Another State Bans the Box for Private Employers. How Does a Company Remain Compliant?

On October 14th, California Governor Jerry Brown signed AB 1008 which prohibits most public and private employers with five or more employees from asking applicants about criminal convictions until after a conditional offer of employment has been made. The law goes into effect on January 1, 2018.

The bill requires employers that run background checks to assess each person’s circumstances individually and examine the nature of the crime, the relationship to the job, amount of time that has passed since the offense, and evidence of rehabilitation. The bill also requires that employers notify applicants about any criminal history in their consumer reports and give the applicant a chance to correct any errors, provide evidence of expungement or present mitigating information.

The Fair Chance bill removes job barriers for applicants in California with criminal histories and gives them a fighting chance at securing employment without their past being used against them.

How can employers remain Ban the Box compliant?

Ban the Box continues to be one of the more complicated issues in employment law as more and more states and municipalities enact laws restricting when an employer can consider criminal conviction history in the hiring process. So far, 29 states and over 150 cities and counties have enacted some type of Fair Chance or Ban the Box law. Some apply only to government sector employers and others include private sector employers. California is the 10th state to ban the box for private employers.

Employers face enough challenges including the compliance stew being created by the myriad ban the box laws. So how does a company ensure compliance? Here are a few suggestions:

  1. Adjust your hiring process so that background screening is conducted after a conditional offer is made to the applicant.
  2. Train recruiters and hiring managers to reinforce how to conduct a complete assessment of the individual candidate to make appropriate hiring decisions.
  3. Define a background relevancy matrix by position.
  4. Partner with a background screening company that has these rules built into their platform, the expertise to recognize these laws as they are passed and the flexibility to react quickly in implementing any new rules or forms for employers.

To learn how Cisive keeps your company in compliance and out of harm’s way, contact a Cisive Specialist at 1-866-557-5984 or click here.

 

Expunged Criminal Records: Is Your CRA Keeping Your Company Out of Harm’s Way?

Expunged criminal records are sealed arrest and conviction records. Many states have enacted laws that allow people to expunge arrests and convictions from their records. Once an arrest or conviction has been expunged, the applicant does not need to disclose it to a potential employer and the record should not show up in a criminal background check. It seems very straightforward, but it isn’t.

The problem for employers is that some Consumer Reporting Agencies (CRAs) have sloppy procedures and use database checks only in reporting criminal records to their clients. Information in these national supplemental databases is stale! Most are updated sporadically, if at all. There is simply no national database that can claim to be “complete and accurate.”

There are employers that feel they are at a disadvantage if they cannot access all criminal records on applicants especially since the incarceration rate in this country is so high. Do employers need to be concerned about not being able to access expunged records on candidates? The answer is no and here is why:

  1. Generally, only lesser offenses, such as petty theft, drug crimes and juvenile offenses, are eligible for expungement; and
  2. Most expungements have conditions and timeframes attached to them.

The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy in consumer reports which includes the reporting of expunged records. Therefore, using expunged records for hiring purposes can cost your company money either in a judgment or in the time it takes to resolve the issue. But the biggest cost to an employer may be the loss of qualified candidates!

So, how do conscientious employers stay out of harm’s way?  The clear path is to never allow a background provider to sell you a standalone “national” database search without verification of results by going to official government repositories.  Managing a background program is managing risk.

Knowing this, Cisive always conducts criminal record searches the right way by using a quintuple verification of criminal records which ensures records are reportable. Many CRAs merely check one county repository when a criminal check is requested by a client. This will never satisfy Cisive’s standards for accuracy. Felony records are maintained in a separate repository in more than 50 percent of the 3,007 counties in the United States. Cisive always conducts a multiple-repository search, including a third level when municipal courts are appropriate. An investigative audit confirms record accuracy, with a review for legal dissemination under state, federal, and international law.

In addition to a multiple-repository search, Cisive also accesses the original source at court repositories. Cisive reviews applicant-identifying information up to five times. Our attention to detail has yielded an impressive 99.9993 percent accuracy rate — adding to the confidence and assurance that you have screened the right candidate and minimizing your exposure to liability.

