Latest employment screening trends challenges objectives
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This document discusses the latest trends in employment screening and challenges faced by employers. It addresses issues like litigation risks, ban the box laws, individualized assessment requirements, and legalized marijuana. The objective is to help employers navigate these challenges and streamline their screening processes to minimize legal risks and improve the candidate experience to stay competitive in attracting top talent. Top takeaways include ensuring proper disclosure, authorization and adverse action procedures to avoid FCRA litigation; considering standardizing criminal history inquiries and assessments; adopting substance abuse policies for legal marijuana and new OSHA rules; and making screening a transparent, positive experience for candidates.
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Latest employment screening trends challenges objectives
- 1. 9/7/2017 © 2017 CareerBuilder Laura Randazzo, Vice President of Compliance CareerBuilder Employment Screening Mary Poquette, CEO, Poquette Screening Solutions, LLC Everything You Didn’t Know About the Latest Employment Screening Trends — But Were Too Afraid to Ask
- 2. Laura Randazzo 2 Name Company Name Laura Randazzo Vice President of Compliance CareerBuilder Employment Screening 25 Years of Screening Experience Compliance Subject Matter Expert © 2017 CareerBuilder
- 3. Mary Poquette 3 22 Years of Screening Experience Compliance Subject Matter Expert Compliant Client Solutions Designer Mary Poquette CEO, Poquette Screening Solutions © 2017 CareerBuilder
- 4. 4 The information in this presentation is provided for general educational purposes only and should not be construed as legal advice. Consultation with qualified legal counsel is recommended. © 2017 CareerBuilder
- 5. 5 89% Safety Protect Company Reputation 52% 45% Improve Quality of Hire 44% Law and Regulation © 2017 CareerBuilder Background Screening 96% HR.COM and NAPBS Survey Data
- 6. 6 Employment Screening Discussion Challenges Objectives • Litigation • Ban the Box • Individualized Assessment • Criminal Record Use • Restricted Inquiries • New OSHA Requirements • Legalized Marijuana • Talent Competition © 2017 CareerBuilder
- 7. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Litigation Objective: Litigation Avoidance
- 8. FCRA Litigation 8 • Disclosure • Authorization • Adverse Action Targets Results • $4.75 Million • $12 Million • $6.7 Million • $22.5 Million • $4.4 Million • $6.8 Million • Class Action • Hyper Technical • Willful Noncompliance o $100 - $1,000 o Punitive Damages and Legal Fees • State Courts Strategies 7 © 2017 CareerBuilder
- 9. FCRA Litigation Avoidance 9 • Standalone Disclosure or Disclosure/Authorization o Clear and Conspicuous o CAUTION: Waiver of Liability • Adverse Action o Copy of Report and Summary of Rights o Supplemental Notices • Document Process; Train Team Members Mitigation 8 © 2017 CareerBuilder
- 10. EEOC Litigation 10 • Theory of “Disparate Impact” • Settlements • BMW of South Carolina • Pepsi Bottling • Dollar General 9 © 2017 CareerBuilder
- 11. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Ban the Box Objective: Minimize Disruption
- 12. Ban the Box © 2017 CareerBuilder12 28 / 150 ?? ? Specific Report Elements Time Period Individualized Assessment Assessment Forms and Notices
- 13. Ban the Box - Streamline © 2017 CareerBuilder13 28 / 150 ?? ? Specific Report Elements Time Period Individualized Assessment Assessment Forms and Notices
- 14. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Individualized Assessment Objective: Streamline
- 15. Individualized Assessment Recommends Requires or Recommends Source: NELP Adds Forms, Notices and/or Timelines • Buffalo, NY • Los Angeles, CA • New York City, NY • Rochester, NY • San Francisco, CA © 2017 CareerBuilder15
- 16. Individualized Assessment Targeted Screens + Individualized Assessment © 2017 CareerBuilder16
- 17. Individualized Assessment – Streamline “Have y o u been co nvicted …” Criminal History Inquiry Post Offer: Disclosure, Authorization, Candidate Data Collection Do es negative info rmatio n warrant pre -adverse action? No Inquiry; Wait for Background Check Results “Po tentially Disqualif y ing …” Pre-Adverse Action Candidate Options: Complete Assessment Form and/or Contact Us © 2017 CareerBuilder17
- 18. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Criminal Records Use Objective: Protection
- 19. Criminal Records Use • All Applicable Law • Pardons, Expungements, Sealed Records; Juvenile Records CRA Reporting • Non-Convictions • Look-Back Period Client Driven Reporting 19 © 2017 CareerBuilder
