by Jason Morris

This story seems very Sci-Fi, but very important to our future! Under this landmark legislation employers are unable to use genetic information to discriminate against employees.  Not that I ever saw the day coming but I guess I have a sense of relief knowing that employment background investigations will not include an analysis of your DNA.

President Bush Signs H.R. 493, the Genetic Information Nondiscrimination Act of 2008

Read the release from the White House Here

by Jason Morris

A big win for NAPBS! While the article does not specifically name the background screening industry, the efforts of NAPBS and end users must have had an impact!

State Supreme Court withdraws controversial records rules

By John Greiner

Capitol Bureau

The Oklahoma Supreme Court today rescinded its controversial rules that would limit public access to court information on its Web site and in court files, saying it wanted to give the issue further study and consideration.

The rule change was heavily criticized after the court issued the new rules March 11.

The rules, which would have been effective June 10, prohibited placing personal information such as Social Security numbers and birth dates on the Web site and in documents for public viewing in courthouse around the state.

The court said the rules were an attempt to balance privacy rights of individuals who use Oklahoma’s court system and public access to courts documents.

Criticism and concerns voiced by people about those rules apparently played a role in the court’s decision to rescind them.

In a brief statement, the Supreme Court said:

“The Supreme Court of Oklahoma is very aware of privacy and identity theft concerns of individuals related to personal data that may appear on the Court’s Web site.

We are cognizant that many businesses and individuals rely on the information court clerks have placed on our Web site. Personal privacy balanced with reliable public information is critical for every free society.

“Due to the very important issues for all concerned, the Supreme Court is hereby withdrawing its Privacy and Public Access order… handed down March 11, 2008, to give the issue further study and consideration.”

by Nick Fishman

We posted a legislative update on employeescreen University last week, detailing a ruling by the State of Oklahoma Supreme Court which would remove identifiers such as dates of birth off conviction records. This is being done to protect the privacy of those who have records, however an unintended consequence of this ruling will leave those who conduct background checks in the state of Oklahoma with no way to confirm that the criminal records they have found actually belong to their candidates. This measure would effectively kill the ability of employers (and anyone else who searches public records) to conduct background checks.

Interested in getting involved? The National Association of Professional Background Screeners (NAPBS) has developed an advocacy letter for its members to send to the court detailing our concerns. employeescreenIQ as well as hundreds of other Consumer Reporting Agencies have already sent this letter.

NAPBS was kind enough to let me adapt their letter for any employer that was interested in participating as well. I have attached that letter below. All you have to do is insert your name and company name where appropriate, put it in an envelope with a stamp and mail it to the address included on the letter.

Not sure you want to waste the effort? Trust me, I’m the eternal pessimist when it comes to stuff like this. But it actually works. NAPBS alone has positively influenced decisions such as these in states throughout the country. This does work and you can help with very little effort.

State of Oklahoma Advocacy Letter

by Jason Morris

This morning I came across another article regarding new public access rules developed by the Oklahoma Supreme Court.  employeescreenIQ and many members of the National Association of Professional Background Screeners (NAPBS) are working hard to reverse this decision before June when it takes effect.  Background check results would be severely impacted if this policy stands.

Court’s new record policy would affect background screening business

By M. Scott Carter

Transcript Staff Writer

OKLAHOMA CITY — New public access rules developed by the Oklahoma Supreme Court would make it more difficult for companies that do prehiring background checks, officials with those companies said this week.

by Jason Morris

By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

More

by Nick Fishman

This just in from the San Francisco “CRONIC”le (couldn’t help it): the Ninth District Court in San Francisco ruled that a city can’t require all job applicants to be tested for narcotics and must instead show why drug use in a particular job would be dangerous.

I would think that substance abuse is a societal problem and one that employers might choose to be concerned about. It not only affects the obvious things like job performance and company reputation, but some of the things we don’t think about everyday like the cost of healthcare. I can’t believe that the court would not at least allow (not mandate) the city to conduct substance abuse testing if they deemed it appropriate.

