1. Background Screening and Substance Abuse Testing Steve Ziemkowski Travis Day www.parkinsecurity.com
2. Parkin Security Consultants has been in the pre-employment background screening business since 1981. We serve clients large and small, locally, nationally and internationally. Our goal is to gather complete and accurate data and get it to you securely, quickly, and in an easy-to-understand format so you have the confidence in the data provided to make informed hiring decisions. We have no salespeople, we do no advertizing. We've built our business on referrals by clients who have been impressed with our customer service and by satisfied users who take us with them as they move into new companies. Members of: NAPBS –National Association of Professional Background Screeners CONCERNED CRAs –Committed to data security through restricting the offshoring of Personal and Identifiable Information (PII) and Responsible Criminal Databases SHRM –Society of Human Resource Management NCHRA –North California Human Resources Association ASIS-Largest organization for security professionals CALI – California Association of Licensed Professionals PICA – Professional Investigators of California DATIA – Drug & Alcohol Testing Industry Association E-VERIFY -Designated agent Parkin Security Consultants
3. Background screening is a tool to protect you, your employees and your customers from hiring people who can do you and your business harm. Background screening is a way for you to check the criminal records, civil court records, driving and credit history and other qualifications, and to verify the information provided by your job applicants to see if they have the qualifications, skills and behaviors so you can make an informed decision as to whether they would be a good fit into both the job for which they are applying and into your existing work force. There are rules as to who you can check, what you need to do before you run a check, what you can and can’t check, and what you can and can’t do with the information found, and what steps you need to take if you find something negative in a person’s background. What is background screening
4. Background reports are consumer reports and investigative consumer reports prepared by a consumer reporting agency (CRA) (which includes background check vendors, private investigators, and detective agencies) for the purpose of providing information to a third party, often an employer. Consumer reports may consist of criminal checks, credit history checks and DMV records. Investigative consumer reports contain information regarding an applicant or employee's character, general reputation, personal characteristics or mode of living, obtained through personal interviews with friends, neighbors and/or business associates, as well as through employment verification with prior employers. What is a background screening report
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6. Certain employers are required by law to conduct background checks, and may be barred from hiring persons with certain criminal convictions. An employer can be held responsible for unlawful or improper acts of an employee when it fails to conduct a pre-employment background check and the employee has a prior criminal record. For example in Sonoma County, CA, 28 year old Christina Appleton was stabbed to death by co-worker, Arvie Carroll, a convicted murderer placed with Iron Horse Vineyards by a temporary agency that did not conduct a background check. The case went to trial and the jury awarded the family $5.5 million. According to industry experts, California employers lose negligent hiring suits 60 percent of the time, and the average verdict award in such cases is $870,000. More reasons to background screen
7. Demonstrate Due Diligence in the hiring process, promoting safety in the workplace Eliminate uncertainty in the hiring process by basing decisions on hard information Discourage applicants with something to hide or a reason to falsify credentials Encourage open communication and honesty on the part of the Applicant Excellent return on a small investment Benefits of background screening
8. A professional background screening company will know what to search, where to search and how to search the necessary records to ensure the background screen is done with due diligence. Background screening by a professional background screening company can provide you with added protections in case the candidate alleges violations of privacy. Background screening done by third parties must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws. Background screening done in-house do not have the requirements and protections of the FCRA but instead are governed by various federal and state privacy laws that can change often, and you will have to know the current law and will have to keep abreast of changes. In some cases it will require you to know and apply the laws of states other than the one in which you are based. Advantages of third party screening
9. Criminal searches: Number of counties in the U.S. 3143 total (3007 counties & 136 county-equivalents) Education Verifications: The U.S. has at least 5,758 higher education institutions, though the U.S. Department of Education shows only 4,861 Employment Verifications Outsourced records, closed or acquired businesses, temp workers claiming wrong employers Driving Records The cost and paperwork required to allow you to access driving records in all 50 states may be prohibitive for you Social Security/Address traces A background screening company will have access to, and understand how to use, social security trace resources not available to you Federal, State and Local laws: Laws concerning background screening are constantly changing and federal and state laws often conflict. Advantages of third party screening
10. Federal Laws Fair Credit Reporting Act (FCRA) Fair and Accurate Credit Transaction Act of 2003(FACT Act) Consumer Financial Protection Bureau (CFPB) Dodd-Frank Wall Street Reform and Consumer Protection Act Drivers Privacy Protection Act (DPPA) Drug Free Workplace Act of 1988 Substance Abuse and Mental Health Services Administration (SAMHSA) California Laws California Consumer Credit Reporting Agencies Act (CCRAA) Investigative Consumer Reporting Agencies Act (ICRAA) California Labor Code Section 432.7(a); section 432.8 Local Laws and trends in other states Ban the Box Credit Reports San Francisco New York Laws Governing Background Screening
11. The Fair Credit Reporting Act (FCRA) falls under the Federal Trade Commission, although the new Consumer Finance Protection Bureau (CFPB) will be getting some oversight of it as well, and it governs the acquisition and use of background information regarding employees and prospective employees and regulates how you obtain and use background history information. The FCRA applies to consumer reports and investigative consumer reports prepared by consumer reporting agencies, which includes background check vendors, for the purpose of providing information to a third party, typically an employer. Failure to comply with the FCRA provisions can subject employers to damages, including actual damages, punitive damages, costs and attorneys' fees. Employers may also be liable for fines and/or imprisonment if they knowingly and willfully obtain a consumer report under false pretenses. Fair Credit Reporting Act
12. If you use a consumer reporting agency to procure background history information, then you will be required to adhere to the FCRA's steps for compliance including certification, disclosure and authorization, and adverse action notification. Background screening can only be conducted for specific, legally authorized and permissible purposes. The employer must give the applicant written notice that the background is being conducted The employer must obtain the employee's signed consent for the background check prior to beginning the requested searches and verifications. The consent must expressly authorize the particular screening being run and must be in a document separate from an employment application or an employee handbook. Employer needs to certify to the consumer reporting agency that they have a permissible purpose and have made the appropriate notification and will comply with all FCRA requirements. Employer then provides the signed release form and required candidate information to background screening agency. The consent form and information may be provided directly by the candidate to the screening agency to protect the employer from having information that it would be better for them not to have. The candidate may also provide that information electronically if the screening firm has that capability. FCRA – the required steps
