EmployeeScreenIQ Blog

Kudos to the National Association of Professional Background Screners (NAPBS) for passing and launching the industries first accreditation program.  Since before I was Co-Chairman of NAPBS hundreds of people have put in thousands of tireless hours to get this program off the ground.  The Background Screening Credentialing Council (BSCC) was formed two years ago to take the hard work that was done previously and implement it into reality.  I couldn’t be more proud of my competitors being able to work together to finally get this done!  EmployeeScreenIQ is looking forward to the challenge of going through this process in the coming year!

New Accreditation Effort Introduces a Self-Regulating Program Poised to Change the Industry

MORRISVILLE, N.C., Feb. 24 /PRNewswire/ — The National Association of Professional Background Screeners (NAPBS®) announced today they will be launching the Background Screening Agency Accreditation Program (BSAAP), the first ever industry-specific background screening accreditation program at the opening ceremonies of the NAPBS 2010 Annual Conference on March 7th in San Antonio.

Each year, U.S. employers, organizations and governmental agencies request millions of consumer reports to assist with critical business decisions involving background screening. Background screening reports, which are categorized as consumer reports, are currently regulated at both the federal and state level.  Since its inception, NAPBS has believed that there is a strong need for a singular cohesive industry standard and created the BSAAP. Governed by a strict professional standard composed of requirements and measurements, the BSAAP is positioned to become a widely recognized seal of approval that brings national recognition to background screening organizations (also referred to as Consumer Reporting Agencies). This recognition will stand as the industry “seal” representing a background screening organization’s commitment to excellence, accountability, high professional standards and continued institutional improvement.

“The BSAAP is the industry’s primary vehicle for quality assurance, self-regulation and public accountability,” said Tracy Seabrook, CAE, executive director of NAPBS. ”Developed and sustained by background screening professionals, the BSAAP reflects, reinforces, and promotes best practices, institutional ethics, and the highest standards of background screening operations.”

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This week the National Association of Professional Background Screeners (NAPBS) wrapped up its Annual Mid-Year Meeting and Exposition.  What started several years ago as a way for the Board of Directors and various committees to get together has turned into a full blown conference.

There are some very serious issues our industry is dealing with today.  For starters, Barney Frank (D-Mass) has introduced H.R. 3126 which will create the Consumer Financial Protection Agency (CFPA).  NAPBS was successful in getting Consumer Reporting Agencies (CRA’s) excluded from this agency, however, we have now been put back in.  Being regulated under two agencies (The FTC and CFPA) would severely impact our industry and employers across the US.

Secondly, NAPBS is working hard to launch our Accreditation program in the next six months.  Currently in beta test the program will raise the bar in our industry and show law makers we are serious about doing things properly.  As a former Co-Chairman and current member of the Background Screening Credentialing Council (BSCC) I couldn’t be more excited about the launch.

I had the pleasure of sitting in on many exciting education sessions along with meeting some great people.  NAPBS continues to shine as the premier background screening association!  Looking forward to our annual conference in San Antonio in March 2010.

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The following is being reported to us via the National Association of Professional Background Screeners (NAPBS)

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized.  Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES: Comments must be submitted not later than September 18, 2009.

What led up to the Rescission of the Rule?
As stated in the Federal Register. Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.

On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. AFL-CIO v. Chertoff, D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs’ motion for preliminary injunction. AFL- CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction).

The court raised three issues regarding DHS’s rulemaking action implementing the No-Match final rule: Whether DHS had (1) supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and (3) violated the Regulatory Flexibility Act, 5 U.S.C 601 et seq., by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court’s injunction.. See e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined.

Basis for the Administration’s Policy Change?
As stated in the Federal Register notice.  On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.

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We recently sat down with Tracy Seabrook, Executive Director of the the National Association of Professional Background Screeners (NAPBS).  Tracy offered a snapshot into the state of the background screening industry and also discussed the association’s launch of their first-ever accreditation program.

Check it out!

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This from the state that has brought employers the 10 day background check . . .  The state of New Hampshire has announced plans to raise court access fees to $20.00 per name for court records.  One might understand the new fee structure if the state agreed to staff courts to accommodate a more reasonable turn around time.  Alternately, the state might consider allowing access to public records without the help of a court clerk.

