Webinar: “Why You Should Screen Your Workplace and How To Do It Lawfully"

Here is the link to the recorded webinar from yesterday: 

“Why You Should Screen Your Workplace and How To Do It Lawfully”, presented by Rod M. Fliegel, Co-Chair, Privacy and Background Checks Practice Group and Jennifer L. Mora, Shareholder, Employment & Labor Law Solutions Worldwide. 

Some of the topics covered:

•         Negligent hiring claims
•         Problems with doing it without a CRA
•         Complying with the FCRA
•         Ban the box and other state/local issues
•         How companies fail for not running background checks

SmartRecruiters Announces Talent Acquisition Platform Winter 2017 Product Release

SmartRecruiters, the Hiring Success Company, recently announced it's new product that is set to release in Winter 2017. This new product will allow for a partnership integration with Aurico to expand SmartRecruiters' background and drug testing capabilities.

Click here to read the full press release.  

Big Data

Another exciting move we witnessed in 2016 is the increase in use of “big data” to streamline hiring decisions as well as evaluate hiring trends, and is very useful to employers in many aspects.  “Big data is the process of examining large data sets containing a variety of data types -- i.e., big data -- to uncover hidden patterns, unknown correlations, market trends, customer preferences and other useful business information.

Big Data was recognized during a EEO panel by EEOC and The Chair of the EEOC, Jenny R. Yang said in a press release “Use of Big Data Has Implications for Equal Employment Opportunity” as having “the potential to drive innovations that reduce bias in employment decisions”.  Jenny also cautioned that Big Data tools “are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity”.  Aurico and CareerBuilder embrace the use of “Big Data” for driving innovations in all aspects of the hiring process, including predictive or talent analytics and to augment fair and unbiased decisions.

- Source: U.S. Equal Employment Opportunity Commission

Aurico Named No. 2 on HRO Today Magazine’s 2016 Baker’s Dozen List of Top Background Screening Providers

Aurico, a CareerBuilder company, announced it has been named one of the nation’s top 13 employment screening providers on HRO (Human Resource Outsourcing) Today magazine’s 2016 Baker’s Dozen list. This recognition marks the fifth appearance on the list for Aurico.

“At Aurico, nothing is more important to us than our clients. It is extremely gratifying to get confirmation from them that we are not just meeting, but exceeding their background screening needs,” said Ben Goldberg, CEO of Aurico. “We strive to provide our clients with the best user experience and the most compliant and accurate service. Having our customers acknowledge our commitment to trust for employers and applicants is an honor.”

To achieve inclusion on the Baker’s Dozen list, companies that provide background checks are rated anonymously by their clients during an online survey process. HRO Today calculates the results using a statistical analysis and predetermined algorithm. The award is based on three categories: breadth of service, size of deal and quality of service.

NAPBS Volunteer of the Month

Congratulations and thanks to Laura Randazzo, the NAPBS Volunteer of the Month.

Volunteers play a vital role within NAPBS, working alongside staff members and other volunteers to jointly achieve the association's goals. Through our Volunteer Recognition Program, we highlight the contributions of our volunteer workforce.

Laura Randazzo, VP of Compliance with Aurico - a CareerBuilder company, has been selected as the December 2016 NAPBS Volunteer of the Month. Randazzo is currently serving on the BSCC, Finance and Advocacy Committees. Learn more about Randazzo in this interview.

Know someone in the NAPBS community who deserves special recognition for their dedicated volunteering efforts? Nominate your favorite volunteer as Volunteer of the Month. Nominees should have made a significant and outstanding contribution to the NAPBS community. Submit nominations to volunteer@napbs.com and provide the volunteer's name, company, details regarding their volunteer accomplishments, and why you think they should be recognized.

Aurico Webinar: Managing Changes to the Form I-9

Recently, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. U.S. Citizenship and Immigration Services (USCIS). By Jan. 22, 2017, employers must only use the new Form I-9 (on new employees.) To ensure compliance with USCIS, Aurico has made the new Form I-9 available for all clients and partners in the Customer Forms Library within the WebACE™ Platform.The old version of the Form I-9, which expired on March 31, 2016, may still be used until January 21, 2017.

Aurico hosted a Webinar on November 17, 2016 titled Managing Changes to the New Form I-9 to provide education on the Form I-9 process.  Aurico provides electronic I-9 and E-Verify products. The electronic I-9 product through Aurico will accommodate the new form I-9 on or before January 21, 2017.

New Jersey Clarifies Their "Ban the Box" Ordinance

The act became effective in March, 2015. 

