Aurico and its employees are not attorneys and cannot provide legal advice. Information contained in this article should be reviewed in consultation with your council.
The Society for Human Resources Management (SHRM) found that a bad hire can cost a company up to five times the employee’s annual salary. This cost is frequently balanced against the need to fill a position or achieve time-to-hire goals. When a background check reveals findings that will limit a candidate’s hire, the next steps are critical and compliance is essential.
As a consumer reporting agency, our responsibility is to report factual information to help you make an individual assessment on each candidate. When a candidate’s information falls outside your hiring criteria, after considering all factors related to the position, the next steps are to implement the adverse action process.
Thursday, October 18, 2012
From The Blooper Book
Some applicants have a difficult time answering the simplest questions. This month, we dug deeper to find a drag racer in denial, a gun collector with a less-than-bulletproof excuse, a dim hunter and other colorful characters.
A drag race by any other name:
Q. Have you ever been convicted of a criminal record?
A. “DUI/drag racing. For the record I wasn’t really drag racing—that is just the title they gave it.”
Somehow, some way, I will convince them that this is not my fault:
Q. Have you ever been convicted of a criminal record?
A. “Recently I was charged with Felony Forgery but I am fixing it. It was either a transposed SS# or it is because of when I lost my purse in 1973.”
A drag race by any other name:
Q. Have you ever been convicted of a criminal record?
A. “DUI/drag racing. For the record I wasn’t really drag racing—that is just the title they gave it.”
Somehow, some way, I will convince them that this is not my fault:
Q. Have you ever been convicted of a criminal record?
A. “Recently I was charged with Felony Forgery but I am fixing it. It was either a transposed SS# or it is because of when I lost my purse in 1973.”
Drug Screening
Aurico maintains the largest national affiliation of collection sites for drug testing and occupational health services and will identify collection sites that align with your business requirements. Aurico supports:
- Electronic chain of custody
- Consolidated billing
- A single point of contact
- A single sign-on for background and drug test results
Court Cases — Background Checks
On August 14, a federal district court in Maryland denied a request by the Equal Employment Opportunity Commission (EEOC) for a Protective Order that would shield EEOC employees from deposition.
The case involves an employer alleged by the EEOC to have engaged in the discriminatory use of criminal history background checks and credit history checks in the hiring process. The court held that the employer should be allowed to depose the EEOC to determine the agency’s own use of such information in the EEOC hiring process.
The court concluded that the employer should not have to rely solely on the EEOC’s public statements with regard to its internal hiring policy in order to formulate a defense.
(EEOC v. Freeman, D. Md., No. 8:09-cv-02573-RWT, 8/14/12)
Click Here to Read More
The case involves an employer alleged by the EEOC to have engaged in the discriminatory use of criminal history background checks and credit history checks in the hiring process. The court held that the employer should be allowed to depose the EEOC to determine the agency’s own use of such information in the EEOC hiring process.
The court concluded that the employer should not have to rely solely on the EEOC’s public statements with regard to its internal hiring policy in order to formulate a defense.
(EEOC v. Freeman, D. Md., No. 8:09-cv-02573-RWT, 8/14/12)
Click Here to Read More
States Continue To Ban Employer Requests for Social Media Passwords
Illinois is now the third state to pass a law that prohibits companies from asking employees or job seekers for their social media user names and passwords. It’s an amendment to the state’s “Right to Privacy in the Workplace Act” and makes it unlawful to “request or require any employee or prospective employee to provide any password or other related account information” about their social media networks.
Employers, however, still have the right to monitor employees’ computers. In other words, this means you’ll have to do your self-destructive Twittering from home.
The first two states to pass this kind of privacy laws were Maryland and Delaware. Several other states, including California, Massachusetts, Michigan, New York and Washington, are lining up to do the same.
Employers, however, still have the right to monitor employees’ computers. In other words, this means you’ll have to do your self-destructive Twittering from home.
The first two states to pass this kind of privacy laws were Maryland and Delaware. Several other states, including California, Massachusetts, Michigan, New York and Washington, are lining up to do the same.
