CIR's Background Screening Blog

Issues and Resources in Employment Screening

Data Brokers Settle with the FTC

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Does anyone care about privacy and accuracy in background screening. Hopefully these settlements will impact the background screening industry to provide quality services

Checkmate.com and a background screening company settled allegations by the FTC that the companies failed to provide accurate backgrounds and notifications to employers.

Instant Checkmate violated the FCRA by failing to maintain reasonable procedures to ensure that those using its reports had permissible purposes for accessing

Seal of the United States Federal Trade Commis...

Seal of the United States Federal Trade Commission. (Photo credit: Wikipedia)

them; furnishing reports to users that it did not have reason to believe had permissible purposes to access them; failing to follow reasonable procedures to assure that its reports were as accurate as possible; and failing to provide FCRA-mandated “User Notices” outlining several important consumer protections.

InfoTrack and its owner, Steve Kaplan, violated the FCRA by failing to use reasonable procedures to assure maximum possible accuracy of consumer report information obtained from sex offender registry records; failing to provide FCRA-required notices; and failing to provide written notices to consumers of the fact that InfoTrack reported public record information to prospective employers, when that information was likely to adversely affect consumers’ ability to obtain employment.

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How much do you need to make an hour to rent a house in NC?

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While the politicians debate if Americans can survive on minimum wage, the landlords of NC know that a tenant probably needs to make $14 an hour to afford a modest apartment.

According to the Asheville Citizens Times, “The report found an estimated 49 percent of Asheville renters do not earn enough to afford a two-bedroom unit at the fair market rent.”

To read the story click here

Minwage

Minwage (Photo credit: Wikipedia)

 

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Written by Ann Lane

March 25th, 2014 at 5:41 pm

Background Checks-What Employers Need to Know

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The article below is from EEOC and the Federal Trade Commission

http://business.ftc.gov/documents/0487-background-checks-what-employers-need-know 

Background Checks: What Employers Need to Know

A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission

When making personnel decisions — including hiring, retention, promotion, and reassignment — employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.

However, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It’s also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.

Before You Get Background Information

EEOC

In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Except in rare circumstances, don’t try to get an applicant’s or employee’s genetic information, which includes family medical history. Even if you have that information, don’t use it to make an employment decision. (For more information about this law, see the EEOC’s publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don’t ask any medical questions before a conditional job offer has been made. If the person has already started the job, don’t ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.

FTC

If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:

  • Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
  • If you are asking a company to provide an “investigative report” – a report based on personal interviews concerning a person’s character, general reputation, personal characteristics, and lifestyle – you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
  • Get the applicant’s or employee’s written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
  • Certify to the company from which you are getting the report that you:
    • notified the applicant and got their permission to get a background report;
    • complied with all of the FCRA requirements; and
    • don’t discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

Using Background Information

EEOC

Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:

  • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job – despite the negative background information – unless doing so would cause significant financial or operational difficulty.

FTC

When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:

  • Before you take an adverse employment action, you must give the applicant or employee:
    • a notice that includes a copy of the consumer report you relied on to make your decision; and
    • a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.

By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.

  • After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
    • that he or she was rejected because of information in the report;
    • the name, address, and phone number of the company that sold the report;
    • that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and
    • that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

Disposing of Background Information

EEOC

Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.

FTC

Once you’ve satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports – and any information gathered from them – securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed. For more information, see Disposing of Consumer Report Information? Rule Tells How.

Further Information

EEOC

To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest. For specific information on:

Preemployment medical inquiries: see Preemployment Disability-Related Questions and Medical Examinations.

Medical inquiries during employment: see Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).

Genetic inquiries, including inquiries about family medical history: see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008.

EEOC recordkeeping requirements: see Summary of Selected Recordkeeping Obligations in 29 C.F.R. Part 1602.

Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.

Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance.

Background on the EEOC for small businesses: see Get the Facts Series: Small Business Information.

FTC

To find out more about federal laws relating to background reports, visit www.business.ftc.gov, or call the FTC toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. For specific information on employment background reports, see:

Using Consumer Reports: What Employers Need to Know

The Fair Credit Reporting Act & social media: What businesses should know

Background screening reports and the FCRA: Just saying you’re not a consumer reporting agency isn’t enough

Reentry Myth Buster: Criminal Histories and Employment Background Checks

The FTC works to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to businesses to help them comply with the law.

February 2014

 

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Updated release forms

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New Releases are required.  Please contact our office for new forms.

From Monserrat Miller

A class action lawsuit has been filed against Whole Foods Market alleging violations of the Fair Credit Reporting Act (FCRA) in the U.S. District Court Northern District of California (Gezahegne v. Whole Foods Market California, Inc.; 4:14-cv-00592).

The complaint alleges Whole Foods Market obtained consumer reports without a valid disclosure and authorization due to extraneous language in the notice.  The complaint alleges the following:

  • Plaintiff and other similarly situated individuals executed online authorization forms to obtain a consumer report as part of the employment application process from January 2009 to present.
  • The disclosure and authorization forms are invalid because Whole Foods Market included liability release language and therefore the forms did not “consist solely of the disclosure.”
  •  Not only are the forms invalid, but the actions by Whole Foods Market trigger statutory damages in the amount of up to $1,000/individual for whom a consumer report was procured based on the form.

The relevant language of the form reads, “I hereby authorize Whole Foods Market to thoroughly investigate my references, work record, education and other matters related to my suitability for employment and, further, authorize the references I have listed to disclose to the company any and all letters, reports, and other information related to my work records, without giving me prior notice of such disclosure.  In addition, I hereby release the company, my former employers and all other persons, corporations, partnerships and associations from any and all claims, demands or liabilities arising out of or in any way related to such investigation or disclosure (emphasis added).”

