Criminal History Records

Please join me next week for a discussion about what employers need to be aware of regarding pre-employment background checks to ensure you have compliant background screening policies and procedures in place. Some of the topics I will discuss include the Fair Credit Reporting Act, state law regarding restrictions on the use of credit information for employment screening purposes, the EEOC’s guidance on the use of criminal history records, and Fair Chance Hiring laws (aka Ban the Box ordinances).

The webinar is hosted by ClearStar.  Please register by clicking here.

Details: The free webinar is Wednesday, March 15, 2017 from 2:00 PM – 3:00 PM EDT.

A series of recent class action complaints against employers leads me to write about what employers can do to mitigate risk with respect to their background screening program.

I’m talking about pre-employment background checks when an employer uses the services of a third-party background screening company. Under the Fair Credit Reporting Act (FCRA) (15 U.S.C. § 1681 et seq.) employers have two critical responsibilities when using the services of a third-party background screening firm to request background checks on prospective employees.

Employers must do the following in order to comply with the FCRA when requesting a background check:

  1. Employers must provide prospective employees a clear and conspicuous disclosure regarding the fact that you will conduct a background check AND you must get the individual’s written authorization to conduct such. This is typically called the disclosure and authorization notice and it must be in a stand-alone document. The FCRA requires that when an employer requests a background check (aka a “consumer report”) for employment purposes they must provide “a clear an conspicuous disclosure” in writing “before the report is procured or caused to be procured, in a document that consists solely of the disclosure” and “the consumer has authorized in writing….” (15 U.S.C. § 1681b(b)(2)(A)(i)-(ii))
  2. Employers must follow the adverse action process, which is potentially a two-step process. The first step is typically referred to as the “pre-adverse action step” and you cannot send a final “no hire” letter until you complete this step. So, hypothetically speaking, after completing step 1 above you receive the results of a background check from your background screening vendor. The report indicates a criminal history or some other adverse item of information.  Based on this information, you may decide not to hire the individual.  Now what?  Before you take any final adverse action you must first provide the individual with a copy of the report you are reviewing and a summary of their rights as prescribed by the Consumer Financial Protection Bureau.  This allows the prospective employee to review the report and alert you if any information contained therein is inaccurate or incomplete and also to act on that incorrect or incomplete information with the background screening company. You should wait at least five business days before taking any final adverse action although realize that in some states and cities, Fair Chance laws and ordinances (aka Ban the Box laws and ordinances) may impose greater time periods. For more about Ban the Box, click here.

At a minimum, employers must follow above two steps to comply with the FCRA.  Depending on what state or city you are in there may be additional requirements, but these are the basics when doing pre-employment background checks on prospective employees.

Which brings me to the class action litigation and a sampling of the cases brought against employers for alleged non-compliance with the FCRA related to steps 1 and/or 2 described above.

  • Class action complaint filed against an airline catering and provisioning company (Case No. 2:17-cv-1298) for allegedly not following the pre-adverse action process.
  • Class action complaint filed against a major retail pharmacy chain (Case No. 5:17-cv-6019) for not providing the proper disclosure that a background check would be conducted and failure to follow the pre-adverse action process.
  • Class action complaint filed against a plasma provider (Case No. 5:17-cv-6018) for not following the pre-adverse action process.

There is a very active plaintiff’s bar filing complaints against both employers and background screening companies for alleged violations of the FCRA.  They do not discriminate based on type of employer or size of your business.  You’ve been warned.

But not all is lost as these are curable compliance issues. You start by reviewing your background screening program–your policies and procedures–with counsel versed in the FCRA and state consumer protection laws and guidance that govern background screening. You need to go step by step through the hiring process to understand where you may have deficiencies and need to shore up your compliance. For instance–if, as an employer, you utilize an adjudication matrix or screening standards to automatically classify individuals as “ineligible” for hire and automatically proceed to send a no hire letter we should talk about your background screening program and whether it complies with the requirements of the FCRA.  Or, your FCRA disclosure and authorization has a lot of “extraneous language” such as a release of liability language, we should talk.  Willful violations of the FCRA are eligible for statutory damages of $100 to $1,000/violation, plus punitive damages and attorney’s fees.

