EmployeeScreenIQ Blog

Great blog posting out of HRMorning.com yesterday about the EEOC and employment background investigations.

When the Equal Employment Opportunity Commission started noticing an increase in discrimination suits based on background checks, the agency decided to warn employers about practices that could get them in trouble.

The EEOC program designed to combat discriminatory practices tied to background checks is called E-RACE (Eradicating Racism And Colorism from Employment). It started when the agency noted, in the last few years, a steep climb in complaints from applicants who said they were unfairly excluded from competing for a job because of information that showed up on a background check.

What sort of information? On the face of it, nothing extraordinary — a criminal record or a poor credit rating. The problem came when applicants were able to show that the criteria used had a negative impact on hiring opportunities for black and Hispanic males, who statistically have higher arrest rates and lower credit scores than white males.

Here are two background-check practices that have caused the biggest headaches — with the EEOC and in court — for employers:
Blanket policies against hiring anyone with a criminal record or poor credit score. The sticking point for such policies is that, without knowing it, an employer could routinely give preference to whites. What to do: Check to see if your practices exclude most blacks and Hispanics, whole opening the door to white applicants. If you see a pattern, the EEOC may see one, too.

Failing to show the correlation between background checks and the job itself. The EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.

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In a monumental decision this weekend the Obama administration is changing the governments course on federal marijuana laws.  According to the Associated Press:

Federal drug agents won’t pursue pot-smoking patients or their sanctioned suppliers in states that allow medical marijuana, under new legal guidelines to be issued Monday by the Obama administration.

This puts many U.S. Employers and the U.S. Government as an employer in an ethical quandary.  Many employers use extensive background screening services such as EmployeeScreenIQ to screen potential candidates.  As part of this process substance abuse testing may be included.  Many employers use the Department of Transportation’s (DOT) drug free workplace policies as a standard.  With fourteen states already allowing medical marijuana one can only wonder how these employers are supposed to react to these new policies.

This blog is not intended to start a “for or against” type of debate but more so to see how employers will react to the news.  In Ohio we don’t have medical marijuana but its gaining momentum.  Ohio is has great incentives for employers to create drug free workplaces.  Should it pass here it could create a tidal wave of questions from employers!

Feds to Issue New Medical Marijuana Policy

WASHINGTON – Federal drug agents won’t pursue pot-smoking patients or their sanctioned suppliers in states that allow medical marijuana, under new legal guidelines to be issued Monday by the Obama administration.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state law.

The guidelines to be issued by the department do, however, make it clear that agents will go after people whose marijuana distribution goes beyond what is permitted under state law or use medical marijuana as a cover for other crimes, the officials said.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

Fourteen states allow some use of marijuana for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

California is unique among those for the widespread presence of dispensaries — businesses that sell marijuana and even advertise their services. Colorado also has several dispensaries, and Rhode Island and New Mexico are in the process of licensing providers, according to the Marijuana Policy Project, a group that promotes the decriminalization of marijuana use.

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I first learned of this famous latin phrase as a criminology major at Kent State University.  Quis custodiet ipsos custodes? is a Latin phrase from the Roman poet Juvenal, which literally translates to “Who will guard the guards themselves?”, and is variously translated in colloquial English as “Who watches the watchmen?”  I felt it appropriate when reading the following article about Senate Bill 447 in California.

Governor to consider bill barring ex-cons from doing background checks

Lori Consalvo, Staff Writer
Created: 07/29/2009 07:57:44 PM PDT

Now that Gov. Arnold Schwarzenegger has signed the state budget, he has to decide whether to sign more than 100 new bills.

Among the measures that will soon be placed on his desk is Senate Bill 447, which would ensure that people with a criminal past can’t conduct background checks for prospective employees and members at agencies, such as the Boy Scouts.

Lawmakers backing the bill expect it to hit Schwarzenegger’s desk within the next week.

Once the bill is sent to the governor, he would have 12 days to sign it.

The Assembly passed the bill on July 13, after it received Senate approval in May.

“It’s a great, great idea,” said Susan Warren, co-founder and co-director of Project Think in Claremont. “I don’t think we can be too careful checking the backgrounds of individuals who are going to be working with children, or checking those supervising children, who are our most important resources for the future.”

