California Prop 47 Impacts LiveScan Background Check
Posted on: January 29, 2016
On November 14 of 2014, California voters approved Prop 47 which, among other things, required the reclassification of the following THEFT and DRUG RELATED crimes from felonies to misdemeanors:
Receiving/Concealing Stolen Property (value not to exceed $950)
Simple Possession of Heroin, Cocaine, Listed Controlled Substances
Simple Possession of Concentrated Cannabis, Methamphetamine, Ecstasy
Simple Possession of the “Date Rape Drug” GHB
In response to this legislation, the Los Angeles County Sheriff’s Department and many others around the state have been effectively citing and releasing these offenders back into the community while awaiting their court date. While this is troubling for many reasons, the Sheriff’s Department has cited two major concerns. First, these individuals may continue to commit additional crimes while waiting for their court date and second, the jail population will eventually increase as the cases are adjudicated.
To add to the concerns of law enforcement, employers who are required by the State of California to utilize the Live Scan system to background check potential employees should be aware of another potential implication. When law enforcement cites and releases an offender who has not had their fingerprints collected, the Live Scan process may very well fail to identify these individuals with convictions because the Live Scan system relies on the fingerprints of the applicant to search for records.
According to the Attorney General’s website for the State of California: “The California Department of Justice (DOJ) is mandated to maintain the statewide criminal record repository for the State of California. In this capacity, sheriff, police and probation departments, district attorney offices, and courts submit arrest and corresponding disposition information. The DOJ uses this information to compile records of arrest and prosecution, known as “RAP sheets,” for individuals and disseminates the information for law enforcement and regulatory (employment and licensing) purposes. RAP sheets are based upon fingerprint submissions, and therefore positively identified biometrically; a process by which a person’s unique identity is confirmed.”
Interestingly enough, a potentially unintended consequence of Prop 47 may be the reduction of the reliability of a Live Scan background check. In the Prop 47 era, a caregiver who was hired to care for your elderly parent or vulnerable child may have been convicted of Grand Theft, Possession of Methamphetamine, or Check Forgery and cleared for work inside your home or long term care facility by the State of California.
As an employer, you may find it indispensable to utilize a private background checking company in addition to Live Scan in a good faith effort to meet the due diligence requirement in the hiring and management of employees who will be trusted with the care and safety of others. A private background checking company will rely on completely different methods to obtain records and will report their findings to you quickly and inexpensively allowing you to make better informed decisions.
Matthew J. Rodgers, PHR
Advanced FCRA Certified Expert
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.
Gold Standard or Fool’s Gold?Posted on: August 1, 2013
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!
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
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.