Read the full story here . . .

by Jason Morris

As many of our readers know I am very involved with our industry international association, NAPBS. Every year for the past four years we have had a “Washington Fly In” to promote our initiatives and make our congressmen aware of our industry and laws that may be affecting it. This year I had the privilege of doing it again. Last week I spent three days in Washington meeting with various Congressional and Senate Offices in addition to a very productive meeting with the Department of Homeland Security.

Not much is happening during this session of congress due to the upcoming elections but it gave us an opportunity to focus on a few issues that are still pending; Immigration Reform, Privacy Bills, FCRA and the Fair use of Criminal Records.

The current E-Verify program run by the Department of Homeland Security and the Social Security Administration is due to sunset (expire) this calendar year. All signs point to it being renewed. Currently there is a bill supported by SHRM introduced by Congressman Sam Johnson (3rd Dist. - TX) called H.R. 5515 the New Employee Verification Act. The current program, E-Verify is not perfect but it is a good system and is getting better every day. Based on the feedback I received the Johnson Bill is unlikely to go anywhere and will likely die in committee. NAPBS fully supports the re-issue of the E-Verify program and is working with the Department of Homeland Security on ways to improve the program through designated agents.

Other noteworthy bills include:

H.R. 3316 - Identity Theft Protection Act of 2007 (Representative Carolyn Malony)

I had the pleasure of meeting with a few actual members of congress and several senior staffers and chiefs of staff. It was a very productive trip, many of the individuals we met with remembered us from past years. Its important to keep up our lobbying efforts. Many times bills are introduced with unintended consequences for our industry. NAPBS has done an exceptional job at keeping our initiatives on the forefront of their legislation.

by Nick Fishman

I got this from the National Association of Professional Background Screeners’ (NAPBS) Thursday Letter. It provides some insightful updates on a court ruling that held that an employer can use a blanket or template applicant release and that an employer could refuse to hire anyone that did not agree to provide authorization to conduct a background check. No one should be surprised by these rulings. However, the court did provide some guidance on the use of Pre-Adverse Action letters and the timing employers and CRA’s should use when making the ultimate hiring decision. See the excerpt below taken directly from the NAPBS email.

An employer is required to provide a Pre-Adverse Action Letter before taking action against a consumer that is based in whole or in part upon information contained in the consumer report. The unanswered question in the FCRA is: What period of time must lapsed between the sending of the Pre-Adverse Action Letter and the sending the Adverse Action Letter? The FTC has acknowledged that there is no clear standard and that the amount of time that would be reasonable depends upon many factors such as: the nature of the job, how the employer does business etc., but the purpose of this Section is to allow the consumer time to discuss the report with the employer before adverse action is taken. FTC Opinion Letter, Lewis, June 11, 1998.Normally, a few days should be sufficient for the consumer to inform the prospective employer where he believes the criminal record is not his or other information in the report is inaccurate. The law does not require that the employer do anything with the information the consumer provides, but we hope that the employer will be rationale and listen to the consumer. However, some jobs must be filled immediately or the employer will be damaged, e.g. truck driver is needed to haul a load now and there is no time to investigate the dispute but an employer may work with the consumer for the next available position.

 