This fee is set to take effect on August 1, 2009.  The National Association of Professional Background Screeners is encouraging its members and their affected clients to oppose this policy.

If you are interested in participating, you can send a letter or email the New Hampshire Administrative Office of the Courts at:

New Hampshire Administrative Office of the Courts
Director Donald Goodnow & the Administrative Council
Telephone:  (603) 271.2521, Extension 5
Fax:             (603) 513.5454
Email:          lmcmanis@courts.state.nh.us

Here is the message we have already sent to the state.  Feel free to borrow or modify as you see fit.

To Whom it May Concern:

I am writing to oppose your new order to increase court fees for criminal record searches.  This fee increase will have a severe impact on employers in your state and others.  Companies seeking to hire individuals from New Hampshire will not be able to afford the background check.  This could put your citizens at peril of not getting a job they are otherwise qualified for.   Our fear is employers will simply skip good candidates because they are too expensive to screen.  In these tough economic times it is important to ensure everyone has an equal chance to gain employment.

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This week I had the pleasure of attending the 2009 National Association of Professional Background Screeners (NAPBS) annual conference.  The conference was held in St. Louis and ended yesterday April 22nd.  Despite the economy, this years’s conference was a huge success.  NAPBS is getting ready to launch it’s new Accreditation Program titled, Background Screening Agency Accreditation Program!  Many of this years meetings focused on this revolutionary new program which is centered around raising the bar of the background screening industry!

I personally attended many great seminars including; Best Practices in International Screening, What CRA’s need to know about Title VII – The Road From GRIGGS to SEPTA, International Compliance Featuring Safe Harbor, Managing Client Expectations for International Background and Many more.  I had to opportunity once again to speak at this years conference.  I co-presented at the History of NAPBS seminar and sat on a few panels regarding the upcoming accreditation program.

The conference ended with an exciting Key Note address from Joel Winston, Associate Director of the Division of Privacy and Identity Protection of the Federal Trade Commission (FTC). Joel gave us insight into Red Flag Rules, Social Security Numbers, Identity Theft, Fair Credit Reporting Act (FCRA) and more!

It was great to hear some exciting feedback on employeescreen University and our Blog.  The intent of these two vehicles was to educate the marketplace but it seems to have become quite the educational portal for our industry.  Many competitors complimented us on a job well done with the University.

I look foward to the mid-year meeting in Atlanta, GA!

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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 had the honor of representing the National Association of Professional Background Screeners (NAPBS) along with 20 other colleagues from the screening industry on their annual Washington DC lobbying event.  We had a busy schedule of meetings over a two day time period highlighted by sessions with the EEOC, FTC and officers of our nation’s senators and congressmen.

We met with staffers from the following legislators: Senator Chuck Grassley (Republican-Iowa), Senator Kay Bailey Hutchison (Republican-Texas), Senator Mark Warren (Democrat- Virginia), Congressman Sam Johnson (Republican-Texas), Congressman Rodney Frelinghuysen (Republican- New Jersey), Senator Charles Schumer (Democrat- New York), Sentor Orrin Hatch (Republican- Utah), Senator Kay Hagan, Democrat, North Carolina, Senator Arlen Specter (Republican- Pennsylvania), Congressman Lamar Smith (Republican- Texas), Senator Byron Dorgan (Democrat- North Dakota), Senator Patrick Leahy (Democrat- Vermont), Congressman James Moran (Democrat- Virginia), Senator John Kerry (Democrat- Massachusetts), Senator Dianne Feinstein (Democrat- California), Senator Benjamin Cardin (Democrat- Maryland), Senator John Ensign (Republican- Nevada) and Senator Johnny Isakson (Republican- Georgia).  Our meetings primarily focused on three core issues which are being addressed in upcoming legislation:

Senate  Bill 163 (Child Protection Improvements Act of 2009)- Calls for the development of a mandatory background screening process for child care givers (day care, teachers, camps, etc.).  As an industry, we fully support this legislation.  However, we have concerns about the type of background check that the bill calls for, particularly its reliance on the FBI Criminal Database and state criminal record repositories.  It is a commonly held misconception that these two resources are the most accurate and reliable resources for conducting background checks.  In reality, there are far more effective methods for determining whether someone has been convicted of criminal activity.  The most thorough, accurate and reliable method being a county criminal record search in all counties where the subject has resided under all names used complemented by a National Criminal Record Search which includes a multi-jurisdictional Sex Offender Registry Search.

