what every employer needs to know about background check compiance

TalentTakeawayswebinar & podcast series

What Every

Employer Needs to

Know About

Background Check Compliance

AGENDAThe Series


Talent Takeaways Series

AGENDAThe Sponsor


AGENDA

Brian SharpChief Marketing Officer , HRsoft

Vu T. Do, CCEP, LPIVP Compliance, PreCheck

Our Presenters


Content Overview


FCRA Compliance Requirements

Employers' Responsibilities Under the EEOC Enforcement

Guidance

How the "Ban the Box" Movement

May Affect You

Compliant Use of Credit Checks

FCRA Terminology


Federal Fair Credit Reporting Act

FTC & CFPB: Rulemaking, enforcement, interpretation

TerminologyConsumer report

End-user (employer)

Consumer Reporting Agency

(background check company)Consumer (subject of report)

FCRA Compliance Requirements


Duties of End-Users – “Notice to Users of Consumer Reports”

Permissible Purpose

Disclosure & Consent

Certification to CRA

Adverse Action

Permissible Purpose


Employment is broadly construedPre-employment hiring

Retention: re-assignment, transfer, promotion, etc.

Non-traditional: volunteers,

contractors, staffing firm placements,

appointed physicians, etc.

Disclosure & Authorization


Make proper disclosure to and obtain consent from consumer

prior to procuring a report

Disclosure must be a separate document

Evergreen language

Internal employee investigations exception

Employer Disclosure Lawsuits & Settlements


Kmart $3 million

Domino’s Pizza $2.5 million

Swift Transportation Corporation $4.4 million

Dollar General $4 million

Publix Stores $6.8 million

End-User Certification


When requesting a report from a CRA,

user must certify:

Permissible Purpose

Proper Disclosure madeConsent obtained

Compliance w/ federal & state laws

Compliance w/ adverse action duties

Adverse Action Responsibilities


Before taking adverse action based on contents of consumer report,

user must first:

Send the following documents to the consumer:

Pre-adverse action notice

Copy of consumer report

Summary of Rights under the FCRA

Do not orally rescind offer, explain application is “under review”

Wait 5 days, allow consumer time to dispute

Send written Adverse Action notice

FCRA End-User Takeaways


Duties of End-users:

Permissible employment purposeMake a proper disclosure

Obtain written consent

Make certification to CRA

Adverse Action responsibilities

EEOC Enforcement Guidance


Released April 25, 2012

Committed to removing discriminatory

barriers to employment

EEOC’s Position on Employment Background Checks:Disparate treatment vs. Disparate impact

Disproportionate rates of arrest and incarceration of African-

American and Hispanic males

Job relatedness and business necessity

The Commission continues to scrutinize employers’ screening practices

The Green Factors


When reviewing criminal convictions, consider:Nature and gravity of the offense

Time that has passed since the offense

Relation of the offense to position sought or held

What are the facts surrounding the offense?

Number of convictions?

Evidence of work stability pre and

post conviction?

Rehabilitation efforts

Employer Best Practices


No policies with blanket exclusions

Title VII training for decision makers

Develop a narrowly tailored policy

Maintain robust documentation

Don’t ask about criminal history on the employment

application

Perform Individualized AssessmentsCreate forum for dialogue

Additional documentation or materialsOpportunity to dispute or clarify

Ban the Box


Refers to legislation or city ordinances that prohibit inquiry into

an individual’s criminal history during the employment

application process

Currently, more than 100 state and local governments have

enacted ban-the-box measures

Understand the provisions of ban-the-box legislation in your

state, city, or county, if they exist

Ban the Box


Ban-the-box measures apply to mostly public

employers

Increased trend where laws passed by states (e.g. MN,

MA, RI, NJ)and cities affect private employers

National Employment Law Project (NELP)

Complications for employers

in multiple locations

Compliant Use of Credit Checks


State legislation restricting employers’ use of credit checks in

hiring (CA, CO, CT, HI, IL, MD, NV, OR, VT, WA)

Policy on Credit Checks should mirror state laws with current

restrictions, ongoing trend

Required for position sought?

Know how to interpret and treat credit

report results

Provide a forum for dialogue with applicant

if adverse information exists

Key Takeaways


Develop a thoughtful and written background check program

Give applicants/employees a voice before making a final

decision

Know your legal duties under the FCRA when using background

check reports

Resources


The Leading Healthcare

Background Screening Service

PreCheck.com

Resources


A Better, Smarter & Faster Way to Hire Engaged Employees

RECRUITview™Recruitment Management Software

Answer Questions

Share Resources

Demo Day

Resources & Support



What Every

Employer Needs to

Know About

Background Check Compliance

what every employer needs to know about background check compiance

Recruiting & HR