The iProspectCheck Blog

Lessons from the River for Business Owners and HR Professionals
Posted on: March 13, 2013

Matthew J. Rodgers, President, iprospectcheck.com 

Are you an HR professional or a business owner who utilizes background checks for employment purposes? Does your organization count on you to shield it from expensive lawsuits and unnecessary discussions with regulatory agencies such as the EEOC?

The challenge of keeping up with the ever-changing landscape of emerging risk factors is daunting. Most of us have a mental survival mechanism that creates a quick ranking of the potential risk involved with each new issue that catches our attention . The less we hear about other companies being sued or investigated, the faster we put that issue on the back burner. Maybe that particular issue rises in importance in the future, and maybe it doesn’t.

I have spent a lifetime running businesses and whitewater rivers. Running a complex and dangerous river is similar to meeting a complex and dangerous challenge in the workplace. Rapids on a river just happen with greater speed and frequency and the results of poor planning and execution can be far more dire. We refer to a life threatening swim in a dangerous stretch of river as “Getting Maytagged” because it is like surviving the wash, rinse and spin cycle in a Maytag washing machine. Speaking from experience, it is always better to avoid being Maytagged whenever possible.

I make the following comparison because of the profound similarities between business challenges and river challenges.

At work, you start to hear about other employers that have been penalized or sued for failing to raise the level of attention to an emerging policy issue. As an HR professional or business owner, if you have access to this information and have an ear to the ground then these scenarios become clear signs that it is time to re-assess and make important policy changes.

On the river, you always hear the impending rapid way before you see it. The louder it gets, the more attention and respect it deserves. In most cases, you can paddle to the side of the river, get out of your boat and scout the water ahead. Scouting simply involves climbing up high and looking down on the river allowing you to plan your approach and descent.

Of course there is always the “Read and run” method which ignores scouting in favor of reading the water as you run it, but this can and often does lead to being Maytagged.

With experience, you will develop an ear for the river, just like you acquire a well developed ear for your business. If you are listening and paying attention, you are probably aware of the following recent news stories.

  • Pepsi to pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Findings
  • Kmart Corporation Pays $3 million to settle a class action lawsuit involving claims that it failed to inform 60,000 job applicants that they could be denied employment based on background checks
  • Dollar General’s Use of Criminal Background Checks Faces EEOC Scrutiny

These are just a few examples of large corporations that have in-house legal teams and multiple Human Resources professionals on their payroll and yet they simply did not scout the water. Read and run? $3 Million dollar Maytag.

Would your company or career survive this kind of judgement, scrutiny or penalty?

The only thing better than scouting a rapid is running it with a with a highly experienced, trained and seasoned  River Guide who runs that river professionally.

So the question is, how comfortable are you that your company has effectively scouted the potential risks surrounding :

  • Proper Pre-Authorization by applicants and employees?
  • Individualized Assessment to avoid Title VII Liability? 
  • Pre-Adverse Action and Adverse Action Steps?

The river is getting very, very loud. In addition to these examples there are many attorneys who make their living one client at a time focused exclusively on these specific issues. Can you hear it? Will you attempt to read and run it? Will you scout it? Hire a guide?

You do not need to lie awake at night knowing that this threat to your business is out there and that you may be one phone call away from getting financially and professionally Maytagged.

If you are not certain about your policies and practices surrounding these critical areas and the use of background checks in the employment setting perhaps it is time to address this challenge head-on.

Contact me and I will share with you a path to safety based on the guidance of industry-leading professional legal experts.  Don’t get Maytagged. My company is iprospectcheck.com. We are employment background screening professionals and we know this river!

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Criminal Background Checks Now on the OFCCP’s Radar
Posted on: February 8, 2013

Seyfarth Shaw (02/06/13) Christine Hendrickson

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs has indicated that it will follow U.S. Equal Employment Opportunity Commission guidance regarding pre-employment criminal background checks by issuing Directive 306, “Complying With Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.” The directive states that employers should avoid “policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense,” given the likelihood that they violate federal antidiscrimination law. The OFCCP also implemented the Training and Employment Guidance Letter 31-11, which calls for safeguards to prevent discrimination and the promotion of employment opportunities for individuals with criminal records and those who have served jail time.