Senate Bill 141 and House Resolution 122 (Protecting the Privacy of Social Security Numbers Act of 2009)- This bill is aimed at curbing identity theft and calls for a limitation on how Social Security Numbers can be used in commercial situations.  Such measures include restricting access to public records which contain this information.  There is a provision to protect the continued permissible use of personal identifiers for legitimate purposes such as background screening and our efforts focused around reinforcing the need for this language and educating staffers on the importance for these identifiers.

Extension of E-Verify Program- This internet-based system is operated by the Department of Homeland Security and the Social Security Administration and allows employers to electronically verify the employment eligibility of their employees.  House Resolution 1105 reauthorized the program through 9/30/09 and we support further extension of this important government program.

Meeting with the EEOC

This was a truly enlightening experience.  We met with Carol R. Miaskoff who is an Assistant Legal Counsel for the agency.  Carol shared with us the role of the EEOC and its stance on background checks.  She was very clear that the EEOC did not have a problem with background checks as anexercise proper due diligence.  Where they do take exception is with bright line policies such as “do not hire anyone with a criminal record”.  They believe that such policies would have a disparate impact on minorities.  We spent a great deal of time discussing El v. Septa as it will continue to be an important force in future guidelines on background screening.  At the end of the day, the EEOC wants employers to demonstrate job relatedness, the nature of the offense, whether the candidate was a repeat offender and how long ago the crime was committed.

Meeting with the FTC

I was not there for this meeting but I understand that much of the meeting focused on the privacy issues previously mentioned on SB 141 and HR 122.

I was a truly an enlightening experience which provided much insight into our legislative process.  I am confident that the work we accomplished in just two days will have a positive impact on our industry and on employers that rely on the use of employment background checks.

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On Tuesday, March 10th, the highly controversial Employee Free Choice Act (EFCA) was introduced in both the US Senate and House of Representatives.  The bill (H.R. 1409, S. 560), which is sponsored by House Education and Labor Committee Chair Rep. George Miller (D-California) and Senator Tom Harkin (D-Iowa), would amend federal labor laws in several critical areas, significantly impacting how employers address union organizing activity.

As has been reported widely in the media, EFCA allows unions to become employees’ bargaining representatives on the basis of a “card check” process, thereby depriving employees of the right they presently have to vote in secret-ballot elections. A lesser-known, but equally important, provision of the bill mandates arbitration of initial collective bargaining agreements when the parties cannot come to agreement on their own. EFCA also provides triple back pay to employees who are the victims of employer unfair labor practices (”ULP’s”) during an organizing campaign or in the period leading up to a first contract, allows for civil fines upon employers of up to $20,000 per violation for willful and repeated ULP’s committed during the same time period, and enhances the ability of the National Labor Relations Board to obtain injunctions in federal court against employers with respect to organizing campaigns or initial contract negotiations.

Supporters of EFCA claim that the legislation would make it easier for employees to organize, which they believe would lead to greater protections for workers. Opponents argue that the bill would violate workers’ rights and cause substantial economic harm to businesses and consumers. Congress is split on EFCA, mainly along party lines — with Democrats for the most part favoring the legislation and Republicans generally opposing it. President Obama supported previous attempts to enact EFCA when he was in the Senate, and he repeatedly endorsed the legislation during last fall’s presidential campaign.

While passage of the legislation in the House is almost assured, the critical question is whether EFCA supporters have 60 votes to overcome an anticipated filibuster by opponents of the legislation. In fact, many believe that what happens to the bill may hinge upon the as-yet-unsettled Senate race in Minnesota between Republican Norm Coleman and Democrat Al Franken.

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I will be in Washington DC lobbying for the background screening industry next week.  As a founding member and past co-Chairman of the National Association of Professional Background Screeners (NAPBS), you can be sure this will be discussed.  This issue is likely to be raised not because it has anything to do with background checks, but because we are all employers!

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