The regulations¹ clarify certain key aspects of the Act as listed below:

• Employers of 15 or More Employees Are Covered: The Act applies to employers who employ 15 or more employees, regardless where those employees are actually located.  The 15 employees do not all have to be in New Jersey.
• Use of Multi-State Forms Is Permitted: Multi-state employers who use uniform employment applications and forms in multiple jurisdictions may include a question regarding criminal records on an employment application, so long as immediately before the question there is a statement that “an applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question” until after the first interview.  This requirement is the stark opposite of the recent requirements in New York City and Philadelphia that effectively prohibit multi-state forms with state-specific carve-outs like the one permitted here.  
• “Interview”: Since employers are prohibited from inquiring into an applicant’s criminal record until after the first interview, the regulations clarify that an “interview” means “any live, direct contact by the employer with the applicant, whether in person, by telephone, or by video conferencing, to discuss the employment being sought or the applicant’s qualifications.” It does not mean solely “the exchange of e-mails or the completion of a written or electronic questionnaire.”
• Internet Searches Are Prohibited:

The City of Philadelphia Expands Their "Ban the Box" Law

On December 15, 2015, Philadelphia Mayor Michael Nutter amended the city’s current “ban the box” law Fair Criminal Records Screening Standard§ 9-3504 to expand the number of employers it covers and increase restrictions on the use of criminal background checks during the hiring process. The amendments take effect in just 90 days from December 15, 2014 and make several noteworthy changes to the city’s original Fair Criminal Screening Standards Ordinance enacted in 2012.

Here are some highlights. 

Inquiry into criminal background - post offer of employment.

Employer can only consider convictions within the last seven years (or release from confinement).

If applicant is rejected he/she must be advised as to why and be provided a copy of the record

The employer shall allow the applicant ten (10) business days to provide evidence of the inaccuracy of the information or to provide an explanation.

The following is a detailed list of the terms within the act. 

(1) In connection with the licensing or employment of any person, it shall be an unlawful discriminatory practice for a City agency or private employer to make any inquiry regarding or to require any person to disclose or reveal any criminal convictions during the application process. The application process shall begin when the applicant inquires about the employment being sought and shall end when an employer has [accepted an employment application] extended a conditional offer of employment to the applicant. The inquiry prohibited by this Section shall include any question regarding the applicant’s willingness to submit to a background check.

New York City Issues Guidelines on Credit Restriction Regulation

New York City issues interpretative guidelines on their credit restriction law “Stop Credit Discrimination Employment Act”. New York City employers should review these guidelines :

NOTE: Portions of this guide will be subject to future rulemaking pursuant to the City Administrative Procedure Act, N.Y. City Charter § 1041 et seq.

The New York City Human Rights Law (hereinafter the “NYCHRL”) prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based policing by law enforcement.

The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”1

National Labor Relations Board Decision on Browning-Ferris

Will the National Labor Relations Board Decision on Joint-Employer Status (Board Decision on Browning-Ferris Industries of California) change the test on joint employer relationships? 

The National Labor Relations Board (NLRB) issued a much awaited decision on August 27, 2015 on the Browning-Ferris Industries of California case that greatly broadens the definition of who is a joint employer.  NLRB’s decision on the newly expanded test held that two or more, otherwise unrelated employers, may be found to be a joint employer of the same employees under the NLRA (Act), if they share or co-determine those matters governing the essential terms and conditions of employment. In determining whether a putative joint employer meets the standard, the initial inquiry is whether there is a common-law employment relationship with the employees in question.  If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses sufficient control over employee’s essential terms and conditions of employment to permit meaningful collective bargaining.  This decision affects both unionized and non-union companies and even entities that have no employees on their own.  The decision has broad implications for other employment laws and governmental agencies such as the DOL, EEOC and OSHA.  

Who May Be Impacted?

Dynamic Reporting Tool Analytics Drive Results

“As we work with customers to maintain regulatory compliance, the message always seems to revolve around reporting tools,” says Laura Randazzo, Vice President of Compliance with Aurico Reports, Inc. “HR professionals want evidence of EEOC individualized assessments, proof of adherence consistency with compliance policies, and global adverse action history. They want to be able to effectively report background screening metrics during the ultimate challenge from a regulatory agency’s audit.”

The capture of talent acquisition data is fundamental to talent acquisition performance and productivity. It is key to making hiring decisions that mitigate corporate risk and drive operational success. The five reporting tool essentials include:

Federal Trade Commission Industry Focus

During the NAPBS Mid-Year Regulatory Conference, Maneesha Mithal, from the Federal Trade Commission (FTC) spoke about its focus on data protection, and compliance with the Fair Credit Reporting Act (FCRA). The FTC will expect Consumer Reporting Agencies (CRAs) like Aurico, to maintain strict procedures for accuracy and adverse action re-investigation, and vetting end-user clients for the appropriate permissible purpose and data protection. 

New York City Council Passes a Bill Restricting Credit Checks For Employment Purposes

The New York City Council passed a bill on April 16, 2015 restricting employers from using credit reports for employment purposes. This bill amends the New York City Human Rights Law, making it unlawful for an employer to use an individual's consumer credit history in making employment decisions. The bill's protections extend beyond the hiring process to current employees by prohibiting employers from considering consumer credit history broadly with regard to "compensation, or the terms, conditions or privileges of employment."

New York City becomes the 12th State to pass a credit restriction bill, joining California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington, and the City of Chicago.

Negligent Hiring Risk and Motor Vehicle Records

We frequently get calls to re-verify current employee motor vehicle records or driver’s history reports. We continue to see a growing trend for HR departments to add annual re-verification to their risk management strategy.