Improving Technology to Serve You Better!
Posted on: January 30, 2013

We’ll be conducting server upgrades Saturday February 2nd from 10pm – 8am CDT. During this window we will be moving our systems into the new blade server architecture with the following advantages:

High Density Blade Server Benefits:

Performance
• 20% more performance per watt then standard rack server architectures

Power
• We will be doubling our servers processing power
• We will be increasing the amount of memory on our server by 50%

Scalability
• Easy setup and with remote management
• Quick ramp up time for new services, capacity, and resources

Manageability
• Simplified network infrastructure, power management and cooling
• Hot swappable technology

Network Speeds in partnership with Cisco Systems
• 40GB uplink between blade edge and core switch
• 40X faster than most networks
• Removes network latency in delivering information
• 10GB network
• 10X faster than most networks

This process requires no action on your behalf, and once completed, all services will be restored.

Use iprospectcheck.com for your E-Verify needs, Avoid Costly Mistakes!!
Posted on: January 16, 2013

From the Law Office of Barran Liebman:

On December 3, 2102, an Oregon homecare provider and the U.S. Department of Justice reached a settlement agreement on claims of discrimination in violation of the Immigration and Nationality Act (“INA”). The claims stemmed from the employer’s use of E-Verify to confirm employment eligibility for a new employee. E-Verify is the Internet-based program maintained by U.S. Citizenship and Immigration Services that compares data provided on an individual’s Form I-9 to data in the Department of Homeland Security’s (“DHS”) and Social Security Administration’s (“SSA”) records on the same individual.

In this case, the employer received a “Tentative Nonconfirmation” (“TNC”) notice, which means the data on the Form I-9 for the individual was different from either DHS or SSA records for the individual. In response to the TNC, the employer violated the INA in three ways: First, it failed to provide a copy of the TNC to the employee, which would have presented the employee with an opportunity to contest the mismatched data. Second, the employer demanded the employee produce an alien card or naturalization papers to show proof of employment eligibility; however, an employer is not permitted to request a specific identity document from an employee. Finally, the employer did not allow the employee to start working while contesting the TNC, which is required by the INA. As result, the employer agreed to pay a $1,210 fine, $525 in back wages and to be monitored by the Justice Department for eighteen months.

Are Your Background Checks Made in the USA? Why it Matters.
Posted on: January 2, 2013

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Perhaps the importance of the “Made in the USA” label is rarely more critical than when an employer chooses a company to complete employment background checks.

When applying for employment in the United States the applicant will most likely have a background check completed on them at some point in the hiring process. The employer will order the background check by providing the background checking company with all of the necessary private personally identifiable information for the applicant including name, date of birth, Social Security number, driver’s license number, past employers and schools attended.

Some of the largest US background checking firms allow immediate access to all of this information to offshore service centers which are not bound by US laws regarding privacy protection and identity theft.

Unfortunately, in many cases the employer and the applicant have no idea that the background checking company routinely sends their private personally identifiable information offshore.

Ask your background checking company about offshoring. Make sure that you know where private personally identifiable information goes when you order a background check.

State of South Dakota Increases Court Records Access Fees
Posted on: December 21, 2012

We received notice today from the State of South Dakota  State Court Administrator that the charge for county level records access as well as the charge for state level records access will increase from $15.00 per name to $20.00 per name searched effective January 1, 2013.

The Adverse Action Process and How It Applies to Employment Background Checks
Posted on: December 18, 2012

Proper Adverse Action procedures benefit the employer and the applicant/employee.  By ensuring this process is in place and occurs, the employer will avoid fines, penalties and lawsuits which are occurring at an alarming rate.  The applicant/employee can ensure their information is correct and contest any inaccurate data.  If inaccurate data is on the report, a full investigation is conducted and the report is updated. This is also the law. If your company is not following these procedures, we highly suggest you work with legal counsel to update your policies as soon as possible. Best practices include:

Before a report is requested:

In a document that is separate from the job application, provide the applicant:

  • A clear and conspicuous written disclosure to the applicant/employee that an investigative consumer report may be obtained for employment purposes including the name, address, and telephone number of the agency completing the report.
  • The nature and scope of the requested report.
  • A check box by which the applicant/employee may indicate that he/she wishes to receive a copy of any report that is prepared.
  • A summary of the applicant’s/employee’s rights to view any files the agency maintains on him/her.
  • The employer must provide a summary of the applicant’s/employee’s rights (FCRA version) to the applicant.
  • The employer must obtain written authorization from the applicant/employee.

After a report is received:

  • If the applicant/employee indicated by the checkbox (mentioned above) that he/she wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the applicant/employee within three business days of the date that the report is provided to the recipient. The recipient may contact your company or the agency that completed the report to receive a copy of it. The report shall contain the name, address, and telephone number of the agency who issued the report.
  • The recipient shall use the report only for employment purposes and only for the employer’s own use.
  • If a report contains a notice of address discrepancy, the recipient should employ reasonable policies and procedures to know the identity of the person to whom the report pertains.