We would be happy to talk to you about your background screening program. Please contact Montserrat Miller at Arnall Golden Gregory at montserrat.miller@agg.com or 202-677-4038 for assistance.

Los Angeles is the latest major city to pass a Ban the Box measure (Ordinance 184652) applicable to private employers. It will become effective January 22, 2017 and will be enforced beginning in July 2017. Other major cities with Ban the Box laws include:

And don’t forget that eight states have Ban the Box measures on their books which are applicable to private employers — HI, IL, MA, MN, NJ, OR, RI, VT.

What is Ban the Box?  In its most basic form it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions).  Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check.  Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. At least in theory that’s what is supposed to happen as a result of Ban the Box measures, which are often referred to as fair hiring policies.

But, nothing in life is simple. Often, Ban the Box measures go beyond simply requiring employers remove the criminal history question from the job application and they include additional requirements, such as requiring:

  • Employers conduct an individualized assessment if criminal history is discovered during an background check (e.g., Austin, San Francisco, Los Angeles).
  • Employers advise the applicant the reason for their decision to not hire if it includes criminal history information (e.g., Chicago, Portland, San Francisco, Seattle, Washington, DC).
  • Employers provide a specific amount of time to allow the applicant to review and respond to criminal history information discovered as a result of a background check (e.g., Philadelphia, San Francisco).
  • Employers provide disclosures about the law (e.g., Philadelphia, San Francisco, Washington, DC).
  • Employers cannot have restrictive language in their advertisements (e.g., Seattle).
  • Important Although above bullet points cover some of the key requirements, they are not exhaustive as Ban the Box measures are similar but not identical.
  • And, and, and (yes, I meant three and’s), don’t forget that as a private employer you must also comply with the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) if you receiving background check reports from a third-party background screening company.

For employers in a jurisdiction that has a Ban the Box law it’s important to understand what your obligations are. A comprehensive background screening policy will assist any employer seeking  compliance with federal and state law.  If that is on your “to do” list for 2017, we can assist in developing policies and procedures.

Yesterday I attended an interesting webinar regarding Fair Credit Reporting Act (FCRA) developments.  Susan Camp Stocks from the Consumer Financial Protection Bureau (CFPB) and Katherine Ripley White from the Federal Trade Commission (FTC) participated, along with my colleagues Bob Belair and Kevin Coy. The speakers covered a fair amount of ground on different FCRA issues, including the importance of furnishers of information having written policies and procedures.  However, I want to focus on what they said about the background screening industry.

FTC Comments

  • They are focusing on background screening and in particular the use of criminal history records in employment screening
  • Accuracy of the reports is essential
  • Red flags that background screeners should review/consider when reporting public records — different names or DOBs, multiple entries for the same offense, and the reporting of expunged cases
  • They are working with the Federal Interagency Reentry Council to address accuracy related issues in the criminal justice system
  • They will turn their attention to focus on tenant screening in the next year and it is likely that we will see revised guidance in this area

CFPB Comments

  • Among their policy priorities is consumer reporting
  • It appeared that there is a belief that there is weak oversight of public record providers and that they believe more audits of such providers should be conducted to address accuracy issues
  • Accuracy of the reports is very important to them and they spoke about the enforcement action against General Information Services and e-Backgroundchecks.com to illustrate the point

Nineteen companies joined President Obama as founding companies of the White House’s Fair Chance Business Pledge.  According to the White House Fact Sheet, “The pledge represents a call-to-action for all members of the private sector to improve their communities by eliminating barriers for those with a criminal record and creating a pathway for a second chance.”