Since 23% of applicants have had serious motor vehicle violations due to drugs, alcohol or revoked licenses, we suggest that our clients complete motor vehicle records searches on prospective employees and annually with current employees. Without this search and annual re-verification program, companies can be left open to negligent hiring litigation risk.

Negligent hiring is a claim made by an injured party against an employer, based on the theory that the employer knew or should have known about the employee’s background, which would have indicated a dangerous or untrustworthy character. 

Recent EEOC Judgment: Compliance Update

On Friday, February 20, a panel of judges from the United States Court of Appeals for the Fourth Circuit, challenged the EEOC in a case involving an employer’s use of both a credit check and criminal background check during its hiring process. The lower court dismissed the case, and the appeals court agreed, noting that the EEOC’s statistics expert was “utterly unreliable” and “made a mind-boggling number of errors.” Remarkably, the court rebuked the EEOC’s continued use of this expert (who has been found to be biased in earlier cases) as not serving the public interest well.” ¹

This case is important because the EEOC’s enforcement position on the use of background checks rests almost exclusively on statistics. If the EEOC is willing to rely upon a biased manipulation of statistics, it is hard to imagine how an employer will get a fair shake during the charge process. This case may be a call for changes to the EEOC’s aggressive position on background checks. Thus far, one might say the EEOC has had little success on these types of claims and might need to reconsider its strategy.

¹http://www.hr-headaches.com/wp-content/uploads/sites/5/2015/02/freeman.pdf

NEW MEXICO EXPANDING BAN THE BOX

The New Mexico Senate has proposed Bill 583 to expand the Ban the Box prohibition to private employer initial applications. After initial applications, there would be no constraints on asking questions about criminal history and doing criminal background checks.

New Mexico joins other states/cities that have initiated ban the box for all employers. Aurico recommends, as a best practice, to eliminate the criminal question from your job applications and ask about criminal history later in the hiring process.  

I-9 NEWS: DACA AND DAPA EXPANSIONS IMPACT EMPLOYERS

In November 2014, President Obama announced the expansion of two similar immigration acts: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA). Each act has been modified to allow more people to benefit from their protections. DAPA has implications for all employers while DACA continues to impact hiring managers who seek younger employees. The DACA expansion went into effect 90 days after the President's announcement, while DAPA will be expanded 180 days following his executive action decision.

Candidates may qualify for DACA if:

• They entered the US prior to their 16th birthday
• Have lived in the country continuously since June 15, 2007
• Were under the age of 31 as of June 15, 2012
• Have not been convicted of a felony, significant misdemeanor or three or more other misdemeanors
• Do not otherwise pose a threat to national security or public safety.

Candidates may qualify for DAPA if:

• They have lived in the United States continuously since Jan. 1, 2010
• Have no lawful status on Nov. 20, 2014
• Were physically present in the United States on Nov. 20, 2014
• At the time of making a request for consideration of DAPA, had on Nov. 20, 2014, a child of any age or marital status, who is a US citizen or lawful permanent resident
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors
• Do not otherwise pose a threat to national security
• Are not an enforcement priority for removal

Background Screening a Minor: Should It Be Done?

According to the Bureau of Labor Statistics, almost 28.8% of young adults, 16-19 years of age, were employed in December 2014.1 In addition, The Bureau of Justice Statistics reported that there were approximately 1.3 million juvenile arrests in 2012 (39% involving youth younger than age 15).2 For these reasons, employers may have justification for developing and implementing a background screening program for minors.

There are a number of factors to consider when conducting background checks on minors seeking employment. As with all background screens for applicants or employees, the Fair Credit Reporting Act (FCRA) requires consent in conjunction with pre-employment screening for minors as well. Careful understanding of the nature of a minor’s consent is necessary for employers to be protected.

Compliance Update - Special Ban the Box Adverse Action Requirements Reminder

We want to remind our clients of special Adverse Action requirements for some of the recent cities/states that have passed "Ban the Box" ordinances. Please refer to the information below:

Chicago, IL - Requires the adverse action notice to include a reference to the specific items which form the basis of the criminal record decision. No pre-adverse action letter requirements.

Massachusetts - Requires (i) a copy of the Company’s Massachusetts Criminal Record Information Policy; (ii) the sources of any criminal history records provided to the Company (as reflected in the background report); and (iii) information from the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) concerning the process for correcting a criminal record.

Montgomery County, MD - The pre-adverse action notice must include a reference to specific criminal items which form the basis of the decision; and then there is a minimum seven day waiting period before taking adverse action. Montgomery County, MD does not require that the final adverse action letter specifically enumerate the items forming the basis for the action.

New Minnesota Expungment Law Helps Protect Employers from Liability

Minnesota has joined a list of states that have either introduced or have passed laws that protect employers from negligent hiring and retention suits when hiring ex-offenders with expunged criminal records.  In addition to the protection from expunged records Minnesota included in their “Ban the Box” regulation a similar protection that an employee’s criminal record “may not be introduced as evidence in a civil action against a private employer” where “the action is based solely upon the employer’s compliance with the law (not asking about the criminal record on the application). These laws may not protect employers, however, if there is negligence for not performing a proper background check in order to ensure a safe work environment.    

The states of Georgia, Tennessee, and Alabama have similar laws.