The EEOC, Congress, and many state legislatures are closely scrutinizing how employers use background checks, especially criminal histories and credit reports. This presentation will walk employers through the process of preparing a background screening policy that helps ensure a safe and productive workforce while staying out of regulators’ cross hairs. On April 25th, 2012, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.” This was the first guidance on this topic issued by the EEOC in more than 20 years and reflects the EEOC’s recent scrutiny of employers’ use of criminal records in making employment decisions. In addition to Title VII, other federal and state laws regulate employer’s use of criminal records, credit reports, and other information. This presentation will walk employers through the process of preparing a background screening policy that helps ensure a safe and productive workforce while staying out of regulators’ and plaintiffs’ attorneys’ crosshairs. In this presentation, we’ll cover: The legal and safety reasons employers conduct thorough background checks. Employers’ responsibilities under the Fair Credit Reporting Act. Considerations in developing a background check and due diligence policy. Title VII of The Civil Rights Act of 1964 and its application to background checks. State-specific laws governing background checks. You can download the presentation and the notes and a sample relevance matrix. Presentation Calendar: http://www.imperativeinfo.com/presentation-calendar/ Human Resources Webinars: http://www.imperativeinfo.com/webinars/ Follow Mike Coffey: Facebook: https://www.facebook.com/pages/Imperative-Information-Group/108100569271661 Twitter: @mrcoffey @badhiredays Website: http://www.imperativeinfo.com/ Contact: http://www.imperativeinfo.com/contact/I. The Case for Background Screening II. Strengths and Weaknesses of Criminal Background Screening Tools III. Verification of Credentials and Work History IV. The Fair Credit Reporting Act V. Title VII and EEOC Scrutiny of Background Checks VI. State Law Considerations VII. Identity Theft in Criminal Records http://imperativeinfo.com/human-resources-webinars/

1. What Employers
Need to Know About
Background Checks
Mike Coffey, SPHR
President
Imperative Information Group
www.imperativeinfo.com

2. Homeland Security concerns have
heightened employers’ responsibilities.

3. Good corporate governance now
includes human due diligence.

4. Employees face threats from within, not
just outside, the workforce.
794 assaults & violent acts
517 workplace murders
413 by shooting
- 2008 Census of Fatal Occupational Injuries, US
Department of Labor Bureau of Labor Statistics

5. Employers’ liability for employees’ actions
costs both money and goodwill.
• 99,922 EEOC charges filed in
2010 (20% increase since
2005)
• Expects 110K charges in 2011
- 2010, EEOC

6. Employee theft is the single largest
cause of retail loss (“shrink”).
2009 National Retail Security Survey

7. Employees’ off-duty troubles may
correlate to their fitness for duty.
Stephen Robertson

8. Motor vehicle reports (MVRs)

9. Verification of
Verification of
employment, education, license, an
d education, employment, licenses,
certifications claims. and
certifications

10. Verification of
Credit without a score
employment, education, license, an
d certifications claims.

11. Verification of
Professional and personal
employment, education, license, an
references
d certifications claims.

12. Verification of
Civil litigation and related
employment, education, license, an
matters
d certifications claims.

13. The most important thing I’ll say today...

14. Forget everything you’ve seen on TV...

15. Local jurisdictions regularly fail to report
criminal convictions to the state database.

16. 34% of criminal convictions are missing from
Texas DPS’ database.
Clifton Williams Stephen Barbee Anthony Shore

17. Offenders often move to new states.
Charles Clarkston

18. There is no reliable “national” or
“nationwide” criminal records source.

19. “National” databases miss 60% or more of
available criminal records.
Michael Gilbert

20. State and national criminal databases do
not reflect pending criminal cases.
58% of felony defendants
released prior to trial
33% “pretrial misconduct”
18% arrested for new offense.
- Felony Defendants in Large Urban Counties, 2008, US
DOJ Bureau of Justice Statistics

21. “National” databases regularly report
outdated or misidentified records.
Entre Nax Karage

22. The county courthouses’ “live” criminal
records are the best source.

23. Limiting research to a single county will miss
offenses in other jurisdictions.
Jacob Muniz

24. Limiting the scope of criminal reports to
seven years means missing significant risks.

25. Federal criminal records, though difficult to
search, should not be overlooked.

26. A good criminal background check
begins with good identity research.
Employment ID Database
Application
Associated
Name Names
DOB
SSN Issuance
SSN
Prev. addresses Address
history

27. Research should be conducted in each
jurisdiction associated with the applicant.
Federal
Research
Identity
Research
County
Research
State &
County
“National” Possible
records Research
Databases

28. The federal Fair Credit Reporting Act
governs background checks.

29. Disclosure must be made and written
authorization received.

30. Disclosure must be made and written
authorization received.

31. Disclosure must be made and written
authorization received.

32. Any potentially negative information
creates employer responsibilities.
• Criminal records
• Employment verifications
• Driving records
• Education records
• References