- 20. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Restricted Inquiries Objective: Proper Application
- 21. 21 Restricted Inquiries Credit Compensation 21 © 2017 CareerBuilder
- 22. 22 Credit Restricted Inquiries States • California • Colorado • Connecticut • Delaware • District of Columbia • Hawaii • Illinois • Maryland • Nevada • North Dakota • Oregon • Vermont • Washington Cities • Los Angeles • New York City • San Francisco 22 © 2017 CareerBuilder States • Massachusetts, Delaware, Oregon Cities • Los Angeles, New York City, Philadelphia, San Francisco Compensation
- 23. 23 Credit Compensation Restricted Inquiries – Proper Application • Observe State and Local Limitations • Consider Position Responsibilities 23 © 2017 CareerBuilder
- 24. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge: New OSHA Requirements Objective: Compliance Best Practices
- 25. New Requirements 25 © 2017 CareerBuilder
- 26. 26 Post Accident Drug Testing Testing Not Prohibited Termination or Retaliation Prohibited Testing To Determine Cause © 2017 CareerBuilder
- 27. Improve Work Place Safety Improve Tracking of Workplace Injuries & Illnesses Prevent Employer Retaliation OSHA’S Motivation 27 © 2017 CareerBuilder
- 28. 28 What’s at Stake Litigation • Employee Rights • Unfair Practices • Class Action Fines (Per Day) Willful $70,000 - $124,000 Serious $7,000 - $12,471 © 2017 CareerBuilder
- 29. • Review Policy; Update Per New OSHA Requirements • Train Staff • Post Workers’ Rights: OSHA “It’s The Law” • Consider Scope of Post Accident Testing Best Practices 29 © 2017 CareerBuilder
- 30. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Legalized Marijuana Objective: Workplace Safety
- 31. © 2017 CareerBuilder31 22 Million Reasons Legal Requirements Long Term Impact Short Term Impact 31 © 2017 CareerBuilder
- 32. © 2017 CareerBuilder32 Christina Barbuto vs. Advantage Sales “Use of medical marijuana by a qualifying patient is lawful as the use and possession of any other prescribed medication” Massachusetts Supreme Judicial Court © 2017 CareerBuilder
- 33. © 2017 CareerBuilder33 dk Legalized Marijuana - Medical 33 © 2017 CareerBuilder Medical • Alaska • Arizona • Arkansas • California • Colorado • Connecticut • Delaware • District of Columbia • Florida • Guam • Hawaii • Illinois • Maine + Recreational • Alaska • California • Colorado • DC • Maine • Massachusetts • Nevada • Oregon • Washington Medical • Maryland • Massachusetts • Michigan • Minnesota • Montana • Nevada • New Hampshire • New Jersey • New Mexico • New York • North Dakota • Ohio • Oregon Medical • Pennsylvania • Puerto Rico • Rhode Island • Vermont • Washington • West Virginia
- 34. © 2017 CareerBuilder34 Best Practices Legitimacy of Use Employer Policy Candidate Position Undue Hardship Contractual & Statutory Obligations Alternative Medications & Accommodations 34 © 2017 CareerBuilder
- 35. © 2017 CareerBuilder35 Proactive Measures State Law • All States of Operation Policy • Workplace Safety • Substance Use • Testing Marijuana • Status • Permissible • Accommodation • Alternatives 35 © 2017 CareerBuilder
- 36. 9/7/2017 © 2017 CareerBuilder #CBEmpower Challenge:Competition for Talent Objective: Win!
- 37. 37 31% Say turnaround time is too long Are concerned with outsourced vendors processing overseas 72% 54% Are frustrated by not understanding what takes so long 59% Rated the experience as “easy” © 2017 CareerBuilder Candidates and Background Screening CareerBuilder Research
- 38. 38 © 2017 CareerBuilder Candidates and Background Screening of candidates said the background check experience impacts how favorably they view an employer Candidates 48% Millennials of millennial candidates said the background check experience impacts how favorably they view an employer 63% CareerBuilder Research
- 39. 39 No Surprises © 2017 CareerBuilder Competition for Talent – Win! 38
- 40. 40 © 2017 CareerBuilder Competition for Talent – Win! Knowledge Communication Transparency • Legal and Regulatory • Internal Processes • Information Sources • Before • During • After • Status • Invitation for Information • Resource for Questions 40 © 2017 CareerBuilder
- 41. 41 Top Takeaways Litigate Proof Disclosure Authorization Adverse Action 1 Consider Standardization Criminal History Inquiry Individualized Assessment Adverse Action Processing Compensation Inquiry 2 Substance Abuse Policy Adopt Marijuana Provisions Comply With OSHA Changes 4 Make Screening a Positive Candidate Experience Knowledge, Communication, Transparency 5 Re-Evaluate Use of Credit History Criminal Record Scope 3 © 2017 CareerBuilder
- 42. 9/7/2017 © 2017 CareerBuilder Q & A
- 43. 43 © 2017 CareerBuilder Don’t forget to rate this session!
