EEOC guidelines on background checks causing a stir

We know we’ve written about this before, but there seems to be some lingering confusion regarding the Equal Employment Opportunity Commission’s recent guidelines changes to the way background checks are used in pre-employment screening protocols. So we thought we’d try to clear it up.

In April, the EEOC issued new guidance for employers to use when considering arrest and conviction records in employment decisions. It determined that the use of an individual’s criminal history during the interview and hiring process could constitute discrimination and makes an attempt to discourage using the information differently based on an applicant’s race or national origin.

Some employers may have interpreted this in the broadest sense, doing away with criminal records checks as part of their employment screening processes because they’re scared of legal repercussions. But that’s not the safe way to go, nor is it what the EEOC intended. To remain fair and safe, employers should still conduct criminal background checks, but only consider convictions, not arrests. Arrest records are not proof of criminal conduct, so they should not be used as grounds for exclusion. Conviction records, on the other hand, typically serve as sufficient evidence that a person committed a crime. Use of these records by an employer makes good legal and business sense.

Let’s be clear, one more time: The EEOC cannot mandate that employers must refrain from obtaining or using conviction records, nor are its new guidelines trying to dissuade employers from doing so. They simply seek to ensure that such information is not used in a discriminatory way. Employers should not be using a blanket policy, such as “no felony convictions in the last seven years.” Instead, they should review each criminal background report on a case-by-case basis and make sure the company’s background check requirements make sense for that position.

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Keep policy well defined to comply with EEOC guidelines

The new Equal Employment Opportunity Commission guidelines on background checks for prospective employees was created to ensure nobody is being unfairly targeted or discriminated against due to their criminal past. Basically what the guidelines want to avoid is an employer using someone’s criminal conviction from many years ago as an excuse to not hire them for a job that is completely unrelated to the crime they committed.

To make sure your company is in compliance with the guidelines, avoid blanket refusals to only specific types of jobs (those who work with the finances of your company, for example). Other tips for business owners:

  • Define your policy as narrowly as possible, and don’t stray outside those parameters for any prospective employee.
  • Be specific about essential job requirements for each position, along with the circumstances under which work is done.
  • Set a length of time for which any criminal conduct will be disregarded by your employment screening reports. (For example, if the conviction was 10 years in the past.)
  • Include the justification for the policy and for each procedure. If you end up needing to justify your action regarding a prospective employee, you want your policy to be clearly written.
  • Document any counsel and/or research used in creating the policy and procedures. Let them know there were legal and industry experts behind your decisions.
  • Train managers, recruiters, and other decision makers on the policy and procedures.
  • Don’t ask about convictions on job applications. Save it for the background check.

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New Jersey facing incomplete compliance with new trustee screening law

As of last Friday, more than 400 school board and charter school trustee members across the state of New Jersey had yet to comply with the new school trustee screening law that went into effect in May. The law required people responsible for deciding local school policies and budgets undergo background checks by the end of  2011 or be immediately removed from office. Crimes that would bar someone from serving included murder, robbery, luring a child, assault and drug possession or distribution.

According to the state Education Department, 95 percent of the more than 4,700 school board members and 70 percent of charter school trustees in New Jersey had been screened since the law was signed in May. Twelve board members had been barred from serving after completing their background checks.

The new state law is an example of how the laws are changing across the country to make background checks and pre-employment screening more of a mandatory part of the position-filling process, whether someone is elected, hired or volunteers. Likewise, the fact that not everyone is in compliance with it after more than six months is a telling example of how some school districts, employers and others are still resistant to the process.

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Two new laws change the background screening business in California

 If you are an employer in California or you do business in that state, you should be aware of two new laws taking effect on Jan. 1 that might change your pre-employment screening practices.

The first change, thanks to California Assembly Bill 22, is that it will be against the law for most employers and prospective employers in California from obtaining credit reports for employment purposes. Exceptions to this rule include financial institutions and those hiring for certain positions, such as managers, those in law enforcement, and positions that require access to personal information or financial information.

The other change is due to California Senate Bill 909, which appears to be the first law in the nation that addresses the issue of consumers’ personal information that is collected during background checks for employment purposes being sent “offshore” and outside the United States or its territories beyond the protection of U.S. privacy laws.

SB 909 amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires a new disclosure and additions to a Consumer Reporting Agency’s privacy policy to be made to consumers before their personal information is sent outside of the United States. It does not regulate or prohibit the sending of personal information outside the U.S., but it requires that consumers be told of the background screening agency’s privacy practices, including whether the consumer’s personal information will be sent outside the country.

If these new regulations will be affecting your business or the way you conduct employment screening, now is the time to read up on the changes and make sure your company, and the pre-employment screening service you hire, remains in compliance with the law.

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New PA measure aims to prevent workplace violence in health care facilities

In an attempt to improve workplace safety in a number of health care facilities across Pennsylvania, the Health Care Facilities Workplace Violence Prevention Act was recently introduced in the Pennsylvania House. The act, called HB 1992, requires Pennsylvania hospitals and other health care facilities to take steps to protect health care workers from being the victims of workplace violence. Those steps include assessing security risks, finding ways to make the workplace safer, and assisting workplace violence victims in their efforts to report such incidents.

The new legislation comes in response to the recent rise in workplace violence incidents targeting health care professionals across the U.S., particularly nurses. Over half of the nurses surveyed by the Emergency Nurses Association in 2010 reported experiencing physical or verbal abuse at work in the previous seven days, and between eight and 13 percent of emergency nurses said they are victims of workplace violence incidents every week.

Employers at health care facilities need to make workplace safety a top priority, and that begins with the hiring process. A thorough employment screening process can help weed out those who pose a safety risk to fellow employees.

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Is the Use of a Credit Check Always Legal?

