by Nick Fishman

We’ve been following a case in the 9th Court of Appeals that is noteworthy for our industry and those that conduct background checks. The case, Dennis v. BEH-1 and Experian Information Solutions involves an individual who requested a copy of his credit report. The results indicated that there was a judgment against him in a civil case. In fact, Mr. Dennis was ordered to pay his landlord $1,959. However, at the time of judgment he entered into a stipulation that allowed for a “no judgment” so long as he made payments on the debt that triggered the litigation. Mr. Dennis did in fact make proper restitution so he disputed the results with Experian stating that that because he made the payments, the case shouldn’t be considered a judgment against him.

Experian sent a researcher into the court again to verify the results. The researcher came back and confirmed the original findings. Case ends here, right? Wrong!

Mr. Dennis filed suit against Experian for failing to correct the report and a court ruled in favor of Experian saying that Experian couldn’t be held accountable for the public record. Mr. Dennis then filed an appeal and here’s where things get interesting. Evidently, if the researcher would have looked at the case file, they would have seen the order about the stipulation. Taking this into account, the appellate court reversed field and ruled that Experian failed to “maintain reasonable procedures” to ensure the accuracy of its reports.

It wasn’t the initial findings of Experian that led to this decision. It was their failure to look deeper once the consumer disputed the findings and disclosed the stipulation.

What does this mean? This means that Consumer Reporting Agencies better take seriously their obligation to ensure the accuracy of the public information it reports. This has always been a hallmark of our service and we have always maintained procedures to ensure the accuracy of the information we provide to our clients. That doesn’t mean that information can’t be flawed when it is first reported. However, that’s why you have convictions reviewed for accuracy before you report them. But even that isn’t a guarantee 100% of the time. And when an applicant disputes the findings, you better make sure to follow up properly and responsibly.

by Nick Fishman

On Wednesday November 7th, US Citizen and Immigration Services released a revised Employment Eligibility I-9 form to be used by employers. All U.S. employers are mandated by Federal law to have all employees complete an I-9 form within the first three days of work. The use of the newly released form is not yet mandated, but soon will be. Feel free to download a copy of the new form below:

New I-9 Form

by Nick Fishman

The FTC and the federal financial institution regulatory agencies have submitted their final rules and guidelines on how creditors and financial institutions must handle identity theft “red flags” and address discrepancies.

Highlights of the rules include the following measures that must be taken:

1. Identify relevant patterns, practices, and specific forms of activity that are “red flags” signaling possible identity theft and incorporate those red flags into the Program;
2. Detect red flags that have been incorporated into the Program;
3. Respond appropriately to any red flags that are detected to prevent and mitigate identity theft; and
4. Ensure the Program is updated periodically to reflect changes in risks from identity theft.

These guidelines seem like things you would think most creditors and financial institutions would already be doing. Hopefully, these measures can help protect consumers.

Click here to view the entire FTC Release

by Nick Fishman

For those outside the state of California, you might be surprised to learn that employers can only consider criminal convictions on an applicant’s record that have taken place within the past seven years. The state enacted these laws to help those with past convictions on their records get on with their lives and to remove the potential barriers to employment. Seems like a pretty noble cause until you consider what has recently taken place at FedEx.

FedEx Fires Employee, An Unregistered Sex Offender

FedEx claims to have conducted a background check on an employee that had a forcible rape conviction on their record from 1978, and they probably did. The problem is that when they conducted the check, due to the California law, they weren’t allowed to see the past conviction; and even if they were allowed to, they couldn’t consider it. The employee made it even more difficult by failing to register as a convicted sex offender and FedEx only found out when authorities caught up with him for failing to do so. This has obviously created an embarrassing situation for FedEx and could have put them in hot water should something have happened.

If you ever read this blog, I know I’m going to sound like a broken record, but you have to trust employers with this information so that they can make an informed decision that insulates their employees, their customers and their business from negative incidents. I think that the state of California’s inclination to wipe the slate clean on past convicts has merits, but it’s got to be balanced with what can happen if you don’t allow the information to be considered.

by Nick Fishman

Check out this update from Seyfarth Shaw concerning a recent rule established by ICE concerning tougher enforcement of Social Security Mismatch Numbers.

Social Security Mismatch Letters: New ICE Rule Increases Risk to Employers

Employers that don’t properly follow up on and resolve errors stemming from workers with social security numbers that come back as mismatches now face greater risk. If the government actually follows through on this employers should take note.

