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Is Your Employee Background Screening Policy Up To Date?

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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.

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Another State Restricts Use of Credit Reports in Employee Background Screening

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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

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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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New Mexico Job Seekers Don’t Have to Disclose Criminal Records

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Here is an interesting trend that we will be watching.

The New York Times reports:

New Mexico became the second state to ”ban the box” with Gov. Bill Richardson’s signature on a law prohibiting employment applications for government agencies from asking job seekers if they’d been convicted of a crime.

The measure was signed Monday and covers job applications for state, county or local government but not private business.

The legislation doesn’t prohibit employers from asking the question once they’re face-to-face with applicants and doesn’t stop them from doing background checks.

It passed the New Mexico Senate 35-4 and the House 54-14.

The National Conference of State Legislatures and the National Employment Law Project say Minnesota passed similar legislation in 2009, becoming the first state to outlaw the conviction question.

Source

Legislative Alert – Maryland HB175 Seeks to Limit Use of Credit Reports by Employers

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We just received this alert from The National Association of Professional Background Screeners (NAPBS).

Maryland HB175 Seeks to Limit Use of Credit Reports by Employers

Maryland House Bill 175 would prohibit an employer from using an applicant’s or employee’s credit report or credit history in determining whether to deny employment to the applicant, discharge the employee or determine compensation or terms, conditions, or privileges employment; authorizing an employer to request or consider an applicant’s credit report or credit history under specified circumstances; authorizing an applicant or employee to bring an action for injunctive relief, damages, or other relief for a violation of a specified provision of law; etc.

We urge you to participate in this action alert to communicate the impact this will have on employers in Maryland and on companies providing background screening services both in Maryland and nationally.

Here is the letter that we’ve sent:

Dereck Davis, Chairman,   House Economic Matters Committee

Re:  MD House Bill 175

I am writing in opposition to House Bill 175 – Credit Reports and Credit Histories of Applicants and Employees.  This bill, if enacted, would effectively prohibit employers from utilizing credit history in hiring prospective employees.

We are a member of the National Association of Professional Background Screeners (NAPBS) which represents over 700 members and their respective companies.  Our company is a national provider of background check and credential verification information for employers. Our clients are representative of the more than 88% of companies in the US who perform background checks on their employees across the country.  Our information products protect employers from liability and ensure that newly hired employees pose no financial risk.

Credit reports are integral to the hiring process because employers must determine the accuracy and completeness of a job application. Credit reports are used for employment checks to show former addresses, former employment, and the financial situation of a prospective employee. By using credit reports in the hiring process, employers avoid wasting resources on recruiting, hiring, and training new employees, only to find out later that the hiring decision was based on incomplete or falsified information. Also, employers use credit reports to safeguard against internal theft that can be a result of employees who can not meet their monthly financial obligations.

The use of credit reports for employment decisions is governed and expressly allowed by the federal Fair Credit Reporting Act (FCRA). Under the FCRA, an employer must give the consumer notice that a credit report may be used in the hiring process and require the consumer’s written consent to access their credit report. The FCRA provides important consumer protections by requiring a notice by the employer if an adverse action is taken; i.e. the applicant is not hired. The notice includes the name, address, and phone number of the consumer reporting agency or credit reporting agency that supplied the report.  Additionally, under existing federal law, potential employees already receive certain protections relating to employer consideration of prior bankruptcy filings.

It is our hope that Maryland employers will be allowed the continued use of credit reports for hiring decisions.  If you have any questions concerning how credit reports are used by employers to make decisions, please feel free to contact me.   Thank you for your time and consideration of our views.

Sincerely,

Chris Miller

President

FYI Screening, Inc.