The complaint alleges violations of the FCRA requirement that prior to procuring a consumer report on an applicant for employment an employer provide a clear and conspicuous disclosure and obtain the applicant’s written authorization. Furthermore, that the disclosure consist solely of the disclosure. (FCRA section 604(b)(2)).

The courts will decide this particular matter and this matter is in the early stages as it was filed just this month.  As a general rule, employers should be cognizant of their disclosure and authorization form as releases of liability or disclaimers regarding the consumer reports can be problematic.  The FCRA places responsibility for the disclosure and authorization form on the employer.  In some instances, background screening companies may handle such for an employer, but the ultimate responsibility for the form lies with the user procuring the report or causing the report to be procured.

For complete article click here

Background Check Bozeman, MT

Background Check Bozeman, MT (Photo credit: grace mcdunnough)

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Charlotte, NC bans the box

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Charlotte, NC joins the numerous jurisdictions that ban the question, “Have your ever been arrested, convicted, charge with a crime

Charlotte City Manager Ron Carlee has removed the box on city job applications that asks candidates to disclose their criminal records.

The move puts Charlotte among a growing roster of cities, including Durham, Seattle and Minneapolis, that have eliminated the question on applications to make it easier for people with criminal histories to get hired.

Read more here: http://www.charlotteobserver.com/2014/02/28/4731175/charlotte-wont-ask-about-convictions.html#storylink=cpy

 

English: Taken in fall of Charlotte, NC

English: Taken in fall of Charlotte, NC (Photo credit: Wikipedia)

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Credit checks and pre-employment screening

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Senator Elizabeth Warren has introduced legislation that will ban credit reports for employment purposes. The bill is known as Equal Employment for All would prohibit employers from using credit reports to make employment hiring decisions. According to Senator Warren:

It was once thought a credit history would provide insight into a person’s character and today, many companies routinely require credit reports from job applicants, but research has shown that an individual’s credit rating has little to no correlation with his or her ability to succeed in the workplace.  A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual’s character or abilities.  Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs. This is about basic fairness — let people compete on the merits, not on whether they already have enough money to pay all their bills.

Credit Report - Before and After

Credit Report – Before and After (Photo credit: TrinityCreditServices)

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Written by Ann Lane

February 26th, 2014 at 3:26 pm

Criminal Background Checks in the Hiring Process: the Escalating Risks

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Hunton & Williams is offering a complimentary webinar on “Criminal Background Checks in the Hiring Process: the Escalating Risks

 

Employers’ use of criminal background checks in the hiring process is creating growing exposure to liability on several fronts.

Please join us for a complimentary webinar on this topic

Thursday, January 16, 2014

10:00 a.m. – 11:00 a.m. PT
(1:00 p.m. – 2:00 p.m. ET)

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Criminal Record Searches and the FCRA class action lawsuits

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cfpb

cfpb (Photo credit: afagen)

 

From the Hunton Employment and Labor Perspectives, a recap of 2013 FCRA Class Settlements.   We have seen a number of significant cases this year involving both employers and consumer reporting agencies.

 

Such as

 

Roe v. Intellicorp Records, Inc., Civ. No. 1:12CV2288-JG (N.D. Ohio): in this consolidated class action, plaintiffs accused two CRAs of providing inaccurate criminal background reports to employers that caused the class of applicants to suffer adverse actions, and of not notifying them at the time defendants provided the consumer reports to prospective employers.  The case settled on November 12, 2013, when defendants agreed to pay $18.6 million to settle the FCRA claims.

 

To read more, go to Hunton’s blog, http://www.huntonlaborblog.com/2014/01/articles/criminal-background-checks/criminal-background-checks-reviewing-the-year-in-fcra-class-action-settlements/index.html

 

 

 

 

 

 

 

 

 

 

 

 

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Finally! When websites make you Guilty forever, unless you pay!

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Here is the latest update on websites such as Slammer, MugShots, etc.  These websites publish your mug shot whether you are found guilty of not. Then when you ask them to remove it, they force you to pay for removal.  As one victim explained, even if you pay the EXTORTION to have your mug shot removed, it is just displayed on another.

From ABC News, Lawmakers and Credit Card Companies Take Aim at the Mug shot websites.

Mug shots of Lyle and Erik Menendez

 

 

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Written by Ann Lane

December 19th, 2013 at 4:45 pm

The devastating collateral consequences of a criminal record

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Many people find out that after a criminal conviction, employment is almost impossible. The article below details the pain!

 

Punished for life: Unexpected repercussions dog defendants who agree to cop even minor pleas

 

“There are a lot of people who have done one stupid thing and been caught for it when they are youth, and they have this economic death sentence around their neck.”

 

—Ed Monahan, public defender in Kentucky

The implications of a criminal record vary from state to state, with layers of penalties imposed at the federal and state levels. A criminal record can affect housing, employment and educational opportunities. People convicted of drug crimes or sex offenses can be barred from public housing or access to Section 8 housing vouchers. Private landlords can refuse to rent to people with a criminal record, and employers are under no obligation to hire them. In many states, people with felony convictions have limited access to licenses for everything from hunting to plumbing to selling theater tickets.

 

Prison cell with bed inside Alcatraz main buil...

Prison cell with bed inside Alcatraz main building san francisco california (Photo credit: Tim Pearce, Los Gatos)

 

Please read the complete article  “Punished for Life”

 

 

 

 

 

 

 

 

 

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