Although 40 states offer statewide criminal history record checks because their records have been deemed public by acts of legislatures, Cisive can only recommend 15 of them. Our clients rely on our researched experience of approved sources to avoid a deficient repository that may fail to detect a serious criminal history record. That’s another reason why many of our clients have been with us for over 30 years.

In our continuing effort to keep our clients out of harm’s way, Cisive created an informative white paper, Trends & Risks in Performing Criminal Background Checks, which outlines the pitfalls when using commercial databases as a standalone research tool to conduct criminal history inquiries of prospective employees, and provides a series of best practices for employers to consider to avoid potential civil liability when using criminal background checks.

The moral of this story is that it is imperative to partner with a background screening company that conducts criminal background checks the right way. Keep your company out of harm’s way! Contact a Cisive representative today at 1-866-557-5984 or click here.

 

 

Social Media Searches are so Important that the Government is Doing it and So Should You

 

The U.S. Department of Homeland Security (DHS) recently announced that, as of October 18, 2017, it will expand the background checks it conducts on immigrants to cover social media and internet search results. This policy includes green card holders and naturalized citizens, with the information collected becoming part of their immigration file. The impact to employers is that this policy may decrease the number of qualified candidates to fill open positions.

According to the Federal Register, the new administration rule will include the collection of “social media handles, aliases, associated identifiable information, and search results.”

Coincidentally, social media screening for employment purposes is at an all-time high. Information from social media sources can assist employers in making valuable decisions by providing a better picture of a candidate as a potential employee. However, while these new and evolving sources of information have positive elements, they have also created potential legal exposure for employers.

It is important to note that, unlike the new government policy, employers should not require applicants or employees to provide them with their username and password to access their social media accounts. According to the National Conference of State Legislatures, 25 states have enacted laws that apply to employers, and in 2016, the Uniform Law Commission adopted the Employee and Student Online Privacy and Protection Act.

The legal risk in conducting social media searches for employment purposes can be minimized by outsourcing social media research and reporting to a professional background screening firm. This creates a wall between the applicant and employer, and the screening firm can:

  • Help the employer integrate social media information into their applicant and employee screening program so that it’s consistent with their people risk strategy.
  • Redact protected class information that is irrelevant and potentially creates legal exposure for the employer.
  • Report only information the employer deems relevant.

Employers that conduct social media searches as part of their hiring process should:

  • Consult legal counsel regarding the use of each social media site.
  • Always comply with FCRA and EEOC regulations.
  • Make hiring decisions using only information relevant to the offer of employment.

The rules for social media background screening for employment purposes are evolving and future legislation and case law will help guide the conduct and use of this research. Using social media searches should be just one part of your overall background screening process, along with criminal screenings, verification checks, etc.

In our continuing effort to keep our clients out of harm’s way, Cisive has created an informative White Paper on social media searches best practices, Compliance Considerations in Social Media Employment Background Screening. Click here to download.

 

Starbucks Hit With Class Action for Background Check FCRA Violations

Plaintiff Kevin Wills of Georgia says he was denied employment at Starbucks because of erroneous information in his background check. These errors, he says, could have been corrected if Starbucks had given him the proper disclosures.

Kevin Wills applied for a job at Starbucks in Buford, GA. According to Wills, he had no criminal history, an “excellent” work history and, in fact, previously worked at Starbucks.  Wills claims that after a successful interview, he was notified by phone that he would not be hired based on information found in his background check report. However, the background check report that Starbucks received from its background screening provider was for Kevin W. Willis of Minnesota who had twice been convicted of domestic violence. Based on this information, Wills alleges, he was denied the job at Starbucks.

Wills also alleges that he did not receive a copy of the background check report until days after Starbucks already took adverse action against him. According to the Fair Credit Reporting Act (FCRA), this is a clear violation of Wills’ rights, by not giving him an opportunity to review the report and correct the error prior to making an employment decision.