Project Think is an active-learning summer program for preschoolers to eighth-graders. Warren has been a teacher and principal for 22 years and is a professor and director of masters programs and education at Azusa Pacific University.

There are 36,000 youth organizations in California that require criminal background checks for prospective members. But the person conducting the background checks can also review his or her own past.

“We can’t take that chance because that could ruin a child’s life,” Warren said.

Bill sponsor Sen. Leland Yee, D-San Francisco, said the loophole could lead to an ex-con supervising an organization’s background check process unbeknownst to other agency members.

The bill would require the state Department of Justice to review the criminal past of potential record custodians to confirm whether they are suited for the position.

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The New York Times is reporting that Democrats have dropped the contraversial “Card Check” provision to the Employee Free Choice Act.  As many of our readers know, SHRM’s Michael Layman discussed this bill in detail during his podcast on the EmployeeScreen IQ Blog.  While I am confident SHRM will still fight this bill, it’s process will now be more Democratic.

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It appears that  HR 3149 was introduced yesterday and Referred to Committee.  HR 3149 is a bill set to amend the Fair Credit Reporting Act (FCRA) to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.  EmployeeScreenIQ and EmployeeScreen University have written about this topic many times in the past.  As an industry, pre-employment credit reports are only suggested to be used when necessary and only for the responsibilities of that particular position.  In fact, the EEOC and FCRA already have provisions that the adverse information can only be used if it fits within the scope of the job. Most background screening programs only impliment this type of check as part of a much broader search.

Section three of the bill provides some exceptions but does not take into account most of them.  We suggest you spend some time reading this bill and write your congressperson to oppose it.  We agree the intent of this bill is to get more people to work.  However, as with most legislation, there are some unintended consequences.  There must be provisions for positions that could be negatively effected by a person with a poor credit history.  This 111th Congress has a horrible track record already for not even reading bills before voting.  Reach out and make a difference, make them read it, make them amend it!

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According to this article there are a bunch of bills in Louisiana that will expand an employers rights to do background checks to identify sex offenders.

Package of bills targets sex offenders

The Department of Social Services is pushing legislation that would allow for more extensive background checks on employees who have close contact with children.

Currently, state child abuse and neglect investigators, employees with supervisory or disciplinary authority over children, and other employees who could potentially be alone with children, are subject to state background checks and are checked against the registered sex offender database, DSS Secretary Kristy Nichols said.

House Bill 703, sponsored by state Rep. Kay Katz, R-Monroe, would authorize the department to do national background checks on those individuals, as well as staff that license the homes in which abused and neglected children live.

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We were just made aware of this today.  We have notified the National Association of Professional Background Screeners (NAPBS), we will work together on an action plan!  As we reported last week, we met with the EEOC in Washington DC regarding credit reporting issues and they are aware of our position.  We certainly understand where the legislation is coming from but its important that lawmakers understand that these reports are needed in certain circumstances.  Background checks are an integral part of the hiring process and companies can’t continue to put themselves in harms way. Stay tuned to employeescreen University for regular updates!

Bill Would Ban Using Credit History in Hiring

Ohio employers should not be allowed to consider people’s credit history when deciding whether to hire them or change their employment status, a Columbus Democrat said after introducing a bill to ban the practice.

Sen. Ray Miller said he introduced legislation declaring it discriminatory to use a person’s credit rating in relation to his or her employment after two constituents were fired from the Defense Supply Center Columbus because of their credit history.

“This issue is particularly discriminatory for young people who are just starting out in the job market,” Miller said. “They are in a tough economy with more student loan debt than has ever been experienced before. We need to be aware of how society is changing.”

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We have seen this before and we will see it again.  Worried about identity theft, Texas legislators are attempting to remove dates of birth (DOB’s) from public records.  The National Association of Professional Background Screeners (NAPBS) is aware of the issue and will be in contact with Texas officials.  NAPBS has been successful in several states when these issues have surfaced in the past.  Whereas this bill does not directly remove DOB’s from all public records, its sends the wrong message.  Any type of redaction could open a pandora’s box of legislation. DOB’s are a critical piece of information when conducting a background check.  If the public record does not include the Social Security Number, a DOB is the only way to identify the subject as the one a search is being conducted on.  Using an individuals DOB to commit identity theft without the Social Security Number is virtually impossible, therefore NAPBS has taken a strict position against redaction of this critical information. NAPBS and employeescreenIQ will be releasing more information on how you can contact Texas lawmakers in the coming days.  We will be updating employeescreen University regularly as information becomes available.