13. Screening agency conducts the investigation according to federal, state, local laws and provides the final report to the employer. The employer shares results with subject, if required by law. The copy of the report if requested can be provided to the candidate by the screening agency on the behalf of the employer If the employer contemplates taking adverse action, including not extending a job offer or withdrawing an offer made, based on information found in the background check then they must take the actions required by federal and state laws. If the decision not to hire is based on something other than negative information found in the background check, then the mandated adverse action steps are not required. Further steps in the process
14. You must provide the person with a pre-adverse notification that you are considering taking action based on information found in the report. The pre-adverse action notice needs to include the name, address and phone number of the screening agency that prepared the report. You must include a copy of the report You must include copies of their rights under the FCRA and under any applicable state law You must tell them that if there is anything in the report they dispute, they are to contact the screening agency directly to challenge the information You must give them reasonable time to dispute the report If they dispute the report, the screening agency is required to reinvestigate and amend the report if the dispute is valid or if the dispute is found to be unfounded or frivolous the screening agency must notify the candidate. If they don’t dispute the report, or if the dispute is deemed unfounded or frivolous, and you elect to not extend an offer of employment then you must send an adverse action notice. Steps to take for adverse action
15. Education Employment Professional licenses References Sex Offender Government watch lists, debarment etc. Social networking & Internet searches Drug Screening Physicals and other medical screens Standard Searches Social Security & Identity Criminal County Statewide National Federal Bankruptcy International Civil Courts Bankruptcy Driving Records Credit Checks References
16. Randomization Went into effect June 25, 2011 changing how Social Security Numbers are issued. It will have some effect on background checks, but will not affect the social security trace. Social Security Trace It does not verify that a particular social security number belongs to a particular individual It is a standard and critical part of an effective, due-diligence background. It is a research tool from independent, third-party sources, primarily credit header files of the three major credit bureaus. It provides your candidate’s name and address history to help identify the names and counties that need to be checked for criminal records. Problems with this data include the fact that names can be misspelled, SSN and address can be entered incorrectly from misreading handwriting or other data entry errors. Also if the person has ever jointly applied for credit or co-signed for another’s credit application, other names may show up on the social security trace. If the person is young, new to the country or has had limited or no credit, there may be no names or addresses showing up. Social Security
17. There are three ways to verify Social Security Numbers through government channels CBSV – Consent Based Social Security Verification Social Security will verify a particular social security number is assigned to a specific name. It does not verify the right to work in the United States. This method can be used for any business purpose, not just for employment. It can be run pre-offer of employment. It can also be run later, at any time. It does not need to be run on everyone. You can run it only when there is a reason to do so, as long as a consistent standard is applied. It requires the person sign a Social Security Administration form (SSA-89) SSNVS – Social Security Number Verification Service Comes from the Social Security Administration and can only be used to verify current or former employees and only for wage reporting (W-2) purposes. Social Security
18. E-Verify Joint Department of Homeland Security (DHS) and Social Security Administration (SSA) program. It verifies that the employee has a right to work in the United States. It must be run within three days of the person beginning work and can’t be done prior to the person starting work. With one exception you can’t go back and verify existing employees. Once you enroll in the E-Verify program you have to do perform it on every new hire until you decide to quit the program. To perform a search all you need to do is send us a copy of the employee’s I-9. This program provides you with protection from any government action for initially employing someone with false documentation and for keeping them employed during the investigation process. It also protects you from the employee suing you for unlawful termination if DHS and SSA can’t confirm their right to work in the United States. Social Security
19. Crimes are either state crimes, in which case the are heard at the Superior Court of the county in which the crime happened, or they are federal crimes, in which case they are heard in the Federal District Court in the state in which the crime occurred. Federal Courts only hear federal crimes. These are crimes such as bank robbery and bank fraud, mail fraud and theft from mail, kidnapping, interstate drug trafficking, stock market fraud. Any crime that happens on Government property, for example a DUI in a national park, would be heard in Federal court County courts hear state crimes. These are a majority of the crimes people commit: murder, assault, rape, child molestation, DUI, possession of controlled substances, grand theft, robbery, domestic violence and the like. Statewide Databases National Databases County Level Courthouse Searches Felony and misdemeanors Federal Courts International Criminal checks Criminal Checks
20. What is the difference between a criminal case and a civil case Civil cases are generally brought by private individuals or corporations seeking to collect money owed or monetary damages. A criminal case is brought by the local, state or federal government in response to a suspected violation of law and seeks a fine, a jail sentence or both. As in criminal cases courts can be at the County level or Federal level Some states have two levels of courts that handle different money amounts There are also special division to handle Family Probate Mental health Juvenile Small claims Traffic Bankruptcy Courts are separate Federal courts, distinct from the Federal Civil courts Civil records
21. We search the Department of Motor Vehicle records of the issuing state to determine your candidate's current driver's license status, and note the date and description of violations on the applicant's record and any outstanding failures to appear. Records are reported back as far as the jurisdiction permits up to seven years Driving Records
22. Employment verification requirements should be configured for your particular needs. A typical employment search verifies the dates of employment and job titles for the three most recent past employers listed on a candidate’s resume or job application. Other options can be all employment for a set period of time, or a requirement of a certain number of jobs not to exceed a set period of time. If required, salary will be verified where possible. Per our policy, to protect the candidate and to minimize any problems for you we do not contact any current employer unless we have specific permission from the candidate. If an employer is no longer in business or if the candidate does not want an employer contacted, W-2 forms or pay stubs can always be requested from the candidate. The preferred verification is to contact the HR or payroll department of a company to get the verification, although a number of companies have outsourced their records so they can be accessed online upon payment of a fee Employment