There are some affective tools out there for proactively determining an employee’s right to work status. One such tool is the Electronic I-9 Process which has developed by experts to allow employers to fill out a “smart” electronic I-9 form and submit it to the Social Security Administration and Department of Homeland Security for instant status. They then can electronically archive the report and the results. It’s a great solution to handle the I-9 process, but until the federal government enacts and enforces legislation my experience is that employers aren’t going to bite.

by Nick Fishman

Many of you may be aware of the law firm Seyfarth Shaw LLP. They are one of the country’s largest labor and employement firms and widely respected as a foremost expert in such matters. employeescreenIQ is proud to be a client of this esteemed firm and as such get regular legislative updates from them concerning employment topics that can affect all of us.

Seyfarth had been kind enough to allow us to post such updates in this blog, so beginning today we will screen these updates for information that might be of interest to our loyal blog readers.

Just another opportunity for us all the learn together.

by Nick Fishman

ABA Commission Pulls Proposal on Criminal Records

Thankfully, the American Bar Association caved in to business advocacy groups in it’s efforts to seal certain criminal convictions from the records of those seeking employment.

As I’ve said in the past and will continue to say as this issue comes up, it is not the goal of an effective background check to exclude people from getting a job. The purpose of a background check is to make an informed decision about a candidate. Just because someone has a been convicted of a crime should not alone disqualify that person from employment. However, employers shouldn’t be left in the dark. They are the ones who will be left holding the bag if something happens. If you want to correct this problem, teach employers how to make proper decisions and hold those accountable who do not.

Thank you to the folks at BRB Publications for bringing this story to our attention.

by Nick Fishman

I recently conducted an interview with Maxine Sweet, Vice President of Public Education at Experian. The interview was geared towards getting the low-down on the often misunderstood topic of Credit Reports and their use in hiring decisions. The article was published in our quarterly newsletter, The Verifier.

Hopefully, this sheds some light on what a credit check is and how it can be used to make an informed hiring decision.

by Nick Fishman

Another day, another state passing a law that requires employers to verifiy their employee’s work eligibility status. (Okay, this actually took place on June 29th, but I’ve been busy blogging about other topics) This time, the State of Georgia has enacted Senate Bill 529 that mandates that all businesses the contract with the state and have 500 or more employees must confirm their employees legal right to work status with the Social Security Administration or Department of Homeland Security (DHS)for residents of other countries who are legally permitted to work in this country.

In addition to enforcing federal immigration laws, the state feels that this measure will discourage those doing business with the state from human traffiking and taking state deductions for undocumented workers.

What I find interesting about this measure is that they only require this of those that employ over 500 employees. Why? Do they trust that small employers wouldn’t hire illegals and are they just starting somewhere? Also, this should be an interesting test case for the state. What if these contractors now cannot find enough legal workers to complete the jobs the state has contracted for? Do they rescind this measure? Do they look for out-of-state contractors? Can they require out-of-state contractors to do the same? Will they eventually mandate this for all employers in the state of Georgia?

Who knows? We’ll keep following this story and update you from time to time.

by Nick Fishman

One of the most basic mandates outlined in the Fair Credit Reporting Act (FCRA) is the need to obtain a signed release from a job applicant before allowing a Consumer Reporting Agency to conduct a search for employment screening purposes. A compliant release informs the applicant about the scope of the search, who will be conducting the search and grants the employer with the waiver they need to execute a background check. It is a simple process, but when not followed can cause all sorts of trouble for employers, as illustrated in a recent Washington Post Report about large organizations in the rail road industry’s failure to do so.

Further complicating matters was these employers failure to notify candidates when they were not hired due to adverse information being found on reports and their failure to authenticate the records to ensure that they indeed belonged to the subjects of these reports. This is another big FCRA no-no. Those who are not hired due to adverse information found on their background check must be provided with a letter that states so, that provides information on disputing their record and includes a free copy of the background check. As you can see from this article, it appears that none of this was done.

The good news is that the process for following these mandates is extremely easy. A couple quick forms and some best practices advice from your counsel and, or your employment screening provider and the problem can be fixed. Remember though that the process is supposed to fair to all parties. Employers must protect the rights of their candidates so that their right to seek a background check is also protected.