Bill Seeks to Pull Birth Dates from Public Records

By JACKIE STONE Associated Press Writer © 2009 The Associated Press

AUSTIN, Texas — Texas lawmakers worried about identity theft are trying to remove state employees’ birth dates from public records — a move journalists and open records advocates say is unnecessary and will hamper government oversight.

A proposal by Rep. Helen Giddings, D-DeSoto, that would make the information private is scheduled for a public hearing Tuesday. A Senate version of the bill had a hearing earlier this month.

Those and at least two other bills filed in the Legislature this session could supersede a pending Texas Supreme Court case between The Dallas Morning News and the state comptroller’s office.

In 2006 the comptroller’s office filed a lawsuit asking that birth dates be ruled as personal information exempt from open records requests. That was after then-Comptroller Carole Keeton Strayhorn refused to include birth dates with employee payroll records requested by the Morning News. Past records have included the dates.

Current Comptroller Susan Combs has backed Strayhorn’s decision as the case moved through the lower courts.

“The main date-of-birth problem we have is identity theft, and identity theft is one of the nation’s fastest growing, most expensive criminal enterprises,” said Allen Spelce, a spokesman for Combs.

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I was happy to see this article this morning on Reuters.  We still get a lot of questions about using Polygraph tests as a mode for pre-employment screening.  Years ago, lie detector tests were huge in the pre-employment realm, like many things it was legislated out of existence for that purpose.  The polygraph industry was once quite large, now it is limited to a few select specialists.  This article does a great job in summarizing the Employee Polygraph Protection Act (EPPA) and its limitations.  Enjoy!

Lie Detector Tests

Who is Covered

The Employee Polygraph Protection Act (EPPA) applies to most private employers. The law does not cover federal, state and local governments.

Basic Provisions/Requirements

The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.

Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.

Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act.

Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.

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Once again we feel it’s important to step aside from writing about background checks and cover this important HR legislative issue.  A few weeks back we wrote about the Employee Free Choice Act (EFCA), here is an update!

This week, Sen. Arlen Specter (R-PA) – a pivotal vote on labor issues and potentially the 60th cloture vote on the Employee Free Choice Act of 2009 (EFCA, H.R. 1409 / S. 560) in the Senate – announced that he plans to oppose EFCA and oppose cloture on the bill.

While this is important news for HR professionals, employees and employers, the effort to pass EFCA and other amendments to the National Labor Relations Act (NLRA) will remain alive for the foreseeable future.  Sen. Specter’s announcement means that EFCA proponents are still only two votes shy in the current Senate of having the 60 votes necessary to defeat a filibuster and pass the bill.  There are more than enough House members to pass EFCA, and President Obama continues to support its enactment.  Even after announcing his opposition to EFCA, Sen. Specter acknowledged that EFCA, or the “card check” bill, will not go away.

For these reasons, the SHRM Governmental Affairs department has prepared an EFCA Toolkit to help members more fully participate in the advocacy process on the EFCA and other amendments to the NLRA.

The EFCA Toolkit is one component of a larger more comprehensive advocacy strategy on the Employee Free Choice Act. The Toolkit is designed to provide you with the necessary materials to perform your own grassroots advocacy campaign.

Included in the Toolkit are the following:

-  Employee Representation Fact Sheet
-  EFCA Power Point Presentation
-  How to Lobby Power Point Presentation
-  Text versions of both the House (H.R. 1409) and Senate (S. 560) versions of EFCA
-  Employee Representation Email Alert
-  SHRM’s Employee Representation Policy Statement
-  Sample Letter to the Editor for your local newspaper(s)
-  Myths vs. Facts – This document addresses the common claims of EFCA supporters

We hope you will visit the EFCA Toolkit website because your involvement is critical to SHRM’s advocacy success.

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