23. For education verification we verify the highest degree awarded in the United States or Canada. If there is no degree claimed and your applicant is currently enrolled and working towards a higher degree, the current enrollment dates and degree program will be verified where possible. If no degree has been earned or claimed, we will verify attendance dates at the last school attended. We will also note if a school is identified as a diploma mill. Education
24. Sex Offender Registry Check US Department of Treasury Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons (SDN) list General Services Administration (GSA) Excluded Parties List System (EPLS) U. S. Department of Health & Human Services, Office of Inspector General (HHS/OIG), List of Excluded Individuals Other Global Watch Lists References Professional Licenses Fingerprinting There are numerous other searches you may require, all you have to let us know is what search is required and we can let you know if it’s available. Other searches
25. Facebook Google+ Twitter YouTube LinkedIn Tumblr Blogs Dating sites Other internet searches News and Media watch Social Network & Internet searches
26. Credit report shows the credit history of your candidate and may include judgments, liens, bankruptcies, credit card payment history, employment and address histories. Prior to being able to receive a credit report an employer will be required to undergo a site inspection by an independent third party to ensure they have they are a business authorized to receive them and that they have the proper security in place. Currently six states have placed restrictions on the use of credit reports for employment purposes: Hawaii Illinois Maryland Connecticut Oregon Washington California, Georgia, Indiana, Kentucky, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Texas and Vermont all have pending legislation. Credit Reports
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28. Establishing a background screening program tailored to your needs will keep you out of trouble, keep your staff and customers safer, will save you money in the long run and will help you meet your mission. Having an informed partner to work with will keep you up to date with the constantly changing laws and with your current and evolving business needs. We will send a copy of this PowerPoint presentation to everyone who attended and are always available for your questions Please feel free to contact us at: Steve Ziemkowski Travis Day Director Operations Manager Parkin Security Consultants Parkin Security Consultants 408-827-3565 408-827-3581 steve2@parkin-sec.com travis@parkin-sec.com Thank you and in closing
29. If you have any questions or concerns, or would like to discuss anything you’ve heard, please ask now or if you think of anything later, or would rather ask it privately, call or email us. Steve Ziemkowski Travis Day Director Operations Manager Parkin Security Consultants Parkin Security Consultants 408-827-3565 408-827-3581 steve2@parkin-sec.com travis@parkin-sec.com Questions
Notes de l'éditeur
STEVE: Will thank Jamie and introduce ourselves
STEVE:We’ve been around 30 years, companies big and small, independent contractors, start ups, long established high tech, including one customer that has been there since day 1.We are members of numerous Background screening, HR, Security and Drug Industry trade groups and are E-Verify Designated Agents
TRAVISA background check is a formal tool to ensure that due diligence is met during the hiring process by a responsible employer Background screening is a tool to protect you, your employees and your customers from hiring people who can do you and your business harm.Background screening is a way for you to check the criminal records, civil court records, driving and credit history and other qualifications, and to verify the information provided by your job applicants to see if they have the qualifications, skills and behaviors so you can make an informed decision as to whether they would be a good fit into both the job for which they are applying and into your existing work force.We will talk about the various searches in a moment, however There are rules as to who you can check, what you need to do before you run a check, what you can and can’t check, and what you can and can’t do with the information found, and what steps you need to take if you find something negative.
TRAVIS:Technically, this is what a background screening report is. It’s know by several names, consumer report, investigative consumer report, pre-employment background check. No matter what it’s called they are all the same thing, and governed by the same laws.You the employer, who seeks the report, is the customer, client, prospective employer, the third partyThe subject of the report, your job applicant or candidate, is the consumerWe, the background screening agency are, under the law, Consumer Reporting Agencies
TRAVIS:The bottom line is it saves you money and protects your business. It gives you a defense to use in case of lawsuits, ensures you hire people who can help you meet your mission and will work together well with your existing workforce and customersReduce costs associated with bad hiring decisions.“The U.S. Department of Commerce estimates that 30 percent of all business failures are the result of bad hiring decisions. While a typical background check costs far less than an average day's pay, one serious hiring mistake can sink a small business."http://www.inhouseblog.com/2005/08/pinching_pennie.htmlSurveys show:80% of all resumes are misleading20% state fraudulent degrees30% show altered employment dates40% have inflated salary claims30% have inaccurate job descriptions27% give falsified references10% have criminal recordsIndustries that appear to encounter fraudulent resumes most often were hospitality (60 percent), transportation/utilities (59 percent) and information technology (57 percent). SHRM STATS Jan 2011:http://blog.nwjobs.com/hireground/2011/04/criminal-background-checks-by.htmlChecks are most commonly conducted for job candidates with fiduciary and financial responsibility (78 percent of organizations), candidates who will have access to highly confidential employee information (68 percent) and senior executive positions (55 percent).Criminal background checks are used on all job candidates by 73 percent of organizations. So why is this all so important?One reason is to avoid violence and disruption in the workplace. While the existence of a criminal record is not always a reason to reject a candidate, there are cases where it can be. For example, a convicted child molester has no business working in a day care center. Extreme cases aside, there are important fundamental reasons for conducting background checks on potential employees. With today’s emphasis on managing more work with fewer people, the impact of a bad hire is greater than ever before. How do you really know that the candidate has the education, experience and certifications that he or she claims, if you don’t verify the claims? It’s not just the lower level applicants fudging their records: In 2007, Massachusetts Institute of Technology admissions dean Marilee Jones resigned after it came to light that she had claimed science credentials and a doctoral degree she did not have.In 2001, Notre Dame football coach George O’Leary resigned after admitting he lied about his academic and athletic background. Claims of earning a master’s degree from New York University and three varsity football letters at the University of New Hampshire were falseHowever, some job candidates go beyond fudging academic credentials, such as “Dinner: Impossible” chef star Robert Irvine, whose claims on his resume included cooking for Britain’s royal family, USA Today reported March 10, 2008. Irvine ended up losing his contract with the Food Network for a time.
