by Jason Morris

by Jason Morris

We were just notified about this from the Executive Director of NAPBS®. The good news is NAPBS® has been successful 100% of the time when these issues arise. This Bill was passed 46 to 17 by the Rhode Island House.

We have written about these issues many times before. We support ex-offenders and their rights to enjoy gainful employment. In fact, GOSO (Getting Out and Staying Out) is one of our corporate philanthropy’s. We just think employers have the right to know! Employers have the responsibility to ensure a safe working environment for their employees, customers and vendors. Its a slippery slope when putting forth legislation such as this. My hope is that the RI Senate quashes this effort, if not, a Veto from the Governor is also possible. Please take the time to write to the RI Legislatures about this issue!

House OKs bill to destroy criminal records

By Katherine Gregg
Journal State House Bureau

PROVIDENCE — Advocates for convicted criminals scored a victory on Smith Hill yesterday.

Despite objections from the attorney general, the state police and the governor, the House voted 46 to 17 for a bill to quash and destroy the records of criminal cases in which the accused was given a deferred sentence, usually in exchange for sparing the state a trial by pleading no contest or guilty to a crime.

The bill, which is now headed to the Senate, calls for the automatic destruction of all such records at the end of the deferral period — which usually runs five years, regardless of how serious the crime or the criminal history of the offender as long as he or she stayed out of trouble in the interim.

The bill sailed through the House with no debate yesterday after a heated — but short-circuited debate earlier this week — in which proponents assured their colleagues it was aimed at helping people remove from their records youthful indiscretions that were keeping them from moving ahead in life, school and jobs, and opponents noted the bill goes much further than the state’s existing expungement law in that it is not limited to nonviolent crimes by first-time offenders.

Beyond that, critics argued that it could be used as a legal club to try to prevent newspapers from publishing facts that the public already knows about crimes — or perhaps should know — if they involve candidates for a job, including public office. Current state law bars people with certain felony convictions from obtaining state licenses to work in nursing, social work and auto repair: this would provide a way around that.

“So now we are rewriting history and telling the newspaper they can’t refer to something that everybody knows about?” Rep. Laurence Ehrhardt, R-North Kingstown, asked rhetorically.

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by Nick Fishman

Thanks to our good friends at NAPBS for updating us on this recent announcement from United States Citizenship and Immigration Services (USCIS) concerning the E-Verify program. You might recall that E-Verify is the former “Basic Pilot Program” that allows for Instant Confirmation of Employment Eligibility.

USCIS ANNOUNCES ENHANCEMENTS TO E-VERIFY PROGRAM Improvements Will Focus on Decreasing Mismatch Rates for Naturalized Citizens
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today improvements to the E-Verify employment authorization program that will reduce an already low mismatch rate, while also streamlining and increasing the effectiveness of the overall program.
Today’s announcement comprises the first two phases of an overall three-part enhancement for
E-Verify aimed at decreasing the mismatch rate for naturalized citizens.
“Less than one percent of all work-authorized employees receive a tentative nonconfirmation through E-Verify,” said USCIS Acting Director Jonathan Scharfen. “While this is a very small percentage, we believe every employee who is authorized to work in the United States should be instantly authorized by the program. We’re confident that the enhancements we’re launching today will help us achieve that goal.”
Starting today, the E-Verify system will include naturalization data, which will help instantly confirm the citizenship status of naturalized U.S. citizens hired by E-Verify employers. Naturalized citizens who have not yet updated their records with the Social Security Administration (SSA) are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.)
E-Verify also will now include real time arrival data from the Integrated Border Inspection System. This additional data source will reduce the number of immigration status related mismatches for newly arriving workers who have entered the country legally.
USCIS also plans to initiate citizenship status records information sharing with SSA to further help prevent tentative nonconfirmations from occurring. This effort will improve the efficiency of E-Verify by providing to SSA with the most accurate and timely citizenship status information. E-Verify also plans to check against Department of State passport records in the near future to even further reduce mismatches.
More than 64,000 employers participate in E-Verify with approximately 1,000 new enrollments weekly. The Web-based system allows participating employers to electronically verify the employment eligibility of newly-hired employees. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program originally developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA.
Additional details on the program are available on the E-Verify Web site at www.uscis.gov/e-verify.
– USCIS –

by Jason Morris

This week I attended the NAPBS (National Association of Professional Background Screeners) conference in New Orleans, LA.  This years conference was a huge success!  Over 650 attendees came to learn about such issues as: FCRA Compliance, International Screening, EEOC Title VII, Privacy, State Record Compliance, I-9 E-Verify and much more.  I myself gave a presentation on the History of NAPBS and the Background Screening Industry.

This conference also marked then end of my tenure on the NAPBS Board of Directors.  As past Co-Chairman I have sat on this board since its inception.  I will remain an active board member as an ex-officio and contribute to various committees.

employeescreenIQ will continue to post valuable industry information on employeescreen University!

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 Jason Morris

The American Society for Industrial Security (ASIS) has re-posted their Pre-employment Background Screening Guidelines for public comment through April 16th 2008. I had the honor of working on the original committee that published these guidelines in 2005 and 2006. Currently NAPBS is working with ASIS on these revisions. It appears that comments are not limited to ASIS members are are open to the public. employeescreenIQ staff members will be reviewing these guidelines and commenting on any issues we feel are outdated in regard to Background Screening, FCRA and, or State Law Compliance. It is still unclear whether or not international screening will be included in the updates.

by Jason Morris

A few weeks ago I spent time in Washington DC lobbying on behalf of our industry. Included in this NAPBS “Day on the Hill” was a very productive meeting with the Department of Homeland Security (DHS). DHS along with many of our members came up with some great ideas on how to expedite Tentative Non Confirmations (TNC’s) and other issues facing employers using E-Verify. I came across the following article this morning while reading BLR’s HR section, a great resource for HR Professionals and Employment Lawyers. E-Verify and other automated I9 Services are being used by approximately 5% of U.S. employers, this number will go up significantly in the coming years.

March 24, 2008

Gov’t Adjusts No-Match Rule, Aiming to Address Court Ruling

The U.S. Department of Homeland Security (DHS) has released a Supplemental Proposed Rulemaking for the No-Match Rule previously issued on August 15, 2007, aiming to address three issues cited in a decision of the U.S. District Court for the Northern District of California blocking the original rule. The August 2007 rule outlined steps an employer should take if it receives a letter indicating that the information submitted for an employee fails to match the government’s records.

Specifically, the court questioned 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 authorized to work in the United States; (2) exceeded its authority by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA); and (3) violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.

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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

employeescreenIQ president, Jason Morris and I have agreed to participate in the National Association of Professional Background Screeners’ (NAPBS) Legislative Fly-In in Washington DC the first week of March. The intent of the event is to raise awareness of the association and the issues that affect CRA’s and those that utilize background checks in their hiring process with our nation’s legislators. I’ve always had a fascination with politics, so I look forward to participating. I’ll keep you posted on what issues are discussed and who we meet with.

(I know, we’ve used similar posting titles before, but I could resist.)