Companies signing the pledge include: American Airlines, Busboys and Poets, The Coca-Cola Company, Facebook, Georgia Pacific, Google, Greyston Bakery, The Hershey Company, The Johns Hopkins Hospital and Health System, Koch Industries, Libra Group, PepsiCo, Prudential, Starbucks, Uber, Under Amour/Plank Industries, Unilever and Xerox.

Those signing the pledge are agreeing to:

  • “Voicing strong support for economic opportunity for all, including the approximately 70 million Americans who have some form of a criminal record.
  • Demonstrating an ongoing commitment to take action to reduce barriers to a fair shot at a second chance, including practices like “banning the box” by delaying criminal history questions until later in the hiring process; ensuring that information regarding an applicant’s criminal record is considered in proper context; and engaging in hiring practices that do not unnecessarily place jobs out of reach for those with criminal records.
  • Setting an example for their peers. Today’s announcement is only the beginning. Later this year, the Obama Administration will release a second round of pledges, with a goal of mobilizing more companies and organizations to join the Fair Chance Business Pledge.”

This is part of a larger initiative by the President targeting reforms to the criminal justice system and re-entry of ex-offenders into society.  A rule is expected this year from the Office of Personnel Management regarding federal employment and removal of the criminal history question on job applications.  In essence, a federal Ban the Box measure.

The city of Austin in Texas is the latest major city to pass a Ban the Box ordinance which affects private employers.  Ordinance No. 20160324-019 was approved on March 24, 2016 by a vote of 8 – 2.

What this means for private employers in Austin:

  • An employer may not solicit or consider criminal history information about a job applicant until after a conditional offer of employment.
  • An employer may not take adverse action against an applicant unless an individualized assessment has been conducted and a determination made that the individual is unsuitable for the job based on that individualized assessment.
    • An individualized assessment must include, at a minimum, consideration of the following factors (a) the nature and gravity of any offenses in the applicant’s criminal history; (b) the length of time since the offense and completion of the sentence; and (c) the nature and duties of the job for which the applicant applied.  Note that these are the Green factors described in the EEOC’s 2012 enforcement guidance on the use of criminal history records.
  • The employer must advise the applicant of the adverse action based on criminal history information in writing.
  • The ordinance does not apply to a job for which a federal, state or local law, or compliance with legally mandated insurance or bond requirements, disqualifies the applicant based on their criminal history.
  • Violations of the ordinance will be enforced by the Austin Equal Employment/Fair Housing Office.  Employers may be issued a warning for a first violation, followed by a civil penalty of up to $500.
  • The effective date of the ordinance was April 4, 2016.

 

Philadelphia’s Ban the Box has been on the books since 2011.  However, it was recently amended and certain changes went into effect yesterday (3/14/16).  Here are the basics about the Fair Criminal Records Screening Standards Ordinance (pay special attention to those items in bold/italics):

  • It is illegal (i.e., an unlawful discriminatory practice) in Philadelphia for employers to ask about criminal backgrounds during the job application process.  Employers must wait until they have provided the job candidate with a conditional offer of employment.
  • The ordinance now applies to employers with 1+ employees (previously it was 10+ employees).
  • Permits employers to consider criminal convictions only within seven (7) years from the date of application.
  • Employers are prohibited from asking at any time about arrests or criminal accusations which did not lead to a conviction.
  • Employers must conduct an individualized assessment.
  • Employers must post the poster issued by the Philadelphia Commission on Human Relations (PCHR) in a conspicuous place for job candidates to see (e.g., a company website or on the premises).
  • Complaints can be filed within 300 days of an “unlawful act” with the PCHR and could ultimately be filed in court.  In other words, there is a private right of action which can be enforced in court.
  • Employers can reject a job candidate based on your criminal record only if the person poses an unacceptable risk to the business or to other people.  If a job candidate is rejected, the employer must send the decision to the job candidate in writing with a copy of the background report used to make the decision AND must afford the job candidate ten (10) business days to give an explanation of their record, proof that it is wrong, or proof of rehabilitation.  So the question here is — does an employer send this notice during the FCRA required pre-adverse action phase (when they haven’t technically “rejected” the job candidate) or wait until the FCRA required adverse action step (but then the employer has to wait another 10 days).