TRAVIS:Certain employers are required by law to conduct background checks, and may be barred from hiring persons with certain criminal convictions.- California law requires background checks of unlicensed individuals who will be providing non-medical or domestic/personal care to an aged or disabled adult in the adult's own home. Cal. Welf. & Inst. Code §15660.-California requires background checks for security personnel and private investigators Cal. Penal Code §11105.4.Federal law also mandates background checks for employees engaged in particular industries. The Office of Inspector General of the Department of Health and Human Services maintains a list of individuals who are excluded from participation in any of its federally-funded healthcare programs, due to convictions for program-related fraud and patient abuse, licensing board actions and default on health education assistance loans. An employer can be held responsible for unlawful or improper acts of an employee when it fails to conduct a pre-employment background check and the employee has a prior criminal record. For example, 28 year old Christina Appleton was stabbed to death by co-worker, Arvie Carroll, a convicted murderer placed with Iron Horse Vineyards by a temporary agency that did not conduct a background check. The case went to trial and the jury awarded the family $5.5 million. According to industry experts, California employers lose negligent hiring suits 60 percent of the time, and the average verdict award in such cases is $870,000.“You can add one or two other quick horror stories
TRAVIS:Not sure what you can add to this slide…it may stand on it’s own
TRAVIS:A professional background screening company will know what to search, where to search and how to search the necessary records to ensure the background screen is done with due diligence.A third party will know what to search, where to search and how to search the necessary records to ensure the background screen is done with due diligence WE WILL TALK ABOUT THIS ON THE NEXT SLIDEBackground screening by a professional background screening company can provide you with added protections in case the candidate alleges violations of privacyIt gives you added protections in case the candidate alleges violations of privacy:-Background screening done by third parties must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws.WE WILL TALK ABOUT THE FCRA SHORTLY, BUT IT IS THE FEDERAL LAW THAT GOVERNS BACKGROUND SCREENING DONE BY THIRD PARTIES. -Background screening done in-house do not have the requirements and protections of the FCRA but instead are governed by various federal and state privacy laws that can change often, and you will have to know which laws apply and know the current laws and will have to keep abreast of changes. -In some cases it will require you to know and apply the laws of states other than the one in which you are based. FOR EXAMPLE, AND WE WILL TALK ABOUT IT IN DEPTH LATER, IF YOU ARE IN CALIFORNIA AND YOU HAVE A CANDIDATE WHO IS LIVING IN NEW YORK WHEN HE OR SHE APPLYS TO WORK FOR YOU, YOU ARE REQUIRED TO APPLY SOME VERY SPECIFIC AND DETAILED REQUIREMENTS TO THE INFORMATION FOUND AND PROVIDE THE CANDIDATE WITH NOTICE OF, AND COPIES OF APPLICABLE NEW YORK STATUTES AND YOU WILL HAVE TO JUSTIFY IN WRITING THE USE OF ANY NEGATIVE INFORMATION FOUND.
TRAVIS:We will discuss all these searches individually later, but briefly, trying to do these searches yourself may be very difficult to do, may be very costly if you are not doing them in volume and you may not know what, where or how to search these items.Searching criminal records: In the U.S.the sheer number of courts to search make it impossible for the untrained person to find and check all the correct courthouses. Steve will talk about counties and county-equivalents when we discuss the criminal searchesEducation verifications: The US has the second largest number of higher education institutions in the world, with a total of 5,758, an average of more than 115 per state. The U.S. Department of Education shows 4,861 colleges and universities with 18,248,128 students in 2007. http://en.wikipedia.org/wiki/Higher_education_in_the_United_States The difference in numbers includes diploma mills and unaccredited schools. Several unaccredited universities have names that are similar to those of accredited institutions: Columbia State University, Oxford Global University, College of PrincetonMany schools outsource their records, so it may be difficult for you to find out how to verify the degree. Also the candidate may have gone to school under a maiden name, or doesn’t say when because they don’t want age to be an issue if they graduated years ago.Employment verifications: Problems verifying employment include employers who have outsourced their records, businesses that have closed or been acquired, candidates saying they work at a larger employer when they are temps working through agencies.Driving records: We will discuss this later too, but far too many state laws and requirements to do it on your own, and in some cases they aren’t available unless you set up accounts with each state, a lengthy and expensive process.Social Security/address traces: We will discuss this later.