In order to protect consumers, the FCRA requires a series of consumer notifications when the consumer reports (i.e., background check report) are used for any employment purpose, such as the initial hiring decision, promotion or retention. If the consumer report contains adverse information that may cause the employer to take an adverse action against the candidate, the FCRA requires that the employer must notify the candidate and provide:

  1. a copy of the report; and
  2. a description in writing of the rights of the consumer, as prescribed by the FTC under section 609(c)(3).1

Failure to do so is a clear violation of the FCRA. The FCRA makes it absolutely clear that the employer is ultimately responsible for compliance in this area. This function is often best outsourced to the Consumer Reporting Agency (CRA) performing the background, and is the practice that Cisive recommends to keep your company out of harm’s way.

Damages can be steep! An employer that negligently fails to comply with any requirements of the FCRA with respect to an applicant or employee is liable for actual damages sustained by the individual and reasonable attorney fees and costs.  An employer that willfully is in violation with any of the requirements of the FCRA can be liable to pay actual or statutory damages, punitive damages, attorney fees and costs.

In its continuing effort to ensure its clients’ hiring processes are compliant, Cisive has created an informative white paper entitled, A Class Action Lawsuit Bonanza. Failure to Notify: FCRA Required Pre-decision and Adverse Action. This white paper examines the issues of pre-decision and adverse notifications as required by the FCRA and provides a series of best practices for employers to avoid potential civil liability when using background checks to make employment decisions.

 

Wills v. Starbucks Corp., Case No. 1:17-cv-03654, in the U.S. District Court for the Northern District of Georgia.

Cisive is Exhibiting at the 20th Annual HR Technology Conference & Exposition

October 10-13, 2017

The Venetian, Las Vegas

Booth #3335

Are you following all EEOC and FCRA compliance requirements in your background screening process?

Don’t bet on it!

Stop by Booth #3335 to learn about how Cisive’s Technology Driven Solutions keep your company out of harm’s way.

While you’re there, enter to win a fitbit blazeTM!

 

Can’t attend the conference and want to learn more? Click here or call 1-866-557-5984 to speak with a Cisive Specialist!

Maryland Man’s Background Check Erroneously Links him to Florida Felon

Christopher Jenkins of Maryland applied for a job and the employer ran a background check on him. However, the criminal history report received was on Christopher Jenkins of Florida, who has the same name and birth date. Jenkins of Florida has a long list of offenses including possession of marijuana and grand theft auto.

Jenkins of Maryland was shocked to hear about the criminal history record associated to him since, according to him, he’s “never smoked pot and never been to Florida.”

This is a prevalent problem that happens more often than people know, according to an article by NBC4 Washington.

Luckily for Jenkins of Maryland, the FCRA requires that if a background screening report contains information that is potentially adverse to the candidate (i.e., information that may cause the employer to take an adverse action against the candidate), the employer must notify the candidate so that the individual may correct any inaccurate information.

Unfortunately for the employer, the background screening provider they used didn’t take the right steps to ensure that the Christopher Jenkins they investigated was in fact the correct Christopher Jenkins.

How do conscientious employers avoid being mired in this litigious environment? 

Failure to take steps to ensure compliance and mitigate risk will most certainly lead to expensive lawsuits and reputational damage to the employer. The FCRA makes it absolutely clear that the employer is ultimately responsible for compliance in this area, but the background screening function is often best outsourced to a reputable Consumer Reporting Agency (CRA), and is the practice that Cisive recommends.

There are common industry practices that can lead to litigation. An employer seeking a background screening provider should specifically guard against the following 5 Red Flag practices:

  1. Unrealistic turnaround time and pricing
  2. Over reliance on “national” criminal database
  3. Disclaimers
  4. Absence of regular consultative agreement
  5. Offshoring

The importance of accuracy in background screening cannot be overstated.

Many background screening companies take shortcuts, driven by a market that is now focused almost exclusively on cost. These shortcuts have resulted in a large and growing body of litigation alleging violations of law against both the employers and their background screening providers.

Cisive has an accuracy rate of 99.9993%. We accomplish this by verifying records up to five times to ensure the information we report actually belongs to the candidate. Cisive does not report possible hits, although many screening providers do. We pull case copies from the courts to ensure all identifiers are present and valid before we report the criminal record.

