legislation (S.B. 1045) that specifically prohibits employers from using credit history in making hiring, discharge, promotion, and compensation decisions unless the applicant or employee is given advanced written notice and the credit history is substantially job-related. Although the proposed legislation was to be effective July 1, 2010, the Governor declared the legislation effective immediately.

Oregon joins Washington and Hawaii as one of three states that have effectively banned workplace credit checks. There is also pending legislation in Illinois that recently passed the House of Representatives, which would impose similar restrictions. This trend underscores the importance of employers being aware of state law restrictions pertaining to credit and background checks,  particularly in multistate businesses.

There are four exceptions to the Oregon law:

1. Bank and credit union employers
2. Employers that are required by state and federal law to use credit histories for employment purposes
3. Public safety officer employers
4. Employers that can demonstrate that credit information is “substantially job-related” and that provide written disclosure of the reasons for the use of the credit check

The statute does not further define what “substantially job-related” means, nor has the Oregon Bureau of Labor and Industries (BOLI) adopted rules to inform employers on how it will be applied.

In the absence of clear rules or guidance from BOLI, employers that intend to continue utilizing credit histories after March 29th, 2010, should proceed with caution and consult legal counsel to determine whether they fit into one of the statute’s exceptions. If they do not fit within an exception, employers should develop alternatives to current practices to avoid penalties and civil liability. A violation of the new law is an unlawful employment practice, and an aggrieved individual can file a complaint with BOLI and a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney’s fees.

Compliance steps for Oregon Employers:

• Do not run credit reports for employees or applicants, unless your company fits into one of the four exceptions.
• Seek counsel to determine if credit information is “substantially job-related.”
• You can still run other types of background checks (criminal record searches, employment and education verifications, etc.) as you did before this law.

Sources:  Seyfarth Shaw, Davis Wright Tremaine LLP

Photo credit: Neubie

NH Courts to Close As Furloughs Hit Judicial System

In order to meet a budget shortfall of 3.1 million dollars, the New Hampshire Judicial Branch announced that all New Hampshire courts and judicial branch administrative offices will be closed on the following days:

• Friday April 2, 2010

• Friday April 30, 2010

• Friday May 28, 2010

Read more about the court furloughs (pdf).

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