STEVE:There are a number of laws, both at the federal and state levels, occasionally with conflicting requirements, that change often that you need to be familiar with. One advantage of outsourcing your screening to a professional background screening agency is they will know and keep up to date on the changing laws nationwide. Your background screener should keep you up to date and help you stay out trouble since you will find yourself having to comply with laws outside of California. We will discuss the applicable laws when we get to the various searches, but these are the main ones you need to know about.Federal LawsFair Credit Reporting Act (FCRA) Foremost of them is the Fair Credit Reporting Act (FCRA) and we will go into detail on it on the next slide.The name may be a bit misleading, and a key point to remember is that even if the background report does not include a credit check, it is still governed by the FCRA. This law is the responsibility of the Federal Trade Commission (FTC).Fair and Accurate Credit Transaction Act of 2003(FACT Act) Amendment to the FCRA in 2003: Fair and Accurate Credit Transactions Act of 2003 (FACT Act or FACTA, Pub.L. 108-159) is a United States federal law, passed by the United States Congress on November 22, 2003,[1] and signed by President George W. Bush on December 4, 2003,[2] as an amendment to the Fair Credit Reporting Act. The act allows consumers to request and obtain a free credit report once every twelve months from each of the three nationwide consumer credit reporting companies (Equifax, Experian and TransUnion). In cooperation with the Federal Trade Commission, the three major credit reporting agencies set up the website, annualcreditreport.com, to provide free access to annual credit reports.[3]The act also contains provisions to help reduce identity theft, such as the ability for individuals to place alerts on their credit histories if identity theft is suspected, or if deploying overseas in the military, thereby making fraudulent applications for credit more difficult. Further, it requires secure disposal of consumer information.Consumer Financial Protection Bureau (CFPB) A provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act, created the new Consumer Financial Protection Bureau (CFPB). It launched last Thursday, July 21, 2011. At this point both the FTC and the CFBP will have some oversight of the FCRA, and the full impact has not been decided.Dodd-Frank Wall Street Reform and Consumer Protection ActGramm-Leach-BlileyDrivers Privacy Protection Act (DPPA)The Drivers Privacy Protection Act requires all States to protect the privacy of personal information contained in an individual's motor vehicle record. This information includes the driver's name, address, phone number, Social Security Number, driver identification number, photograph, height, weight, gender, age, certain medical or disability information, and in some states, fingerprints. It does not include information concerning a driver's traffic violations, license status or accidents.The Act has a number of exceptions. A driver's personal information may be obtained from the department of motor vehicles for any federal, state or local agency use in carrying out its functions; for any state, federal or local proceeding if the proceeding involves a motor vehicle; for automobile and driver safety purposes, such as conducting recall of motor vehicles; and for use in market research activities. Ironically, personal data is still available to licensed private investigators.The Act imposes criminal fines for non-compliance and grants individuals a private right of action including actual and punitive damages, as well as attorneys fees.The DPPA limits the use of a driver's motor vehicle record to certain purposes. These purposes are defined in 18 U.S.C. § 2721:"Legitimate" business needs in transactions initiated by the individual to verify accuracy of personal information.If an individual has not given consent to the release of a motor vehicle record, the DPPA limits sharing of information once it is obtained. Information may only be shared with other approved users only for permitted uses. In addition, records must be kept of each additional disclosure identifying each person or entity that is receiving the disclosure and for what purpose. The disclosure records must be kept for a period of 5 yearsDrug Free Workplace Act of 1988Substance Abuse and Mental Health Services Administration (SAMHSA We will discuss the laws on driving record and drug screening programs this later in those sectionsCalifornia Consumer Credit Reporting Agencies Act (CCRAA)Investigative Consumer Reporting Agencies Act (ICRAA) These two California Statutes are California’s version of the FCRA, and have more restrictive limits and requirements on you than the Federal law does. For example, they limit the criminal records you can see to the last to seven years . Anything prior to that can’t be reported to you and you can’t take that into consideration when making employment decisions. This is another reason outsourcing your background screening to a third party is beneficial, because the records are public records and if you go to the courthouse and see something older than 7 years, the burden will be on you to prove that that had no impact on your decision not to hire someone. California Labor Code Section 432.7(a) California similarly prohibits employers from even asking prospective employees to disclose information concerning an arrest or detention that did not result in conviction, with limited exceptions.Local Laws and trends in other states –San FranciscoOn Monday, July 25th, the city of San Francisco held a forum seeking public comments on an initiative that would greatly limit the use of criminal records in hiring and renting decisions by designating convicts a protected class.New York As of Feb 2, 2009, a change in New York law added a background screening notice requirements for employers, even those located outside of New York State, if an employee is hired to do work in New York. If you have a candidate that will be working in New York, or an applicant for a job locally who is applying from New York, these requirements will apply to you. NY Correction Law Article 23-ABan the BoxThe laws in Massachusetts, Connecticut and New Mexico prohibit public employers from asking about the criminal history of jobseekers on initial applications. Massachusetts has gone a step further and slapped the ban on private employers as well. Legislation is pending in NebraskaCities have enacted it too…Chicago, Atlanta, Boston, and now Philadelphia effective July 12, 2011 The new ordinance specifically prohibits both public and private employers with 10 or more employees within the City of Philadelphia from requiring applicants to disclose their criminal history until after the employer accepts the employment application and conducts the first telephone or in-person employment interview. In other words, the new law “bans the box” on employment applications used to identify whether an applicant has any criminal convictions, under the ordinance, use of the “box” would be an “unlawful discriminatory practice.” Further, an employer that does not conduct an initial telephone or in-person employment interview is barred from making any inquiries or gathering any information about the applicant’s criminal convictions.Credit Reports – We will discuss these later, but while you are California employers, if your applicants live in one of six states, and more to come, you will probably not be able to see credit reports as easily as you do for your California applicantsAdditionally, California law (Labor Code 432.8) also limits the reporting ofconvictions for sections 11357 (b) or (c) of the Health & Safety code, and11360(b), 11364, 11365, & 11550 H&S, as they relate to the possession, use,influence, paraphernalia, or presence during use of Marijuana, to two (2) yearsfrom the date of conviction.In plain English Labor Code 432.8 is translated to: 11357(b) – Possession ofless than 28.5 grams (1 oz.) of Marijuana, 