Iowa Appellate Court Defines “Accident”
On September 6, the Iowa Appellate Court ruled that an employer failed to abide by the state drug testing law by requiring a worker to submit to drug testing for a “cumulative injury.” (Skipton v. S&J Tube, Inc., No. 2-573/11-1902).
The employer’s drug test policy, established in 2007, was developed with the help of an outside third party administrator. The policy called for drug and alcohol tests if an employee was “involved in a workplace accident involving an injury which require[ed] medical treatment.” The employee in this case had been treated for “carpal tunnel” for over a year. During one of her appointments for treatment she was informed a drug test would be required. The test was performed and was returned positive for cocaine.
She was told by the company human resource manager that she could have the specimen retested but that “it would not be worthwhile” because it would “probably come out positive too.”
The District Court (trial court) found and the Appellate Court agreed that the employer violated the state’s drug testing law, sec. 730.5, in several ways:
The employer’s drug test policy, established in 2007, was developed with the help of an outside third party administrator. The policy called for drug and alcohol tests if an employee was “involved in a workplace accident involving an injury which require[ed] medical treatment.” The employee in this case had been treated for “carpal tunnel” for over a year. During one of her appointments for treatment she was informed a drug test would be required. The test was performed and was returned positive for cocaine.
She was told by the company human resource manager that she could have the specimen retested but that “it would not be worthwhile” because it would “probably come out positive too.”
The District Court (trial court) found and the Appellate Court agreed that the employer violated the state’s drug testing law, sec. 730.5, in several ways:
- Hand delivered a notice of the positive result rather than sending it certified mail as required by law
- Failed to inform the employee of the actual cost of the split test analysis—she was given a range of $200-$300
- The employer did not have the authority under the statute to require the test in the first place
Continue to Use the Current Form I-9 for Employment Eligibility Verification
Until further notice, employers should continue using the Form I-9 currently available on the forms section of http://www.uscis.gov. This form should continue to be used even after the OMB control number expiration date of August 31, 2012 has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available.
Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States. Click Here to get Direct Access to I-9 News
Answer: Often after an audit, employers are faced with correcting I-9 forms that have missing or incorrect information. According to the U.S. Citizenship and Immigration Services (USCIS), the recommended way to correct Form I-9 errors is as follows:
To correct major errors, an employer may redo the section on a new Form I-9 and attach it to the old form. Major errors may include entire sections left blank or if Section 2 was completed based on unacceptable documents. A note should be included in the file regarding the reason the employer made changes to an existing Form I-9 or completed a new Form I-9. Never discard an I-9. Attach the one in error to the new I-9, if it is necessary to complete an entirely new form.
USCIS recommends that employers should not conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration law.
Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States. Click Here to get Direct Access to I-9 News
FAQ’s:
Question: We are auditing our I-9s. What if some are incomplete or contain errors?Answer: Often after an audit, employers are faced with correcting I-9 forms that have missing or incorrect information. According to the U.S. Citizenship and Immigration Services (USCIS), the recommended way to correct Form I-9 errors is as follows:
Employers may only correct errors made in Section 2 or Section 3 of Form I-9. If an employer discovers an error in Section 1 of an employee’s Form I-9, he or she should ask the employee to correct the error. The recommendation is to: draw a line through the incorrect information, enter the correct information and initial and date the correction.If an employer used correction fluid on an I-9, commonly referred to as “white-out,” the USCIS recommends that the employer attach a signed and dated note to the corrected form explaining what happened. Using white-out is not recommended.
To correct major errors, an employer may redo the section on a new Form I-9 and attach it to the old form. Major errors may include entire sections left blank or if Section 2 was completed based on unacceptable documents. A note should be included in the file regarding the reason the employer made changes to an existing Form I-9 or completed a new Form I-9. Never discard an I-9. Attach the one in error to the new I-9, if it is necessary to complete an entirely new form.
USCIS recommends that employers should not conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration law.
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