Background Checks and the Fair Credit Reporting Act. Cole Cummins, ARM-P APEI

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1 Background Checks and the Fair Credit Reporting Act Cole Cummins, ARM-P APEI

2 Today s Topics n Why do background checks n FCRA n EEOC n Best Prac:ces

3 Why Do Background Checks n To keep the workplace safe 10% of job applicants have a criminal record n To hire quality applicants n To evaluate character n To follow the law n To prevent theh n To Reduce negligent hiring Lawsuits Turnover

4 Types of Background Checks n Criminal Records Search n Driving Records n SSN Verifica:on n Employment Verifica:on n Educa:on n Professional License n Credit History

5 Advantages of Background Checks n Eliminate uncertainty in the hiring process n Demonstrate Due Diligence n Encourage open communica:on and honesty on the part of the applicant n Discourage applicants with something to hide or a reason to falsify creden:als n Avoids nega:ve publicity

6 Fair Credit Reporting Act (FCRA) n Federal law that regulates the collec:on, dissemina:on and use of consumer reports in the employment sesng n Enforced by the Federal Trade Commission

7 What is a consumer report n Any writen, oral, or other communica:on of any informa:on by a consumer repor:ng agency bearing on a consumer s credit worthiness, credit standing, credit capacity, character, general reputa:on, personal characteris:cs, or mode of living.

8 Consumer Reporting Agencies n Any person or en:ty who regularly engages in whole or in part in the prac:ce of assembling or evalua:ng consumer credit informa:on or other informa:on on consumers for the purpose of furnishing consumer reports to third par:es Reference checking services Credit repor:ng agencies Online reference- checking agencies n Equifax n Experian n Trans Union

9 What must be excluded from consumer reports n Excluded unless exemp:on applies Bankruptcies over 10 years Civil and judgment suits over 7 years Records of arrest over 7 years Paid tax liens over 7 years n Exemp:ons Individuals with annual salaries at or above $75,000

10 Complying with FCRA n Before you get a consumer report Employers must cer:fy that they will comply with the federal and state legal requirements and not discriminate or misuse informa:on provided by the repor:ng agency You must get writen permission from employee/applicant n If using CRA to get informa:on from an employer, it must be stated clearly and conspicuously n Stand alone form n There are addi:onal obliga:ons for Inves:ga:ve Reports (reports based on personal interviews concerning a person s character, general reputa:on, personal characteris:cs, and lifestyle)

11 Complying with FCRA n Before you take adverse ac:on Employers must provide no:ce along with copies of the consumer report you used to make your decision Must allow reasonable period aher providing applicant with copies before taking adverse ac:on Provide the applicant/employee a copy of A Summary of Your Rights Under the Fair Credit Repor:ng Act form n Summary of Your Rights

12 Complying with FCRA n Before you take adverse ac:on If an applicant s/employee s credit score is included in the consumer report that is relied upon to make an adverse employment decision, there are addi:onal disclosures that must be made to them, including: n Their credit score n Up to four of the key factors which adversely affected the credit score

13 Complying with FCRA n AHer you take an adverse employment ac:on The employer must provide the applicant or employee a no:ce of that fact orally, in wri:ng, or electronically The no:ce must advise them of their rights to see the informa:on being reported about them and to correct the inaccurate informa:on. No:ce must include: n Name, address, and phone number of the repor:ng agency n Statement that the repor:ng agency did not make the decision to take adverse ac:on and cannot give specific reasons for it n Their right to dispute accuracy or completeness of informa:on and to get an addi:onal free report from the company within 60 days if requested

14 Best Practices Under FCRA n Make sure to retain complete documenta:on of all the steps taken to comply with the FCRA Keep copies of the correspondence to the applicant/ employee n Disposal of reports is also required You must burn, pulverize or shred papers and destroy or erase electronic files. FCRA Guidance

15 EEOC n The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee that fall under Title VII n Care must be taken to consider disparate treatment and disparate impact n Informa:on used to determine eligibility for employment must be job related n A criminal record cannot be used to automa:cally disqualify an applicant, unless there is a business jus:fica:on

16 EEOC n Strategic Enforcement Plan for FY htp:// n A top na:onwide enforcement priority for the EEOC is the elimina:on of systemic barriers in recruitment and hiring n Employers need to review all hiring policies and procedures and make sure the staff involved in the hiring process is properly trained

17 EEOC Guidance on Criminal Background Checks n Updated EEOC Enforcement Guidance htp:// n Looks at the rela:onship between the considera:on of criminal history and unlawful discrimina:on under Title VII n EEOC believes the use of criminal background checks result in a dispropor:onate number of individuals from protected classes being unfairly screened out of the employment selec:on process n Myth Buster

18 EEOC on Criminal Background Checks n If the EEOC determines that the use of criminal background informa:on results in a disparate impact on a protected class of individuals, the employer must show that the prac:ce is job- related and consistent with a business necessity n Two ways to meet that defense Use of the Uniform Guidelines on Employee Selec:on Procedures; or n Employer develops a targeted screen with an individualized assessment n Green Factors Nature and gravity of the offense, :me elapsed, and nature of the job held or sought

19 EEOC on Criminal Background Checks n Individualized Assessment Look at the individuals who would be excluded from employment by the screen and make sure it is consistent with business necessity Inform the individual that he/she may be excluded because of past criminal conduct and provide them an opportunity to demonstrate that the exclusion does not properly apply to them This could be done by: n Job references, rehabilita:on efforts, errors in background check If the individual does not respond to the employer s atempt to gather addi:onal informa:on about his/her background, the employer may make its employment decision based on the screen results

20 Additional Considerations n Arrests are not proof of criminal conduct, therefore, having an exclusion because of an arrest record alone will not meet the business necessity defense n Excep:ons for certain posi:ons under federal law i.e. airport screener convicted in the last 10 years n Compliance with conflic:ng federal law is a defense to a charge of discrimina:on, but state and local laws are preempted by Title VII

21 Additional Considerations n Certain jobs do have extensive background inves:ga:on requirements: Healthcare Police and enforcement posi:ons Childcare People who work with vulnerable popula:ons Banking and fiduciary responsible posi:ons Airport and TSA posi:ons

22 ALASKA n You can ask about arrest not leading to convic:on. You should only be provided that within the last year. n Arrest informa:on not leading to convic:on can only be provided to employers who work with minors or dependent adults AS (b)(8)- (9)

23 Best Practices n Eliminate blanket policies that automa:cally exclude individuals based on any criminal record n Train managers, hiring officials, and decision makers about Title VII and its prohibi:on on employment discrimina:on n Develop a narrowly tailored writen policy and procedure for screening applicants and employees for criminal conduct Iden:fy essen:al job requirements and the actual circumstances under which the jobs are performed

24 Best Practices n Determine the specific offenses that may demonstrate unfitness for performing such jobs n Determine the dura:on of exclusions for criminal conduct based on all available evidence Include an individualized assessment n Record the jus:fica:on for the policy and procedures n Note and keep a record of consulta:ons and research considered in crahing the policy and procedures n Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII

25 Best Practices n When asking ques:ons about criminal records, limit inquiries to records for which exclusion would be job related for the posi:on in ques:on and consistent with business necessity n Do not allow a resume to subs:tute for the applica:on n Maintain Confiden:ality n Keep informa:on about applicants and employees criminal records confiden:al. Only use it for the purpose for which it was intended

26 Sum it all up Summary

27 Questions - Discussion

28 For Additional Information Contact Cole Cummins, ARM-P Loss Control Manager

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