11357(c) – Possession of less than 1oz. of Marijuana, 11360(c) [it now is probably 11360(b) as the latest print doesnot have a (c) subsection] – Transportation/Sale of less than 28.5 grams (1 oz.)of Marijuana, 11364 – Possession of Marijuana Pipe, 11356 – Being present in aplace where Marijuana is being smoked, and 11550 – Under the influence ofMarijuanaheCalifornia Investigative Consumer Reporting Agencies Act (ICRAA) has anumber clauses which are stricter than the FCRA and must be followed.One clause is in regard to criminal records. The ICRAA, section 1786.18 (as wellas Labor Code Section 432.7), only allows the reporting of criminalCONVICTIONS, and limits the conviction information to seven years from thedate of disposition, release or parole. This is regardless of the subjectsanticipated salary (The general 7 year limitations under the FCRA do not apply toemployee’s whose salary is $75,000.00 or more.)Additionally, under Civil Code Section 1786.2 (c), the definition of an“investigative consumer report” (as opposed to just a consumer report) isexpanded to include information obtained … through “any means.” This meansthat a public records check which would be a “consumer report” under the FCRAis considered an “investigative consumer report” under the ICRAA and caries therequirements attached to ICR’s.Civil Code Section 1786.16 requires that applicants be notified in writing “of thenature and scope of the investigation requested,” and be provided “a summary ofthe provisions of (their rights) section 1786.22
STEVE:This is the 40 year old law that governs background screening, and details your legal obligations and requirements and what you can ask for and can’t and what you can do with the information provided, our duties and what we can and can’t do as well as the rights of the applicant.
TRAVISThe basic tenets of the FCRA are:First, screening can only be conducted for permissible purposes of doing due diligence on potential employees. An applicant must be given notice by the employer that the background is being runThe applicant must expressly authorize the screen by signing an FCRA compliant release form. The screening agency typically provides this form to the Employer and requires that it be returned with the applicant’s data, prior to beginning the requested searches and verifications. If Adverse Action taken, specific steps need to be takenApplicant must be given a chance to dispute the reportIf the applicant disputes the findings of a screen, the screening agency must investigate the claim and re-verify the information. Many states, such as California and Minnesota, have laws that augment the FCRA. These typically have to do with providing the applicant with the contents of the report and a means by which to handle disputes.
TRAVISNot much to add to this slide, I think it stands on it’s own, but add something if you think of it
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TRAVIS:This is an overview of the most commonly requested searches on a background check. We will go over them in some detail. However there are other searches available, and some are industry specific. If you need a particular search not discussed, feel free to ask us about them.
STEVESocial SecurityDue diligence will require you to run a social security trace both to insure the number provided is valid and to develop a list of counties you need to check for criminal records.RandomizationChanged the way SSN have been issued for the last 75 years. Since the first Social Security number was issued in November 1936, you could tell if, where and when a social security number had been issued by just looking at the first five numbers. The first three numbers, the “Area Numbers”, tell which State it was issued in (and since 1972, which zip code) ; The second two number are the “Group numbers” tell you when or if a number has been issued. The last four, the “Serial Number” are issued sequentially for each group.Last month the Social Security began issuing numbers in a program called Randomization to extend the longevity of the nine-digit SSN. They also say that it will help protect a person’s SSN and decrease fraud, misuse and identity theft by making it harder to reconstruct a person’s Social Security number from public information.The effect on background checks is that no longer is there an easy, low cost, way to verify prior to hiring that the social security number provided has been issued. The three ways to verify are discussed below (CBSV,SSNVS and E-Verify)Social Security Trace A standard component of any background check.It is a research tool from independent, third-party sources that provide your candidate’s name and address history.The name and address history will identify the names and counties that need to be checked for criminal records.Does not come from SSA, While it does not verify that a particular social security number belongs to a particular individual it is a critical piece of an effective, due-diligence background.The prime source of this data comes from credit header files of the three major credit bureaus.Problems with this data include the fact that names can be misspelled; SSN and address can be entered incorrectly from misreading handwriting or other data entry errors. Also if the person has ever jointly applied for credit or co-signed for another’s credit application, other names may show up on the social security trace. If the person is young, new to the country or has had limited or no credit, there may be no names or addresses showing up.. The social security trace is built by utility companies, credit card companies, banks, landlords, and many other private businesses when they ask or even require a social security number before a new account can be opened. This information is then often reported to the three major credit bureaus. They then capture record the SSN, along with an individual's identifying information in the top portion or "header" of credit reports. Unlike the full credit report itself, this information is made freely available and the subject is never notified that this information has been accessed. It is this data that is accessed when a social security trace is run.Problems with this data include the fact that names can be misspelled; SSN and address can be entered incorrectly from misreading handwriting or other data entry errors. Also if the person has ever jointly applied for credit or co-signed for another’s credit application, other names may show up on the social security trace. If the person is young, new to the country or has had limited or no credit, there may be no names or addresses showing up.If the person’s handwriting is misread and a 1 is seen as a 7, or an 8 for a 6 or 9, or if a typo occurs during data entry, then the names associated with that incorrect social security number could show up. While a majority of the time additional names or unknown addresses are just innocent mistakes, they can also be a tip-off that there is identity theft. We are available to talk to the individual and tell them what they should do. In most cases we try to reassure them and have them run their credit reports. Other times though there aren’t mistakes, but this pulls up your candidate’s previous names, AKAs, marital or maiden names.As I said though, there are three ways to verify Social Security Numbers through government channels
STEVE:SOCIAL SECURITY: CBSV – Consent Based Social Security Verification Social Security will verify that the name submitted with a particular social security number is assigned to that number.This method can be used for any business purpose, not just for employment.It can be run pre-offer of employment, or post-offer.Does not need to be run on everyone, can be run only when there is a reason to do so, as long as a consistent standard is appliedIt requires the person to sign a Social Security Administration form (SSA-89) affirming that the number was issued to them, acknowledge that there is a penalty for perjury and that by making a false statement on the form they could be found guilty of a misdemeanor and fined up to $5,000.