As seen in the Jenkins situation, identity mistakes are commonplace in the background screening process. In order to prevent litigation and create a positive candidate experience, employers should partner with a background screening provider that ensures compliance and focuses on mitigating risk. Selecting a background screening partner is not a simple task, and the stakes are high. The quality of background services varies widely and, as the Jenkins situation suggests, quality does matter.

Cisive has created an informative White Paper entitled, Important Considerations When Selecting a Background Screening Company, which explores how to evaluate a background screening partner and surveys litigation trends while offering guidance to avoid litigation traps.

Complimentary Webinar: Compliance Best Practices in Social Media Employment Screening

 

Join Cisive and Fama for a unique perspective on the use of social media screening to enrich your organization’s hiring standards and code of ethics.

Register Now

 

When: Thursday, September 28 @ 1:00 pm EDT

Learn how your organization can extend the scope of its “people risk” strategy to include the analysis of social media and online identity.

  • How to integrate social media into your screening process – including how to balance social medial alongside criminal background checks.
  • Strategies for aligning social media screening around existing risk management strategies – hate speech, violence and terrorism. Learn how companies have begun taking a stand and defining acceptable behavior.
  • Social media screening best practices to ensure FCRA and EEOC compliance.

Can’t attend? Register anyway and we’ll send you a recording to view at your convenience. We hope you can join us.

Top 4 Compliance Steps in Avoiding Liability Issues During the Hiring Process

Reasonable Reporting Procedures

How compliant is your background screening provider? The Federal Trade Commission (FTC) has found that certain practices may be indicators that a background screening company isn’t following reasonable procedures.

For example, if a report lists criminal convictions for people other than the applicant (a similar name with a different middle name or date of birth from the applicant) the company can face significant compliance concerns―so significant, that two of the largest CRAs recently paid out $10.5 million to harmed consumers, and $2.5 million in civil fines.

Ask your background screening vendor about their litigation record.

 Demand thorough matching criteria from your provider to save money and to ensure compliance.

 Provide Timely Notice

Prior to requesting a background report, the FCRA requires that applicants receive necessary disclosures in a stand-alone document and then provide authorization to proceed.

When the report contains public record information, and your CRA does not make sure that information is complete and up to date, (generally a poor practice and very risky shortcut), they are required to send a notice to the candidate with a copy of that public record.

Also, when background reports contain items which may have an adverse effect on a consumer’s ability to obtain employment, the FCRA requires that a pre-decisional letter along with a copy of the report and the summary of rights be sent to the consumer. This notification is required prior to adverse employment, retention or promotion action being taken. However, 43 claims of improper notice were filed against 4 of the largest CRAs in the past year alone.

Improper timing of adverse hiring decisions can create legal liability for your company!

Ensure Information is Accurate

The FCRA requires that a background screening company “shall follow reasonable procedures to assure maximum possible accuracy…” When purchasing pressures or competitive bidding drives the pricing too low, some background screening companies take shortcuts that put them, your candidates and your company at risk.

As a user of background reports, you have a responsibility to understand the quality measures taken by your provider, and you need to consider the litigation history of potential background providers to protect your candidates and your company.

Know your background provider!

Don’t let a few dollars price difference for individual backgrounds put your company at risk for settlements in the millions!

 Reinvestigate Disputed Information

Even if reasonable procedures are fully implemented, employers need to ensure a process is provided to register and investigate disputes in a timely manner.

Under the FCRA, applicants have the right to ask for and access their files, dispute the accuracy of information, and receive written notice of the investigation results. Properly handled disputes protect you by ensuring that your candidates are treated fairly, and that qualified candidates are not overlooked because of incomplete, incorrect or out of date information. You should ensure that candidates can easily register disputes online, by phone, or mail.

Your CRA should have a robust dispute process overseen by senior management to ensure thorough and timely reinvestigation that protects your candidates and your company.

Ask your CRA for dispute and accuracy statistics. Remember, FCRA compliance is the only option!

 

ALERT: Remove That Liability Waiver From Your FCRA Disclosure

Despite the fact that the Ninth Circuit Court found that it is a “willful” FCRA violation to include a liability waiver in the FCRA Disclosure, it is still a fairly common practice.

