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Warning how background checks can get your staffing agency in big trouble
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Warning how background checks can get your staffing agency in big trouble


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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 …

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

Published in: Business, Economy & Finance

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  • 1. Warning! How Background Checks CanGet Your Staffing Agency in Big TroubleThe Webinar will begin shortly. While you are waiting please signup for our blog: http://info.safehiringsolutions.comSelect speakers or Phoneon Webinar tab
  • 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 nostandard 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 systemsAND provide high quality checks & service
  • 5. Best Practices in BackgroundScreeningCore Criminal Package SSN Verification National CriminalDatabase National Sex Offender County Criminal SearchAdditional Solutions BMV Records Federal Criminal Search Employment Credit Report Child Abuse Registry Employment Verifications Character ReferenceChecks eReferenceCheck
  • 6. Due Diligence Negligent Hiring Doctrine: If an employer hires someonethat they either knew or should have known was dangerousor unfit for a position and it was foreseeable that someonecould have be harmed then they could be sued for negligenthiring. It is the "should have known" that creates problemsfor employers. Negligent Retention Doctrine: If employer becomes aware orshould have become aware of problems with an employeewho demonstrated unfitness and employer takes no correctiveaction (investigating, reassignment or termination). It is notenough to just screen new hires. Due diligence must beexercised in an ongoing safe workplace program.
  • 7. 4 Hot Button Areas inBackground Screening
  • 8. #1 “Ban the Box” Removes questions on application concerning criminal history Removes valuable integrity tool for employers who comparescreening 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 by4-1 vote Guidance effectiveimmediately No public comment Game plan for the EEOCfield offices
  • 10. Guidance replaced: 1987 EEOC PolicyStatement regardingconviction records Zero tolerance policies 3 pronged approach 1990 Policy Guidance onthe Consideration of ArrestRecords
  • 11. Commissioner Constance SmithBarker Lone Dissenter… “Utter lack of transparency” “Public has been intentionallyshut out of this process” Places a burden on businessowners Exceeds the authority for aregulatory commission Not congress Not courts
  • 12. Disparate Impact EEOC demonstrates theemployer’s facially neutralpolicy has disparate impact on aprotected group Burden is on employer to showpolicy is: Job related Consistent with business necessity EEOC interested in who isbeing denied based onbackground check
  • 13. Case law… Green v. MO PacificRailroad (1977) Zero tolerance convictions 3 pronged approach El v. SEPTA Murder 40 yrs ago Policy no violence 3rd Circuit Ct in favor ofSEPTA
  • 14. Old Guidance…Employer could demonstrate TitleVII compliance by using 3factors with background checks:1. Nature & gravity of crime;2. Time that has passed sinceconviction/completion ofsentence; and3. Nature of job held or sought
  • 15. New GuidanceNow employers may satisfy Title VIIby using internal policy if it is“narrowly tailored” Not clear what this looks like Guidance references “targetedscreens” based on Green factors (3prongs) Allow applicant/employee toexplain the circumstances of theconviction
  • 16. Guidance list several considerations: Facts & circumstancessurrounding the offense orconduct Self reporting from candidate? How to verify? Evidence candidate performedsame type work, postconviction, with same ordifferent employer with noincidents of criminal conduct Employment or characterreferences
  • 17. Arrest records require furtherinvestigating…. Arrest alone should NOT be usedto deny employment Certain minority groups arrestedat disproportionately higher rates FCRA restricts reporting of arrestrecords to 7 yrs
  • 18. Considerations…. Review criminal background screeningpolicies 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 abackground screening report: Pre-Adverse Action Letter, Copy of Report,Summary of Rights under FCRA Adverse Action Letter
  • 20. Willful Non- Compliance of FCRAHunter, et al v. First TransitInc. Failed to providedisclosures to applicantsBEFORE runningbackground check; Failed to follow two-stepadverse action processwhen denied employment$5.9 Million Settlement
  • 21. Several recent lawsuits for FCRAviolations 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 ViolationsSelection of Screening Firm Critical
  • 22. #4 Social Media Background ChecksBe careful….there can be legal implications: Discrimination- seeing protected information likemarital status, age, race, etc. Privacy- Yes even the internet has a reasonableexpectation of privacy since most sites requirefriending 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 notoperating online under an assumed identity? 21 states have restricted use of social media checks Congress HR 537 would make it illegal to ask forsocial networking & email passwords
  • 24. Questions?Mike McCartyCEOSafe Hiring SolutionsDanville, IN