STEVE:Social SecurityE-Verify- (joint Department of Homeland Security and Social Security Administration program) Must be run within three days of the person beginning workCan’t be done before they startCan’t go back and do existing employeesOnce you start the program, you have to do every new hire until you decide to quit the programRequires I-9 to be sent to us, no forms for employee to fill outGives you legal coverage both if the person is undocumented and you have them on the payroll or if you let someone go if E-verify can’t validate their right to work. The government can’t bring action against you for the hiring, and the employee can’t bring it for the termination.
STEVE:On July 26 the Equal Employment Opportunity Commission (EEOC) held a hearing to examine the use of arrest and conviction records for employment screening as a barrier to employment. On July 1, a new law gave Indiana residents with nonviolent criminal histories a way to hide their past from potential employers.For a Hoosier convicted of a misdemeanor or a Class D felony that didn't result in injury, the new law gives the ex-offender the legal right to petition the court to limit access to their criminal histories for eight years if they don't commit any more crimesDATABASES: While criminal records databases are useful in identifying potential criminal records they should not be relied upon as accurate or complete for several reasons: Most jurisdictions do not make their records available in bulk electronic format, which means that many important criminal records are missing from criminal records databases. Many jurisdictions remove key pieces of defendant’s identifying information (such as date of birth). This often leads to criminal records being associated by the database with the wrong person. For example, an employment applicant with a common name might be confused with a registered sex offender with the same name. Because criminal records often change over time, databases sometime report outdated information to employers. For instance, expunged or sealed cases are sometimes found in database records. Likewise, probated cases that later turn into convictions when the defendant fails to successfully complete probation are often misreportedSearching criminal records: In the U.S.the sheer number of courts to search make it impossible for the untrained person to find and check all the correct courthouses. Just at the county level there are over 3000 counties to search, many with multiple courthouses. County-equivalents = Parishes in Louisiana, Boroughs in Alaska, Washington, DC and 42 Independent Cities that are not part of counties (Baltimore, MD, St. Louis, MO and Carson City, NV and 39 cities in Virginia. Virginia's independent cities are not politically part of a county, even though geographically they may be completely surrounded by one. An independent city in Virginia may serve as the county seat of an adjacent county, even though the city by definition is not part of that county. Then there is Arlington, VA which is called just Arlington, is treated as and looks like an independent city but is really a county.If you search a county in Virginia that surrounds an independent city thinking you’ll see court records for someone living in that city, you won’t. Searching St. Louis County MO won’t pick up any court records from anyone living in St. Louis (city), MO..
STEVE:In a civil suit, one party (the plaintiff) who feels they were harmed brings a complaint against another party (the defendant). Sometimes the government is one of the parties. The government (the plaintiff) brings suit against (prosecutes) a person who they believe has broken the law (the defendant). Reasonable doubt is not required. A "preponderance of evidence" is enough in most cases. The guilt of the defendant must be proven beyond a reasonable doubt. The plaintiff can either ask for monetary relief, or equitable relief Monetary relief is when the plaintiff asks for a cash award to remedy the situation. Equitable relief is when the plaintiff asks for the court to order the other party to do or not to do something.Criminal Law1. The plaintiff is always the state or federal government.2. Punishment may be fine and/or imprisonment.3. State or federal statutes always establish criminal law.4. The jury decision in a criminal trial must be unanimous.5. The burden of proof in a criminal trial is “beyond a reasonable doubt.”6. Only the defendant may appeal in a criminal case.7. In a criminal case, the defendant is either guilty or not guilty. Civil Law1. Both parties may be anybody, including governments, corporations and individuals.2. The loser in a civil case cannot be imprisoned, even if he or she cannot pay the damages.3. Civil law is established both through state and federal statutes and through court decisions.4. The jury decision does not need to be unnani States vary. Federal courts do require an unanimous verdict.5. The burden of proof in a civil trial is “preponderance of the evidence,” which sometimes is defined as “more likely than not.”6. Either party may appeal in a civil case.7. In a civil case, the plaintiff and the defendant may both be found partially right and partially at fault.Problems: No Identifiers, many settled and dismissed so not reportableFor example, about 98 percent of civil cases in the United States federal courts are resolved without a trialE:
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TRAVIS:I’ll let you wing thisEmployment verification requirements should be configured for your particular needs. YOU MAY WANT DIFFERENT VERIFICATIONS FOR DIFFERENT POSITIONS, OR A typical employment search verifies the dates of employment and job titles for the three most recent past employers listed on a candidate’s resume or job application. Other options can be all employment for a set period of time, or a requirement of a certain number of jobs not to exceed a set period of time.If required, salary will be verified where possible. SAY THREE JOBS NOT TO GO BEYOND SEVEN YEARS, OR ALL JOBS IN THE LAST SEVEN YEARSPer our policy, to protect the candidate and to minimize any problems for you we do not contact any current employer unless we have specific permission from the candidate.If an employer is no longer in business or if the candidate does not want an employer contacted, W-2 forms or pay stubs can always be requested from the candidate.- HOWEVER, THIS IS USUALLY THE LAST RESORT AND ONLY IF YOU AGREE TO IT AS THESE CAN BE FORGED OR ALTERED.The preferred verification is to contact the HR or payroll department of a company to get the verification, although a number of companies have outsourced their records so they can be accessed online upon payment of a fee – TELL THEM ABOUT WORK NUMBER AND OTHER THIRD PARTY RECORDKEEPERS
TRAVIS: You can either just go with this slide or add something to the narrative if you think it needs it and if we have time
