The highly unregulated background screening industry has peddled extremely low quality background checks by relying on incomplete databases, limiting the scope of the search to 7 years or not including alias names. Now, there is a fast growing movement to restrict the use of criminal background checks. It is critical that staffing companies understand how to conduct legally compliant criminal background checks that align with:
• Ban the Box
• EEOC 2012-2016 Strategic Plan
• Fair Credit Reporting Act
• Social Media Background Checks
Warning how background checks can get your staffing agency in big trouble
1. Warning! How Background Checks Can
Get Your Staffing Agency in Big Trouble
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2. Background
Founder/CEO Safe Hiring Solutions
Co Founder/ CEO
Violent Crime Detective Metro Nashville PD
2,600 clients
Provide violence prevention training/ consulting:
U.S. Dept of Justice
U.S. Dept of Defense
U.S. Homeland Security
Federal Law Enforcement Training Center
National Sheriff’s Assoc
Indiana Law Enforcement Training Academy
Numerous State Attorney General Offices
3. Truth about background screening industry
Highly unregulated
Historically low quality product/service
No standard of care
Reliance on incomplete databases
FCRA provides consumer protection but no
standard of care beyond up-to-date information
Limit reporting to 7 years
Alias names
4. Why Should You Be Concerned?
Your Brand Reputation
Legal Consequences
Selecting the right screening partner critical
We can provide integration to your systems
AND provide high quality checks & service
5. Best Practices in Background
Screening
Core Criminal Package
SSN Verification
National Criminal
Database
National Sex Offender
County Criminal Search
Additional Solutions
BMV Records
Federal Criminal Search
Employment Credit Report
Child Abuse Registry
Employment Verifications
Character Reference
Checks
eReferenceCheck
6. Due Diligence
Negligent Hiring Doctrine: If an employer hires someone
that they either knew or should have known was dangerous
or unfit for a position and it was foreseeable that someone
could have be harmed then they could be sued for negligent
hiring. It is the "should have known" that creates problems
for employers.
Negligent Retention Doctrine: If employer becomes aware or
should have become aware of problems with an employee
who demonstrated unfitness and employer takes no corrective
action (investigating, reassignment or termination). It is not
enough to just screen new hires. Due diligence must be
exercised in an ongoing safe workplace program.
8. #1 “Ban the Box”
Removes questions on application concerning criminal history
Removes valuable integrity tool for employers who compare
screening reports against applications
Theory-
Ex- offenders being disenfranchised
Criminal history preventing opportunity to interview
Does NOT:
Prevent asking about criminal history during interview
Conducting criminal background checks
Numerous municipalities (Indianapolis studying)
Several bills pending in state legislatures
9. #2 EEOC 2012-16 Strat Plan
EEOC approved 4/25/12 by
4-1 vote
Guidance effective
immediately
No public comment
Game plan for the EEOC
field offices
10. Guidance replaced:
1987 EEOC Policy
Statement regarding
conviction records
Zero tolerance policies
3 pronged approach
1990 Policy Guidance on
the Consideration of Arrest
Records
11. Commissioner Constance Smith
Barker Lone Dissenter…
“Utter lack of transparency”
“Public has been intentionally
shut out of this process”
Places a burden on business
owners
Exceeds the authority for a
regulatory commission
Not congress
Not courts
12. Disparate Impact
EEOC demonstrates the
employer’s facially neutral
policy has disparate impact on a
protected group
Burden is on employer to show
policy is:
Job related
Consistent with business necessity
EEOC interested in who is
being denied based on
background check
13. Case law…
Green v. MO Pacific
Railroad (1977)
Zero tolerance convictions
3 pronged approach
El v. SEPTA
Murder 40 yrs ago
Policy no violence
3rd Circuit Ct in favor of
SEPTA
14. Old Guidance…
Employer could demonstrate Title
VII compliance by using 3
factors with background checks:
1. Nature & gravity of crime;
2. Time that has passed since
conviction/completion of
sentence; and
3. Nature of job held or sought
15. New Guidance
Now employers may satisfy Title VII
by using internal policy if it is
“narrowly tailored”
Not clear what this looks like
Guidance references “targeted
screens” based on Green factors (3
prongs)
Allow applicant/employee to
explain the circumstances of the
conviction
16. Guidance list several considerations:
Facts & circumstances
surrounding the offense or
conduct
Self reporting from candidate?
How to verify?
Evidence candidate performed
same type work, post
conviction, with same or
different employer with no
incidents of criminal conduct
Employment or character
references
17. Arrest records require further
investigating….
Arrest alone should NOT be used
to deny employment
Certain minority groups arrested
at disproportionately higher rates
FCRA restricts reporting of arrest
records to 7 yrs
18. Considerations….
Review criminal background screening
policies
Use of arrest/ non-convictions
Green 3 pronged test
Zero tolerance policies
19. #3 Fair Credit Reporting Act
Yes it does apply even if you don’t use credit info
FCRA applies if you pay a 3rd party vendor like SHS
Specific requirements:
Disclosure & Authorization (written or electronic)
If taking adverse action based in “whole or part” on a
background screening report:
Pre-Adverse Action Letter, Copy of Report,
Summary of Rights under FCRA
Adverse Action Letter
20. Willful Non- Compliance of FCRA
Hunter, et al v. First Transit
Inc.
Failed to provide
disclosures to applicants
BEFORE running
background check;
Failed to follow two-step
adverse action process
when denied employment
$5.9 Million Settlement
21. Several recent lawsuits for FCRA
violations
Domino’s Pizza $2.5 Mil
Running checks without authorization
Not providing Pre-Adverse Action information
HireRight
Allegedly providing inaccurate information
$2.6 million settlement
K-Mart $3 Mil for FCRA Violations
Selection of Screening Firm Critical
22. #4 Social Media Background Checks
Be careful….there can be legal implications:
Discrimination- seeing protected information like
marital status, age, race, etc.
Privacy- Yes even the internet has a reasonable
expectation of privacy since most sites require
friending
Authenticity-How do you know it is your candidate?
Common names?
23. Social Media Concerns
How do you verify information?
How do you know it is your candidate?
How do you know that your candidate is not
operating online under an assumed identity?
21 states have restricted use of social media checks
Congress HR 537 would make it illegal to ask for
social networking & email passwords