Employers who use third party vendors to conduct background checks on applicants and employees are required by the FCRA to provide a disclosure in writing stating that the background report may be used for employment purposes. It is very clear in the FCRA that the required disclosure form must be its own standalone document.

In recent years, the number of class actions against employers for FCRA violations has risen dramatically. The stakes are high for non-compliance. In early 2017, a background screening company agreed to pay $1.6 million to a class of over 65,000 job applicants for including a liability waiver in the FCRA disclosure for the background checks it conducted on applicants for its client M-1, LLC. In addition, the employer M-1, LLC was found responsible to pay statutory damages of between $100 and $1,000 per violation to the over 65,000 class members, plus punitive damages and attorneys’ fees and costs.

Companies such as Domino’s Pizza ($2.5M), Publix ($6.8M), Whole Foods ($803K), ClosetMaid Corporation ($1.8M), and Disneyland are just some of the companies that have been or are currently embroiled in class actions for including a liability waiver in their FCRA Disclosure form.

Recommendations for Employers

If you conduct background checks on your applicants and employees, it’s time to review your process and ensure that you remove any liability waivers, releases, and indemnity clauses as they are not permitted under the Ninth Circuit’s ruling. Also, as a best practice, remove any other information or terms in the documentation which could violate the FCRA requirement that it consist solely of the disclosure. This will help to ensure you avoid a costly and time-consuming class action.

If you are uncertain if your hiring process is FCRA compliant, the time is now to contact a Cisive Specialist at 1-866-557-5984 or click here.

 

Cisive and Encompass Compliance Corporation Announce Channel Partnership

HOLTSVILLE, NY – August 30, 2017 Cisive and Encompass Compliance Corp. (OTC PINK: ENCC) recently announced a channel sales agreement. Cisive will offer the Encompass Risk Shield Compliance service as part of its compliant Drug Screening Solution to its clients who conduct drug testing as part of their background screening process.

Cisive, focused on providing the most accurate and legally-compliant employment background screening, drug testing, onboarding, and electronic Form I-9/E-Verify solutions to enterprise-level organizations, will now offer the Encompass Risk Shield Compliance service to its clients. “Remaining compliant with the myriad mandatory state laws, marijuana laws, and ADA and OSHA regulations can be a daunting task.  The ability  to offer our clients a comprehensive resource on all aspects of drug & alcohol testing compliance fits into Cisive’s ongoing quest to keep its clients out of harm’s way,” stated Jim Owens, Cisive’s CEO and President.

“Cisive has a long track record of providing the best industry risk solutions to their customers. Our organizations align perfectly with the desire to introduce services that will mitigate risk, assist with maintaining up to date regulatory rules and reduce the costs of non-compliance associated with managing drug and Alcohol programs. We are extremely fortunate to have them as a partner providing our Risk Shield Service to their many customers,” says Richard Sharp CEO of Encompass Compliance Corp.

About Cisive

Cisive is a leading provider of tech-enabled and compliance-driven human capital management and risk management solutions. The company’s core onboarding and pre-employment background screening offering provides clients with a high quality, regulatory compliant, and tech-enabled solution. Cisive currently serves clients across the financial services, transportation, and media and telecom end-markets, among others, and offers transportation clients a comprehensive, industry-focused solution through its Driver iQ branded offering. Cisive is headquartered in Holtsville, NY and has office locations in Spring Lake, NC, Tulsa, OK, Tustin, CA, and London, UK.

About Encompass Compliance Corp.

Encompass Compliance Corp. is the most comprehensive provider of workplace drug and alcohol testing compliance services, with over 30 years of experience servicing small, medium and Fortune 500 customers. We are dedicated to providing employers with the tools necessary to mitigate regulatory and compliance risk by complying with Workers Compensation laws, OSHA, ADA, Marijuana both personal and medical use, and much more. The Risk Shield Solution provides organizations with up to date policies and procedures alerting users when changes occur, in any state, a comprehensive resource center and real-time monitoring for drug & alcohol testing orders to assist users with the ability to confirm if a testing scenario is compliant with state regulations.

For further information on how to ensure compliance, visit www.cisive.com or call 866-557-5984 to speak with a Cisive representative.