Monthly Archives: November 2014

Employment Background Check Vocabulary
Posted on: November 24, 2014

We know that hiring trustworthy and honest personnel is a priority for you and your company, thus a complete and accurate employment background check for all potential candidates is essential. Like any other industry, the background check industry has many different vocabulary terms that not many may be familiar with.  We have compiled the most used terms so that the next time you hear them, you will know exactly what they mean.

A

  • Adjudication – automating a judgment based on the outcome of a background screening. The judgment usually results in “meets requirements” or “does not meet requirements.”
  • Adjudication Guilty – conviction – having found the defendant guilty of the charges.
  • Adjudication Withheld – Non-conviction – this means that the court does not give a final judgment regarding a case. Probation or another type of community service is given to the defendant. .
  • Adulterated Specimen – A specimen that contains a substance that should not be present in human urine.
  • Applicant Tracking System – also known as ATS; it is any system that manages both an organization’s job posting and data collection process to match candidates to positions.
  • ARD Program – Non-conviction – stands for Accelerated Rehabilitative Disposition Program. This program is giving to defendants in place of adjudication.

B

  • Ball / Bon Forfeiture – Non-conviction – happens when there is not enough evidence to convict and the charges against the defendant are dropped.
  • Blind Specimen – a specimen submitted to a laboratory for quality control testing purposes so that the laboratory can’t distinguish it from an employee specimen.

C

  • Cancelled Test – a drug or alcohol test that has a problem that can’t be corrected. A cancelled test is neither a positive or negative test.
  • Chain of Custody – a procedure used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed.
  • Collection Site – a place where the employee presents himself or herself to provide a urine specimen for a drug test.
  • Conditional Discharge – Non-conviction – finding the defendant not guilty. The court will discharge her or him from trial on special conditions that he or she must follow.
  • Confirmation Drug Test – a second procedure implemented on a urine specimen to determine and quantify the existence of a particular drug.
  • Confirmation Validity Test – a second test implemented on a urine specimen to further aid a validity test result.
  • Confirmed Drug Test – a confirmation test result received by a MRO from a laboratory.
  • Consent Decree – Conviction – designed for juvenile cases where the defendant pleads guilty and is placed under probation for six months.
  • Consortium / Third party administrator – this is also known as C/TPA. It is a service agent that coordinates the provision of a variety of drug and alcohol testing to employers.
  • Consumer reporting Agency – also known as CRA, it is a bureau that collects and provides information about individuals to creditors, employers and landlords.
  • Cost-per-hire – a common measure used in human resources. It is used to evaluate costs acquired in hiring new employees.

  • Dead Docket – Non-conviction – means that there is not enough evidence to show that the defendant is guilty or innocent. The case is set aside.
  • Deferred Adjudication / Judgment – Non-conviction – the defendant is not found guilty. If the defendant complies with the conditions given to him or her then the case is dismissed.
  • Dilute Specimen – a specimen with creatinine and specific gravity values that is lower than expected for human urine.

E

  • Equal Employment Opportunity – a system of employment proceedings regulated by the EEOC under which individuals are not excluded from any participation, advancements, or benefits due to race, color, religion, sex, national origin, or any other action that cannot lawfully be the basis for employment action.
  • Equal Employment Opportunity Commission – the federal agency responsible for statues that prohibit discrimination, etc.
  • eRecruiting – recruiting methods that take place online.
  • Extended Workforce – the portion of a company’s workforce made up of temporary employees, vendors and independent contractors.

  • Fair Credit Reporting Act – also referred to as the FCRA, it is designed to protect individuals. Companies that perform pre-employment screening services are governed by the FCRA, as are the employers that use background-screening services.
  • Form I9 – a Federal form required of all appointees to verify US citizenship or legal residency.

  • Guilty in Absentia – Conviction – the jury found the defendant guilty without them having appeared in court.

  • HR-XML – an operating language established by volunteers of the human resources community who agree to use simple definitions to ease automatized transfer of all HR related data between organizations.

  • Ignored – Non-conviction – this happens when the case never went to trial and was ignored by the state.

  • Management Reports – reports that reflect pre-screening report activity.
  • Medical Review Officer – or MRO, is a licensed physician who is responsible for receiving and reviewing lab results generated by an employer’s drug testing program.
  • Misdemeanor Intervention Program – Non-conviction – a program designed only for misdemeanor offenses where the defendant complies with the conditions to avoid conviction.

  • No Papered – Non-conviction – when the paperwork was never sent to the court by the District Attorney and never filed.
  • Nolle Prosse – Non-conviction – Latin for “not prosecuted,” meaning there was not enough evidence to convict.
  • Nolo Contendre – conviction – Latin for “no content,” meaning that the defendant pled no contest t o the charges, therefore the court finds them guilty.

  • Other – Non-conviction – the defendant is given special provisions for one year to abide since this is his or her first offense. Case is closed if no violation occurs during that year.