Before Adverse Action is taken:

Before taking any adverse action, based at least in part on information obtained from an agency,

  • The employer must supply a “Pre-Adverse Action” notice.
  • The employer must provide the applicant/employee a copy of the report.
  • The employer must provide the applicant/employee with a copy of “A summary your rights under the FCRA”.
  • iprospectcheck.com can automate the Pre-Adverse Action process for you.
  • Login to your user portal to order the Pre-Adverse Action Letter to meet the requirements above.
  • We recommend waiting at minimum five working days before sending your official adverse actions letter to your applicant. This helps ensure enough time is given to your applicant to dispute any discrepancies found on the report.

Adverse Action notices:

Any adverse action under circumstances in which a report regarding the applicant/employee was obtained from an investigative consumer reporting agency, the user of the investigative consumer report shall advise the applicant/employee against whom the adverse action has been taken and supply the applicant/employee a written notice of the adverse action, including

  • A statement of the applicant’s/employee’s right to dispute directly with the agency the accuracy or completeness of any information provided by the agency.
  • Provide notice of the adverse action to the consumer.
  • Provide the consumer with contact information for the CRA that prepared the report.
  • Provide the consumer with “A summary of rights under the FCRA.”

 Do you currently have a compliant Adverse Action program?

With our Automated Adverse Action program in place you will have taken a big step toward eliminating a looming potential legal liability that is created when you make the decision NOT to hire someone based even partially on information contained in their background check.

Our program is inexpensive, comprehensive and very easy to use. Contact iprospectcheck.com and learn how we can simplify compliance for you.

The FCRA and Background Checks
Posted on: December 17, 2012

When an employer uses a third party (a Consumer Reporting Agency) to conduct background checks the information compiled and reported to the employer by the Consumer Reporting Agency is considered a Consumer Report.

The Fair Credit Reporting Act is the federal legislation that sets specific rules and requirements for the use of consumer reports in the employment setting.

Historically the jurisdiction of the Federal Trade Commission, it appears that the newly formed Consumer Finance Protection Bureau will also have a role issuing new rules under the FCRA in the future.

Individual states and even many municipalities may have additional rules that impact the use of consumer reports.

Bottom line?

Background checks are an excellent and cost effective way support your efforts to exercise due diligence and avoid negligent hiring claims.

When using background checks in the employment setting you must follow the letter of the law to avoid creating one type of liability while attempting to mitigate another!

Over the next few days we will examine the FCRA and provide you with simple steps that will help you to examine your current practices and make any necessary changes to insure compliance.

3 Key Steps For Considering Arrest Records When Making Employment Decisions
Posted on: December 14, 2012

While many jurisdictions allow the reporting of arrest records to be included as a part of an employment background check some states and municipalities restrict them entirely. An arrest record is simply the report of the arrest of an individual without further disposition information.

Guidance from the EEOC states that an employer can not use arrest records alone to deny or terminate employment.  

However, EEOC guidance does permit employment decisions to be made based upon the conduct underlying the arrest.

Following these 3 steps will help you remain compliant: 

  1. The employer must determine that the underlying conduct may be relevant to and may make the candidate unfit for the position.
  2. Conduct an individualized assessment and take the three Green Factors into careful consideration.
  3. The employer can then make a decision and hire/promote/retain the candidate or move forward with the proper adverse action notifications.

These three steps can help you comply with the FCRA and relevant EEOC guidance. If you do not have policies in place to support this type of decision making process consult legal counsel and always build your foundation on solid best practices.

Marijuana Law and Employment Drug Testing
Posted on: December 13, 2012

Washington and Colorado have now passed laws making marijuana legal for recreational use and if history is any indicator of future trends there will most likely be a number of states that follow this path in the years ahead. Please bear in mind as you read this that marijuana is still illegal for any reason at the federal level.

Where do these changes leave employers in Colorado and Washington State who utilize drug screening as a tool to maintain a drug free workplace?

The majority of employers who utilize drug screening are doing so because of industry or federal mandates, such as employers in the healthcare, transportation, aviation, and other similar industries.

Even without industry or government mandates, employers who have drug screening policies in place are generally making no change to their practices to accommodate these new state laws.

It would appear that as long as marijuana is illegal at the federal level drug testing policies for many employers will remain largely unchanged.