For the text of the ordinance click here.

For more on Philadelphia’s Ban the Box click here.

For a complete list of changes to Philadelphia’s Ban the Box click here.

The Affordable Care Act provides grants to states to implement background check programs for prospective long-term-care employees in settings such as nursing facilities, home health agencies and hospices. The grant program,  known as the National Background Check Program (NBCP), is intended to ensure that long-term-care employees undergo a minimum level of screening to protect patients.  Three types of background checks are required by the NBCP: (1) a search of State-based abuse and neglect registries and databases; (2) a check of State criminal history records, and (3) a fingerprint-based check of FBI criminal history records.  However, according to a recent Department of Health and Human Services Office of Inspector General (OIG) report, the NBCP has a long way to go before it is fully viable. (National Background Check Program for Long-Term-Care Employees: Interim Report, January 2016)

This is just as well considering that the third type of check – a fingerprint-based check by FBI records – is not, in this author’s opinion the panacea that many believe it to be. Name-based checks, when done using multiple identifiers, can be more accurate.  Moreover, information in the FBI’s database is limited and does not always contain final disposition information.  But fingerprint-based checks and the FBI are for another article.  In the meantime, what are steps that long-term-care facilities and providers can take to protect themselves, their workforce and their patients.  It is important to note that the guidance provided in this article is applicable across-the-board, to all employers in the United States who conduct background checks and not limited to long-term-care facilities and providers.

Regardless of whether a facility or organization is mandated to conduct certain background checks on employees, or is conducting such checks for due diligence purposes, it is important to understand the basics behind ensuring a legally compliant background screening program. The following bullet points will address the basics and some key elements of a complaint background screening program.

  • First, if your organization works with a third-party background screening company and they provide you with your background check reports, you are covered by the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) in addition to analog state consumer protection statutes. As the “end-user” of “consumer reports” provided by a “consumer reporting agency” you have certain responsibilities under the FCRA. Failure to follow these responsibilities can lead to private litigation for violations of the FCRA and state laws, especially when we consider a very active plaintiff’s bar bringing claims against primarily end-users of consumer reports (i.e., employers) but also consumer reporting agencies (i.e., background screening companies).
  • Second, employers have an obligation to provide certain disclosures to job applicants when conducting a background check for employment purposes. A key disclosure is frequently called the “Disclosure and Authorization” notice. This notice is required by the FCRA to inform the job applicant that a background check will be conducted for employment purposes, among other things. Not providing a legally sufficient or defensible notice advising the job candidate of the fact that a background check will be conducted in a document that is “clear and conspicuous” and in a stand-alone format is the subject of significant amount of litigation around the country.
  • Third, still on the topic of the above notice and the content therein. Although the FCRA does not specify the exact content of the notice, the courts have stated that including extraneous information in it, such as a release of liability, a waiver of rights under the FCRA or language about the employment itself can cause the notice to be legally deficient.
  • Fourth, organizations must secure a job candidate’s written authorization for the background check to be conducted by a background screening vendor.
  • Fifth, whenever an organization reviews the background check report for purposes of determining employment eligibility, the FCRA requires that organization to follow certain steps if information in the report will be used “in whole or in part” to take adverse action against the subject of the report. This is called the “adverse action” process and it is a two-step process.
    • The first step is triggered when an organization reviews information in the report and makes the initial determination that the individual may be excluded from employment based on information in the report. This triggers what is known as the pre-adverse action step which requires the organization provide the job applicant with a copy of the report and a federal notice called “A Summary of Your Rights Under the Fair Credit Reporting Act.” Then, as a general rule, the organization should wait at least five (5) business days to allow the individual to review the report and challenge any inaccuracy or incomplete information in the report with both the organization and the background screening company. Sometimes, the reports do include inaccuracies and the FCRA is set up to allow individuals to address such inaccuracies through a consumer dispute process.
    • If, after a reasonable period of time (e.g., five business days) the organization determines it will not hire the individual due to information in the report, the second step is triggered. This is known as the adverse action step, and it requires that the job applicant be provided with a letter with specific content, as per the FCRA.