33. The employer must provide information
prior to making an adverse decision.

34. The employer must provide additional
notice after taking the adverse decision.

35. The FCRA limits what can be reported in
background checks.

36. The FCRA limits what can be reported in
background checks.
Reportability of Negative Information
Age < 7years Age > 7 years, Age > 7 years,
wages < $75K wages > $75K
Non-conviction criminal Reportable Not reportable Reportable
cases under federal under federal under federal
(dismissals, acquittals, law law law
cases not prosecuted –
includes cases
dismissed upon
completion of deferred
adjudication)
Civil cases, liens, Reportable Not reportable Reportable
judgments, credit items under federal under federal under federal
law law law

37. The FCRA limits what can be reported in
background checks.
Reportability of Negative Information
Age < 7years Age > 7 years, Age > 7 years,
wages < $75K wages > $75K
Criminal cases ending Reportable Not reportable Reportable
in conviction (guilty) under federal under federal under federal
law law law
Age < 10 years Age > 10 years, Age > 10 years,
wages < $75K wages > $75K
Bankruptcy Reportable Not reportable Reportable
under federal under federal under federal
law law law

38. Sample State Consumer Reporting Laws
Texas’ only restriction (limiting all
information to seven years) was
invalidated by the Fair and Accurate
Credit Transactions Act (FACTA),
though it is still widely quoted by
attorneys and screening firms
unfamiliar with the interplay of the
state and federal laws.

39. Sample State Consumer Reporting Laws
 The authorization and consent must
contain a “box” for the consumer to
check to receive a copy of the report.
 Employers may not inquire about
sealed records and applicants may
state that they have no conviction

41. Sample State Consumer Reporting Laws
 Employers may not consider non-
conviction criminal information.
 Convictions can only be reported for
seven years (including
murder, rape, arson, etc.)
 Special protections for marijuana
convictions and sex offenders.
 Special notices to applicants when
obtaining consent to procure
background check.

42. Sample State Consumer Reporting Laws
 Employers may not inquire
about criminal records on
the initial written
application.
 Time limits effective 2012:
 Felonies: 10 years
 Misdemeanors: 5 years
 Murders, manslaughter and certain sexual
offenses: no limit

43. Sample State Consumer Reporting Laws
Many states have
passed or are
considering laws to
limit employers’ use of
credit reports.

44. Title VII of Title VII of the of 1964
the Civil Rights Act
Civil Rights Act of 1964

45. Title VII of the Civil Rights Act of 1964
 Prohibits both intentional discrimination
(“disparate treatment”) and seemingly neutral
policies without business necessity that have
adverse impacts on protected classes (“disparate
impact” - see Griggs v. Duke Power)
 Policies must have a manifest relationship to
employment role with no viable alternatives to
qualify as a business necessity
 Heavily impacts employment qualifications,
tests, and background checks

46. Title VII of the Civil Rights Act of 1964
Criminal Records Brightline Rule:
Have you ever been arrested?
 No
 Yes (please deposit your application in the
trashcan on your way out)

47. Title VII of the Civil Rights Act of 1964
When reviewing criminal records, an employer must consider:
– The relevance of the offense to the position, including
severity and time passed since the offense
– The reasonable likelihood that the person committed the
offense
Disposition (final judicial outcome) is not the issue!
See EEOC Policy Statement on the Issue of Conviction Records under
Title VII of the Civil Rights Act of 1964 and Policy Guidance on the
Consideration of Arrest Records in Employment Decisions under Title VII of the
Civil Rights Act of 1964

48. Title VII of the Civil Rights Act of 1964
When reviewing criminal records, an employer must consider:
– The relevance of the offense to the position, including
severity and time passed since the offense
– The reasonable likelihood that the person committed the
offense
Disposition (final judicial outcome) is not the issue!
See EEOC Policy Statement on the Issue of Conviction Records under
Title VII of the Civil Rights Act of 1964 and Policy Guidance on the
Consideration of Arrest Records in Employment Decisions under Title VII of the
Civil Rights Act of 1964

49. Title VII of the Civil Rights Act of 1964

50. Title VII of the Civil Rights Act of 1964
Webinar
Background Checks Under Fire
February 29, 2012
12:00 pm CST
Register at
http://www.imperativeinfo.com

51. Identity theft is a growing problem in criminal
records.
1996 – Berkeley, SC 2001, 2002 – Navarro, TX
• Domestic violence • Criminal Trespass
• DWI • Theft
• DWI

52. Congratulations!
You just earned 1 hour of HRCI general
recertification credit:
Title: What Employers Need to Know About
Background Checks
Date: 02/15/2012
Program: (email me at
coffey@imperativeinfo.com)