NY City Enacts Ordinance Banning Use of Credit Reports by Some Employers
Posted on: May 29, 2015
Thanks to Larry Henry and Mike Sankey for bring this to our attention. As always, consult with legal counsel to learn how this may impact policy for your company:
New York City Places
Restriction on Use of Credit Reports
On May 6, 2015 the Mayor of New York City, Bill de Blasio, signed Enactment: 2015/037, banning the use of credit reports by some employers. This ordinance will go into effect on or about September 3, 2015. The ordinance contains numerous and complicated exceptions, some of which require a familiarity with the functions of New York City government. Here are the exceptions to the prohibition:
1. Employers, or agents thereof, that are required by state or federal law or regulation to obtain a credit report.
2. Self-regulatory organizations under §3(a)(26) of the Security Exchange Act of 1934.
3. Peace officers:
o as defined in subdivisions 33 & 35 of section 1.20 of criminal procedure law;
o position with law enforcement;
o position with investigative function at the city Department of Investigation
4. Those governmental appointed positions in New York City that have a “high degree of public trust” as defined by commission.
5. Positions required to be bonded under local, state or federal law.
6. Positions requiring a security clearance under any state or federal law.
7. Non-clerical, position having access to: trade secrets1, intelligence information2 or national security information3. These terms are defined: trade secrets relate to private employees (does not include access to customer/mailing lists); the latter two relate more to governmental positions but will cover some private employer positions.
8. An employee having signatory authority over third party funds or assets of $10,000 or more.
9. An employee having authority to enter into financial agreements on behalf of the employer for over $10,000.
10. Positions that allow employee to modify digital security systems.
11. Persons required by §12.110 of the New York City code to provide disclosures relating to conflicts of interest.
Some of these exceptions are very technical and specific to a limited number of positions. CRAs doing business in New York City, especially with New York City will need to consult with local counsel to be able to identify positions that are exempt from this city ordinance.
The term”trade secrets” means information that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (c) can reasonably be said to be the end product of significant innovation. The term “trade secrets” does not include general proprietary company information such as handbooks and policies. The term “regular access to trade secrets” does not include access to or the use of client, customer or mailing lists.
The term”intelligence information” means records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.
The term”national security information” means any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.
A copy of the law (Int 0261-2014) may be viewed at:
2015 Top 5 Trends for Background Checks
Posted on: January 22, 2015
Welcome 2015! Last year was a progressive year for compliant employment background checks. With all the technological advancements and different compliance and regulatory issues that stirred up 2014, we will attempt to break down the Top 5 trends for Compliant Background Checks, and how it will affect employment screening service clients in general for this year:
The ‘Ban the Box’ Movement
Posted on: January 16, 2015
An historically common practice of employers is to include an inquiry regarding criminal history, or past felony conviction, on the job application as a fill-in-the-blank “yes” or “no” question. Due to the constant evolution and amendment of pre-employment laws and compliant background checking practices, though, some believe that this procedure may be due greater scrutiny.
Currently, there is a trend known as the “Ban the Box” movement that is pushing employers away from this practice, and instead offers a much more personal and case-by-case basis of analysis of an applicant’s arrest and conviction history.
New Disclosure and Authorization Documents for 2015
Posted on: January 15, 2015
Have you reviewed your Authorization and Disclosure document for compliance recently? Working with top legal counsel we have developed revised and updated documents for our clients. Call or email and we will get you up to speed.
Fair Credit Reporting Act and Employment Background Checks
Posted on: December 16, 2014
In this article we will continue to look at the different requirements that the FCRA imposes on users of background checks in the employment setting and the rising tide of litigation surrounding the use of employment background checks without proper compliance procedures in place.
Specifically, we will focus on the rules an employer must follow when considering taking adverse action against a candidate or employee based even partly on information contained in employment background checks. Failing to follow proper adverse action procedures has become a top target for class action litigation.
The Pre-adverse Action notification requires that before making the final decision the employer must:
- Provide notice to the candidate that they have received a background check that contains information potentially disqualifying them from the position in question.
- Provide the applicant a copy of the report itself.
- Provide the applicant a copy of the “Summary of Consumer Rights under the FCRA.”
- Along with the Pre-Adverse action notification, the candidate must be provided with the name, address, and telephone number of the consumer reporting agency that procured the background report, as well as a statement notifying the candidate that the consumer reporting agency did not make the decision to take adverse action and is unable to provide reasons or information pertaining to the action itself.
The candidate may dispute the information provided by the consumer reporting agency allowing for any misreported, outdated, or otherwise incorrect data to be corrected.
The Adverse Action notification can begin after a “reasonable amount of time” has passed from the initial notification, and must:
- Be accompanied by a copy of the background report.
- Include a copy of the “Summary of Your Rights under the FCRA.”
- Must include a notification that the candidate is being disqualified from potential employment based on the results of employment background checks.
Ensuring that your company is completely FCRA compliant can generally be accomplished by working closely with a quality employment screening provider (consumer reporting agency) and competent legal counsel. Many consumer reporting agencies have comprehensive and tested programs already in place to accommodate their clients’ adverse action procedures.
About the Author:
Matthew J. Rodgers, PHR is the President of iprospectcheck.com, a background screening company that specializes in fast, accurate, compliant and affordable screening solutions for employers.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Verified Test – a drug test result or validity testing result from a certified lab.
- 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:
- Disclosure should be clear and in writing in a document that consists of the disclosure only.
- 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.
- 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.
- 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.