More and more employers are choosing to use credit checks on employees as part of their pre-employment screening process. The thought is that looking at a person’s credit report is a pretty good indicator of whether that person is fiscally responsible and, therefore, possesses at least some of the traits that make up a good solid employee.

But it’s important for an employer to tread lightly and be careful in regards to credit checks, as some laws regarding the use of credit checks are different from state to state. For instance, some states, including Oregon and Washington, only allow an employer to use a credit check on an employee if it’s truly applicable to the job, such as an accounting position. If you want to use a credit check on someone applying for a position in, say, sales or marketing, then a credit check would be illegal. And according to the federal Fair Credit Reporting Act, you always have to ask an applicant’s permission to run a credit check.

Credit checks can be a great resource to use when deciding who is right for a particular job. But keep in mind that laws are being changed and fine-tuned regarding their use in the private sector. Some state lawmakers and in Congress are mulling over bills that would limit the usage of credit checks for employers. So keep up on the laws that apply to your business in your state, and make sure the employment screening service you hire is on top of things too.

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Recent studies further debate about background checks leading to discrimination

For awhile now there has been some debate about whether employment screening is discriminatory against some minorities. Attorneys with the federal Equal Employment Opportunity Commission have charged that blacks and Latinos are having a harder time finding jobs in the age of pre-employment screening because these minority groups have higher rates of arrests and convictions than whites. Some advocacy groups disagree, including Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research that is a leading voice of the African-American community. But the issue has resulted in much debate and several lawsuits citing workplace discrimination.

Now a recent letter from three members of the U.S. Commission on Civil Rights stands to open the debate further. The letter claims recent studies suggest the use of criminal background checks does not automatically lead to lower hiring rates of minorities. The letter cited a 2006 research paper — “Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers” by Harry Holzer, Steven Raphael, and Michael Stoll – that analyzed the effect of criminal background checks on the hiring of blacks and found that employers using criminal background checks were more likely to hire black workers, especially men, than those who didn’t have that information. Another study conducted by Stoll found that, in the absence of performing criminal background checks, employers were likely to discriminate using age or race as indicators of past activities.

These studies will no doubt further the debate about this issue. Stay tuned for further developments!

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Follow Protocol to Avoid Mistakes in Background Check Process

There’s a reason the Fair Credit Reporting Act regulates the way employers use professional third-party background check companies, and that’s to ensure everyone is treated fairly and mistakes aren’t made. Consider the 53-year-old man in Michigan who recently was stripped of his new job because of a felony conviction found in the background check process — a conviction that belonged to another man with the same name.

The man who lost his new job has now filed several federal lawsuits, including one against the background check company that allegedly compiled the report. He claims the background check company didn’t follow FCRA regulations when handling his background report.

It’s not uncommon for is why FCRA regulations must be strictly adhered to, to make sure an applicant is informed of the background check is being done, and is notified if something is found on the report that could have a negative impact on the applicant’s chances for the job. Then the applicant should be given the chance to dispute errors in the background check, although the employer is not required to hold the job open during that process.

Besides being sure to follow proper protocol during the background check process, do some quality research to make sure you’ve hired a reputable, accredited background check firm that has checks and balances in place to ensure accuracy in its reports.

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What Cant You Find Out?: Some Personal Information Is Protected by Law

Employers use a variety of means during a background check to find out more about a potential hire. Criminal records, sex offender registries, credit reports, driving records and motor vehicle registrations, Social Security numbers, past employers, and even fingerprints are sometimes used to dig into a person’s background for information pertinent to the job for which the person has applied.

There are, however, several things pertaining to the pre-employment screening that an employer is not allowed to do. According to the Small Business Administration, the following rules apply to pre-employment screening:

• Lie detector tests: Lie detector tests are unlawful in the pre-employment screening process, according to the Employee Polygraph Protection. Exceptions to this rule include armored car services and pharmaceutical businesses.

• School records: School records and transcripts are protected by the Family Educational Rights and Privacy Act and are to be kept confidential.

• Medical records: Employers can’t request a job applicant’s medical records, and some state laws protect the confidentiality of medical records. Employers are within their rights to ask about an applicant’s ability to perform the duties of the job, but if the disabled person can do all tasks, then the disability must not factor into an employer’s decisions when hiring or promoting.

• Bankruptcies: Bankruptcies may show up on a candidate’s credit report, but the Federal Bankruptcy Act prohibits employers from discriminating against a potential hire or an employee due to a bankruptcy filing.

• Military records: The military may choose to disclose limited information without the candidate’s consent, including name, rank, salary, duty assignments or status, and awards. Consent is likely to be required for other types of information.

Private School Applicants Should Be Vetted Similar to Those in Public Schools

While public school teachers have for many years been required to submit to a thorough background check, private school teachers have largely not been under such standards. Though several states have made background checks for private school teachers and staff a requirement, many others still don’t have such laws in place, leaving thousands of children vulnerable to criminals and other unsafe adults who shouldn’t have access to our nation’s youth.

One such state currently working to change this law is Wisconsin. A new bill introduced by Rep. Tamara Grigsby, D-Milwaukee, with colleagues Andy Jorgensen, D-Fort Atkinson; Cory Mason, D-Racine and Sandy Pasch, D-Whitefish Bay, would bring private schools funded by taxpayer dollars into compliance with requirements at public schools — including subjecting those teachers and staff to background checks.

While that’s a step in the right direction, those in charge of private schools that aren’t yet in subjected to state laws regarding background checks should still give careful consideration to adopting the process, if they haven’t already. The expense of such pre-employment screening, while a consideration, is considerably less than the potentially astronomical legal fees, not to mention the anguish and stress, that a private school would be subjected to if a problem was found or a crime occurred involving a member of the school’s staff who wasn’t properly vetted in a thorough employment screening process.

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