  • Prayer for Judgment – Non-conviction – the state will not prosecute.
  • Pre-employment screening – includes background screening, drug screening, skills assessment and behavioral assessment.
  • Pre-integrated – used for integrated software solutions that have been jointly developed, built, tested and proven prior to being released to the public.
  • Pre-trial Intervention / Diversion – Non-conviction – a program the defendant is placed in prior to going to trial. If the defendant follows the program before the trial time, the trial is not held and the defendant is not convicted.
  • Primary Specimen – in drug testing, the urine specimen bottle that is opened and tested first id called the primary specimen.
  • Process Other – Non-conviction – the defendant was not charged on a count due to being charged for another count.

  • Rejected – Non-conviction – the case did not go to trial because the state rejected the hearing of the case.
  • Responsible – Non-conviction – when a defendant is not found in guilt but must pay the fines or fees of the crime.

S

  • Stet Docket – Non-conviction – will not prosecute at this time. The case is eligible to be reopened after one year if a violation is committed during that time.
  • Stricken Off Leave – Non-conviction – happens when the case has been stricken off docket with the ability to reinstate at a later date if deemed that the case can be prosecuted.
  • Substituted Specimen – a specimen with creatinine and specific gravity values that are so diluted that they are inconsistent with human urine.

T

  • Time-to-hire – a common phrase used in human resources to measure the time it takes to fill an open position. Normally measured from the point the job request is submitted to when the new employee walks in the door.

V

  • Verified Test – a drug test result or validity testing result from a certified lab.

W

  • Waived – Conviction – it means that the defendant has waived his or her rights to trial and has pled guilty.

Fair Credit Reporting Act and Employment Background Checks (Disclosure and Consent)
Posted on: November 17, 2014

Preliminarily Approved $6.8 million Settlement Due to Small Error on Disclosure Form

The Fair Credit Reporting Act applies not only to credit reports, but to employment background checks as well. As we have seen from recent class action filing trends, this is proving to be an area for employers that is worthy greater clarity and focus.

To accommodate this, over the course of the next few weeks we will look more closely at how employers can successfully navigate each of the critical components of this potential litigation minefield.

This article will focus specifically on one critical step in the background screening process: FCRA compliant background check consent and Authorization.

Earlier this year, Publix Super Markets Inc. was confronted with a class action lawsuit resulting in the preliminary approval of a $6.8 million settlement due to the wording used on their pre-employment background report authorization and consent form. To be precise, Publix Super Markets Inc. made the mistake of including a statement of waiver of liability on said form. According to the FCRA, consent and authorization forms MUST include “stand alone” disclosure.

The phrase “stand alone” demands that the form ensure applicants are aware of the employer’s intention to procure a background check, and that clear and conspicuous disclosure of this fact must be made in writing in a document that consists solely of this disclosure to the applicant/employee before a report is procured or ordered to be procured.

So what does this mean? Consent and Authorization forms used for pre-employment or continued employment background screening may ONLY consist of a statement of intention to procure a background check, and an authorization section for the applicant/employee to authorize this procedure.

Absolutely no extraneous information (such as purported release of liability, statement of ineligibility for employment if no consent is given, etc.) may be included on the form.

It is a safe assumption that full compliance with FCRA rules and regulations is no easy task, as disclosure wording is not the only potentially problematic detail in the statute. The important steps in ensuring compliance with the FCRA as it relates to consent and authorization are as follows:

  1. Disclosure should be clear and in writing in a document that consists of the disclosure only.
  2. Disclosure should NOT be a part of a printed employment application, but may include a blanket disclosure permitting consumer reports for the duration of employment.
  3. Authorization must be obtained before procuring or ordering a consumer report, and may be included with the disclosure document, and may include a blanket authorization covering the duration of employment.
  4. There are NO prohibitions by the FCRA from an employer taking adverse action against an applicant who refuses to provide background check authorization.

One option being recommended to employers and HR managers to remain compliant is to simply separate the consent and authorization forms all together, and have completely separate documentation diverting all extraneous information or notification to a different consent form.

The best and most effective approach to avoiding a costly lawsuit remains consulting competent, experienced legal counsel on each aspect of FCRA Compliance before conducting background checks.

 

 

Lebowitz, Todd. “Publix to Pay $6.8 Million Settlement over Noncompliant Background Check Forms.” Lexology. 3 Nov. 2014. Web. 7 Nov. 2014.

Jodka, Sara. “The FCRA Is the New FLSA.” Employer Law Report. Porter Wright Morris & Aurthur, 3 Nov. 2014. Web. 7 Nov. 2014.


 

About the Author:

My name is Matthew J. Rodgers and I am the President of iprospectcheck.com, a background screening company that specializes in fast, accurate, compliant and affordable screening solutions for employers. If you found this article useful or informative, please share it and subscribe to my blog. I am not a lawyer, so if you need specific legal advice please use appropriate counsel. The views expressed herein are solely my own.

You can reach out to me at matt@iprospectcheck.com, or by visiting our website at www.iprospectcheck.com to learn more.

 

 

Happy Veterans Day…today and everyday we honor all the men & women who have selflessly served our country…Thank You!
Posted on: November 11, 2014

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