TRAVIS:OFAC-SDN As part of its enforcement efforts, OFAC publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Collectively, such individuals and companies are called "Specially Designated Nationals" or "SDNs." Their assets are blocked and U.S. persons are generally prohibited from dealing with them.GSA-EPLS This list is provided as a public service by General Services Administration (GSA) for the purpose of efficiently and conveniently disseminating information on parties that are excluded from receiving Federal contracts, certain subcontracts, and certain Federal financial and nonfinancial assistance and benefits. HHS/OIG OIG’s List of Excluded Individuals/Entities (LEIE) provides information to the health care industry, patients and the public regarding individuals and entities currently excluded from participation in Medicare, Medicaid and all other Federal health care programs.Global Watch Lists a variety of government watch lists that include individuals, organizations or companies that have been placed on "watch status" by the U. S. Government or European UnionSex Offender RegistriesA check of the sex offender registries of all fifty states, Guam, Puerto Rico, Northern Mariana Islands, and the 26 Indian Nations/Bands/Tribes
STEVE:Bottom line is the law is developing, there are a lot of issues to consider: accuracy of the information found, is the information permissible to be used in a hiring decision,, it can be a legal minefield for you to cross, but it can also provide information that may be considered. Don’t have a third party do it, and if you do it yourself, have a firm, written policy in place to protect yourself.For employers wanting to use social network sites to screen a candidate, the safest path when using the Internet is to obtain consent from the candidate first and only search once there has been a conditional job offer to that candidate. This procedure helps ensure that impermissible information is not considered before the employer evaluates a candidate using permissible tools such as interviews, job-related employment tests, references from supervisors, and a background check.At that point, after using permissible screening tools, the reason for employers to search social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about the employer’s firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.In addition, employers in the sourcing stage may want to consider having a clear internal policy and documented training that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are valid predictors of job performance will be considered, taking into account the job description, and the knowledge, skills, and abilities required for the position. It also helps to have objective and documented methods and metrics on how to source and screen on the Internet.Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible background screening information is not given to the decisions maker. The in-house background screening should also have training in the non-discriminatory use of background screening information, knowledge of the job desiccation and use objective methods that are the same for all candidates for each type of position. That way, only permissible information is transmitted to the person that is making the decision. Again, this is best done post-offer but pre-hire and with consent. An employer may be looking for online information concerning upon job suitability. For example, did the potential employee say derogatory things about past employers or co-workers, or demonstrate that they are not the best candidate for the job. Although employers may request that background screening firms perform this function, there are a number of drawbacks. First, a background screening firm does not have the same in-depth knowledge the employer has of the details of the position. In addition, if a social network background check is done by a background screening firm, the search falls under the federal Fair Credit Reporting Act (FCRA) which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy. Because a background screening firm has no way of knowing if the online information is accurate, it is difficult for background screening firms to perform this service consistent with the FCRA. In other words, due to the FCRA, background screening firms may not be best suited to perform these types of ‘social network background check’ searches.On the other hand, failure to utilize these social networking sites when a search could have revealed relevant information could expose an employer to claims of negligent hiring. The bottom line is that employers must approach using social network background screening with caution before assuming everything is fair game in the pursuit of job candidates or otherwise face potential legal landmines that could destroy their business.http://www.esrcheck.com/wordpress/2010/12/21/esr-background-screening-trend-6-for-2011-using-social-network-sites-such-as-facebook-to-screen-job-candidates-increases-legal-risk-for-employers/
STEVE:Current six states have placed restrictions on the use of credit reports for employment purposes: Each state’s requirements and limits differ and we can provide you specifics about each state as needed. Some will let you run a credit report if you provide written notice as to why the credit report is needed for a particular position, some are even more strict. Hawaii considers a credit report run without following their very strict law to be a civil rights violationCa AB22 passed housebut re-referred to Committee on Appropriations 06-28-11
STEVE:The majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs. Also, drug testing is NOT required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances. It is very important that before designing a drug-testing program you familiarize yourself with the various state and Federal regulations that may apply to your organization.Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services. These Mandatory Guidelines for Federal Workplace Drug Testing include having a Medical Review Officer (MRO) evaluate tests. They also identify the five substances (amphetamines, cannabinoids, cocaine, opiates and phencyclidine) tested for in Federal drug-testing programs and require the use of drug labs certified by SAMHSA. While private employers are not required to follow SAMHSA's guidelines, doing so will help them stay on safe legal ground. Court decisions have supported following the guidelines and testing for only those drugs identified in them and for which laboratories are certified. As a result, many employers choose to follow them.(http://www.dol.gov/elaws/asp/drugfree/drugs/screen92.asp)
Steve:Background screening is necessary but be complicated. It doesn’t need to be for you if you have a good partner to work with. We are here to help you stay out of trouble and help you make sure you are making an informed hiring decision.We will send a copy of this to everyone who attended and we are always available if you have any questions