To be clear, above points are intended to provide a basic or general overview of what is required when conducting a background check using a background screening company and the focus is on the FCRA. Drafting or reviewing of corporate policies and procedures, as well as the forms/notices legally required is something that should be done with the assistance of legal counsel. It is also important to note that there are other factors an organization must consider as part of its background screening program.  Organizations need to be mindful of “Ban the Box” laws in their states and local jurisdictions and know whether they can “ask the question” on the job application about criminal history. Also, whenever an employer uses criminal history information to screen a candidate they must be aware of guidance by the Equal Employment Opportunity Commission on the use of criminal history information for employment purposes.  (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Number 915.002, April 2012)  Finally, they must factor in state restrictions on the use of credit in the employment context.

To close the loop on the OIG report mentioned in the first paragraph. The OIG found that, four years into the grant program, the 25 states receiving grants reported varying levels of program implementation. In the six states that submitted sufficient data to calculate the percentage of prospective employees who were disqualified because of a background check, 3% of prospective employees were disqualified from employment. The OIG recommended that the Centers for Medicare & Medicaid Services continue to work with participating states to fully implement their programs and to improve required reporting.

New York Attorney General Eric T. Schneiderman recently announced settlements against two major retailers (Big Lots Stores and Marshalls) for violations of Buffalo’s “Ban the Box” ordinance at local stores.  Click here to read the announcement.   In addition, the stores agreed to pay fines of $100,000 (Big Lots) and $95,000 (Marshalls).

State and local Ban the Box laws generally prohibit an employer from inquiring on a job application about a candidate’s criminal history.  That inquiry must generally wait until after a conditional offer of employment.  Buffalo is one of three major cities in New York with such a law on the books (New York City and Rochester are the other two).  Note that each Ban the Box law should be read individually as although there are similarities, there are also nuances to each.

Employers in Buffalo — the Ban the Box law applies to public and private employers with 15+ employees.  It states that you cannot inquire on a job application or prior to an initial interview about criminal history.  In addition, because Buffalo is in the state of New York, Article 23-A of the New York Correction Law also applies, specifically when considering an applicant’s prior criminal convictions in determining suitability for employment.  See Article V: Fair Employment Screening to learn more about this potentially unlawful discriminatory practice in Buffalo.

 

 

Happy New Year!  New year and new blog name — Workforce Compliance Insights.

On December 15, the Office of Personnel Management (OPM) published in the Federal Register a notice listing its priorities.  Under “Suitability” on page 77883 of the Federal Register, OPM states that they will be “proposing modifications to its rules to better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.”  Specifically, the proposed changes would prohibit federal employers from collecting criminal background information “until the best qualified candidates are referred to a hiring manager.”   According to the announcement, “OPM would be providing a mechanism for requesting exceptions when there are legitimate, specific job-related, reasons why agencies may need to disqualify candidates with certain types of adverse history from particular types of positions.”

The proposed rule is in response to President Obama’s recently announced “Rehabilitation and Reintegration for the Formerly Incarcerated” initiatives that call on the U.S. Congress and federal agencies “to pass meaningful criminal justice reform.”  One of President Obama’s long-term initiatives is for the U.S. Congress to pass a national “ban the box” law for federal hiring which would prohibit asking job applicants about criminal history on the job application. In the meantime, President Obama is calling on OPM to modify its requirements related to background checks and the collection of criminal history information.