- 44. 9/7/2017 © 2017 CareerBuilder Thank you How did we do? You can tell us now by visiting the app to provide your review. Laura Randazzo lrandazzo@careerbuilder screening.com 847.890.4034 / 847.917.6778 Mary Poquette mpoquette@poquettesolutions.com 612.867.9474 / 952.456.8311
Notes de l'éditeur
- $4.75- Dish Network; $12 – Wells Fargo, $6.7 Kelly Services; $22.5 – Lowes; $4.4 = Swift Transportation; $6.8 Publix;
- At time of screening authorization Gather info Yes – Specific offense, date, interim period, Ask individualized assessment questions
- The final rule revises OSHA's regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904). The new rule requires certain employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. The content of these establishment-specific submissions depends on the size and industry of the employer. In order to ensure the completeness and accuracy of injury and illness data collected by employers and reported to OSHA, the final rule also: 1. requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; 2. clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and 3. incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. If the employer had a reasonable basis after concluding the drug use could have contributed An employer has a heightened interest in determining if drug use could have contributed to the injury or illness Improve tracking of Workplace Injuries and Illnesses Reporting requirements-effective January, 2017 (2016 due by July, 2017) Establishments with 250 or more employees that are subject to OSHA's recordkeeping regulation must electronically submit to OSHA some of the information from the Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and the Injury and Illness Incident Report (OSHA Form 301). Establishments with 20-249 employees in certain high-risk industries must electronically submit to OSHA some of the information from the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA.
- Improve tracking of Workplace Injuries and Illnesses Reporting requirements-effective January, 2017 (2016 due by July, 2017) Establishments with 250 or more employees that are subject to OSHA's recordkeeping regulation must electronically submit to OSHA some of the information from the Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and the Injury and Illness Incident Report (OSHA Form 301). Establishments with 20-249 employees in certain high-risk industries must electronically submit to OSHA some of the information from the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA.
- What’s At Stake Willful violations per day $70K to 124K Serious violations per day $7,000-$12,471
- Consider testing anyone involved and whose actions cannot be ruled out as a contributing cause of the incident
- Over 22 million current marijuana users Strong association between marijuana use and diminished lifetime achievement and motor vehicle crashes Short-Term effects of marijuana use include impaired short-term memory, impaired motor coordination, and altered judgment Substantial evidence for association between marijuana use and memory impairments lasting at least seven days Regulation and statutory requirements
- Mass SJC “Use of medical marijuana by a qualifying patient is lawful as the use and possession of any other prescribed medication” Patients shall not be denied “any right or privilege” on the basis of their medical marijuana use An Individual who uses marijuana at the recommendation of a licensed physician is a “qualified’ handicapped person and entitled to reasonable accommodation
- In a recent decision (Callaghan v. Darlington Fabrics Corp.), the Rhode Island Supreme Court has held that under Rhode Island law, an employer cannot refuse to hire a medical marijuana cardholder, even if the applicant admits during the interview that he/she will not be able to pass the employer’s mandatory pre-employment drug test.
- Drug Testing Policy Consider the type of position (Safety-could impaired employee pose an unacceptably signification safety risk to the public, or employer Will the positive test violate a contractual or statutory obligation Legitimacy of employee/applicant medical marijuana use; Equally effective alternative medications/accommodations; and undue hardship
- What can employers do? Be Proactive Are you in a state with medical/recreational marijuana law? Do you have a policy that covers drug use? Testing? Does it address marijuana? Does it define marijuana as “illegal” or prohibit it entirely? Does it clearly define what is and is not permissible, when, and where Consider accommodation and what are the alternatives
- When we drill down into some of the specifics, we find candidate feedback to include: 31% say the turnaround time is too long. Typically background checks take 2-3 business days, but sometimes longer. There are many reasons for background check turnaround time becoming extended. Things like slow processing time by the information source, backlog in courts, lack of response by schools and employers, and more. ….. Generally we can’t do very much about factors like those. Perhaps more importantly, 72% of Career Builder respondents were frustrated by not understanding what takes so long. That is something we do have some control over. We can share information upfront with the candidate about turnaround time and why things sometimes take longer. Perhaps we can even give them real time access to results. But at the outset, one of the important points to emphasize is a delay does not necessarily equate to a problem. Candidates often assume the worst. 54% of candidates expressed concern with background screening vendors processing outside the U.S. as the perceived security risk to their PII automatically becomes higher. And one final point … 59% of candidates rated the experience as “easy.” If that doesn’t seem so bad, what would the impact on your organization be if only 59% of your employees were productive and engaged.
- I suggest a fundamental concept for successful communication is simple – No surprises. Candidates want to be informed. They want to know what to expect, when to expect it, and how they will be kept informed throughout the screening process.