However, a recent case held that time between the Pre-Adverse Action Letter and the Adverse Action Letter should be a sufficient amount of time so that the consumer can receive a copy of his “draft report” and “correct” any inaccuracy in the report before any decision or action is commenced against the consumer. Beverly v. Wal-Mart Stores, Inc., 2008 WL 149032 (E.D.Va.). In support of it’s position it cited the case of: Kelchner v. Sycamore Manor Health Center, 305 F.Supp2nd , 429, 435 (M.D. Pa. 2004) for the position that there must be enough time to correct the inaccuracy. However, the court in Kelchner did not say that no adverse action can be taken until a dispute has been resolved. Rather, the Kelchner court simply followed the reasoning of the FTC in the Lewis opinion by stating that only a reasonable time needs to pass between the two letters and that such period would not exceed five (5) days. To be accurate, the Kelchner’s court comments are part of what lawyers call “dicta”, that is a discussion that has nothing to do with the real issue being decided by the court. The real issues in Kelchner were two fold. The first was whether an employer can use a blanket release for the authorization of consumer reports that extends over the consumer’s entire period of employment? The court answered that such releases are permissible. The second issue was whether an employer could refuse to hire someone who would not consent to obtaining a consumer report? Again, the court stated that the employer had this prerogative.

 

Thus, the court’s position in Beverly is not supported by the case it cited but that does not change it’s holding that can cause problems for CRAs. In fact, it appears the employer in the case, Wal-Mart, may have attempted to follow the “five (5) day rule” noted in the Kelchner case. Wal-Mart contracted the providing of Adverse Action Letters to it’s consumer reporting agency. In this case, the first letter was mailed on September 1, 2005, and the second letter was mailed on September 6, 2005. However, Labor Day fell between these two dates and the consumer received both letters on the same day. The court held that this raised an issue for the jury to determine whether the process complied with the FCRA. One would assume the jury would be instructed that the time necessary would include the concept that the time must allow for the correction of any disputed information. Clearly, five days would often not suffice. If a court file is not available, which happens from time to time, these type of corrections can take considerably longer than five days.

 

The lesson to be learned in this case is that an automated system that sends out a second letter XXXX days after the first should be flexible to accommodate intervening conditions such as holidays, bad weather etc. and if such occur then the sending of the second letter should be delayed. In this case the Labor Day holiday delayed the delivery of the first letter, essentially depriving the consumer of any pre-adverse action notification. Thus, although the court’s interpretation of the FCRA is subject to substantial criticism, the method to supply Pre- Adverse Action and Adverse Action letters is also subject to criticism.

by Nick Fishman

(I know, long title). Many of you have seen recent articles we’ve written about what employers can and cannot or do and do not say when providing employment verification information on former employees. One of our clients was kind enough to pass along this article, Are You Hiring A Crook written by Mary Beth Guard at Bankersonline.com.

The article focuses on financial institutions who have terminated employees due to fraud or theft in the workplace, but where charges have never been filed. Many employers are scared to divulge such information if asked for fear of a lawsuit from the former employee. Most are unaware that the USA Patriot Act actually affords them the protection they need to warn financial institutions that might consider the individual for employment.

If you work in the financial sector, this article is a must read. I would recommend paying close attention to how this protection can be used and under what circumstances. I was so facsinated by this little know provision in the Patriot Act that I contacted the author and she was only so kind to offer her opinions and advice for how financial institutions can utilize this important protection. One thing that I found unfortunate was the fact that the language in this provision seems to make it impossible for a CRA (background screening organization) to conduct this type of verification on the employer’s behalf.

Enjoy the article.

by Jason Morris

In the past my articles have centered around industry issues and identity theft. I just came across this article on Yahoo and thought it was very interesting. I think this type of case could make it to the U.S. Supreme court as it could have ADA and possible EEOC implications. Obviously, drug screening and substance abuse testing in the workplace is a hot issue today and certainly a service offered by employeescreenIQ. My passion for this particular issue could be argued on both sides. I am a strong supporter for substance abuse testing in the workplace but also understand and support the Americans with Disabilities Act. I am not sure where this one will go, but it will be an interesting ride nonetheless.

Medical Marijuana users can be fired: California Supreme Court

By Adam Tanner Thu Jan 24, 6:14 PM ET

SAN FRANCISCO (Reuters) - Companies can fire employees who use marijuana for medical reasons even if California law allows such use because federal law prohibits it, the state’s Supreme Court ruled on Thursday.

“Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions,” Justice Kathryn Werdegar wrote.

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