Total Articles: 26
5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit
Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?
The FTC Staff Report on "40 Years of Experience with the Fair Credit Reporting Act" Illuminates Areas of Potential Class Action Exposure for Employers
In July 2011, the Federal Trade Commission released a comprehensive Staff Report discussing "40 Years of Experience with the Fair Credit Reporting Act." Employers that use background reports for employment purposes can mitigate litigation risks by familiarizing themselves with the Staff Report, including the risk of class action claims under the Fair Credit Reporting Act.
EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records
In July 2011, the Equal Employment Opportunity Commission (EEOC) held its latest meeting on the topic of protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964. The full Commission heard remarks from the panelists about "Best Practices From Employers" and related topics.1 Although the EEOC clearly has renewed its focus on the hiring process, including Title VII protections for ex-offenders, many employers were disappointed that the EEOC did not reveal at the meeting whether it will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII.2 Notably, one of the Commissioners referenced at the hearing the U.S. Court of Appeals for the Third Circuit's decision in El v. South Eastern Pennsylvania Transportation Authority (SEPTA),3 in which the court expressly criticized the 1987 Policy Statement as "vague."
A Helpful Reminder on Social Media and Background Checks
I recently ran across this helpful blog post from the Business Center Blog on the Federal Trade Commission’s Bureau of Consumer Protection website: The Fair Credit Reporting Act & social media: What businesses should know. The post reminds readers that when social media content is used as part of a company’s background check process, companies need to make sure they do not accidentally run afoul of the Fair Credit Reporting Act.
FTC Approves Social-Media Background Searches
Employment-related background searches are commonplace today. For the past few years, there has been quite a bit of controversy over background searches that include searches of social-networking sites, such as Facebook and Twitter, for information about potential job candidates.
Skeletons in the Closet: The Legal Issues of Conducting Background Checks and Inquiries
As the economy rebounds, many employers affected by the recession are hiring again. The last time employers searched for talent when recruiting was being conducted at its current pace, the world of employee screening was very different. Philadelphia hadn't yet banned the "box;" there were not over 500 million Facebook users or multiple states enacting credit check laws. To avoid legal landmines, now is the time for employers to brush up on the basics of conducting background checks and inquires.
Are Employment Class Action Arbitrations and Lawsuits Dead?
On April 27, 2011, the U.S. Supreme Court held, in a 5-4 decision, that the purpose of the Federal Arbitration Act (FAA) is to “… ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” AT&T Mobility LLC v. Concepcion. This case involved a husband and wife (the Concepions) who were customers of AT&T Mobility, in California, who brought a class action arbitration claim against AT&T Mobility (arguably in accordance with the terms of the customer’s contract with AT&T Mobility). However, as the Supreme Court noted “The contract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ ‘individual capacity, and not as a plaintiff or class member in any purported class or representation proceeding.’”
Retail Industry: Better Double Check Your Use Of Credit Checks
Colorado, Maryland and Pennsylvania are the latest to join a growing number of states that have taken steps to limit an employer's ability to perform credit checks on its employees. So far, only four states have actually enacted laws limiting use of credit checks for employment purposes. But approximately 10 others have introduced similar legislation aimed at prohibiting employers from using information contained in an employee's credit history to deny employment, or basing employment decisions (such as transfers, reassignments, promotions or terminations) on such information. Additionally, at least two states already prohibit the use of credit checks for non-financial jobs.
KAPLAN GETS TESTED
In my May 13, 2010 column,"What's in Your Wallet, Job Applicant," I addressed increased government scrutiny of employers who rely on credit checks to screen applicants. The Equal Employment Opportunity Commission has decided to turn up the heat.
Supreme Court Rules Government Contractors Now Subject to Background Checks
The U.S. Supreme Court has ruled unanimously that the federal government may conduct wide-ranging background checks of workers employed by government contractors. NASA v. Nelson, No. 09-530 (Jan. 19, 2011).
High Court Rules NASA's Background Checks On Contractors Are Constitutional
This morning, with Justice Samuel Alito writing an opinion supported by eight justices, the U.S. Supreme Court held that the federal government's inquiries on two forms used to conduct background investigations on federal contractors do not violate a constitutional right to informational privacy. According to the Court, the inquiries were reasonable in light of the government's interest in identifying capable employees to faithfully conduct its business and the collected information was protected by the Privacy Acts nondisclosure requirements.
Supreme Court: Public Employers May Ask Comprehensive Background Questions Of Employees
In a rare unanimous decision, the Supreme Court held on January 19, 2011 that NASA's background inquiries of its contract employees regarding drug treatment or counseling and other negative "general behavior or conduct" of its contract employees were tailored to the government's interests in managing its workforce and therefore did not violate the employees' right to informational privacy. The Court ducked the issue of whether such information is actually protected by any Constitutional right to privacy, leaving that question open for another day.
Is Creditworthiness a Protected Characteristic? Yes, says EEOC.
EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplans alleged consideration of candidates credit histories during the hiring process. EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidates credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity. In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.
Employer's unwritten policy regarding criminal background checks sufficient to overcome summary judgment.
The 8th U.S. Circuit Court of Appeals has determined that a companys unwritten policy against hiring applicants with theft-related convictions was sufficient basis to exclude a minority applicant from a position with the company.
No Credit? No Problem! (The Sequel)
In todays economic climate, employers often want to analyze applicants credit reports. A poor credit history may indicate problems that an employer would prefer to avoid. But using credit reports legally requires a thorough understanding of the various federal and state laws that can come into play in this area.
Employers Relying on Background Checks Face Increased Scrutiny.
Stengart sued Loving Care Agency, Inc., her
former employer, alleging that she had been
discriminated against on the basis of her gender,
religion and national origin. Loving Cares attorneys
arranged a scan of the laptop that the Agency
provided to Stengart for work-related purposes, and
they recovered several e-mails that Stengart had
exchanged with her attorney. These e-mails were
sent from Stengarts personal web-based Yahoo
e-mail account, but were saved in the laptops
temporary Internet cache.
Notice to Job Applicants of Intent to Search Social Networks.
Employers who want to use include social-networking sites into their background-check process when considering potential job candidates often ask whether they have to notify the applicant in advance that his or her Facebook page may be viewed during the hiring process. Unless you have a third party perform the Facebook search, the answer is no. Employers do not legally need the consent of a potential employee to conduct an Internet search and to view what is otherwise publicly available. But the mere fact that something is not legally required does not necessarily mean that its not a good idea. In fact, Im an advocate of notifying applicants not only that you intend to review the individuals online presence, including his or her presence on social networks, but also the specific items that youll be looking for when you do conduct the search.
Background Screening Update: EEOC Issues Letter Cautioning Employers Against Discriminatory Use Of Credit Checks; Legislation May Soon Follow.
Employers routinely conduct credit checks as part of pre-employment screening. Sometimes this information is used to make hiring decisions. Can an applicant who is denied a job based on a credit report claim discrimination?
WHAT'S IN YOUR WALLET, JOB APPLICANT?
Recent economic data suggest the job market is thawing. With high unemployment persisting, many employers will have several candidates applying for each new job opening.
EEOC Issues Advisory Opinions on Possible Disparate Impact in Credit Checks, Education Requirements.
On March 29, 2010, the EEOCs Office of Legal Counsel released two informal discussion letters addressing disparate impact in credit checks and education requirements.
Check Your State Law Before Credit-Checking Your Employees.
If the Illinois State House of Representatives has its
way, Illinois will join a small but growing number of
states prohibiting employers from inquiring about or
using an employees or applicants credit score in
employment decisions. As employers increasingly
rely on credit checks to manage workforces, they
should be mindful of existing and emerging
restrictions like the ones being considered in
Illinois.
Employment Screening Check on Megans Law Website Leads To Sexual Abusers Lawsuit.
William Mendoza, a convicted sex offender, applied for a job in August 2007. After Mr. Mendoza submitted his application, ADP Screening and Selection Services, Inc. conducted a background search on him. As part of the background search, it accessed the California Megans Law website and discovered that he was a sex offender. ADP passed this information on to the prospective employer. Mr. Mendoza did not get the job.
More Employers Searching Online for the Dirt on Candidates.
According to a study by Microsoft, 70% of HR professionals have turned down job candidates because of the candidates online activity and reputation. On the flip side, approximately 60% of Internet users admit that their online behavior may affect their professional and personal lives. But only 15% of them actually think of the potentially negative impact when surfing the Web and posting content.
BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED.
Employers increasingly are relying on credit and background checks in the hiring process. Employers want assurances that their employees are honest and trustworthy. Internal investigations of certain misconduct allegations are now required by anti-discrimination laws and others, such as Sarbanes-Oxley. At the same time, surveys show resume fraud is rampant. Job references often wont provide information about former employees other than name, rank and serial number. With a bad economy, huge student loan liabilities, and the mortgage crisis, potential employees may appear to be untrustworthy with credit.
Does Your School Make the Grade in Conducting Background Checks?
You've just admitted an adorable 5 year-old child to Kindergarten. The next day, you receive an anonymous message that the child's mother is on the state's sex-offender website. You check and confirm that the information is correct. How should a school handle this situation? Must you act? Is it enough to eliminate the parent from campus? What about the inevitable sleepover? Must you notify the school community of the parent's background?
As discussed below, there are no easy answers to these issues. The problem that schools face with more frequency today is how to determine which persons should be allowed to be on the school's campus, whether as an employee, contractor, or parent. In addition to complying with various state laws and accrediting guidelines that typically address employees and contractors, schools must increasingly ask: Should we require more information about our parents? If so, under what circumstances? And if we don't, what are the consequences?
Employee Privacy: New Rules Affecting Disposal of Background Check Information.
For some years now, the federal Fair Credit Reporting Act (FRCA) and parallel state laws, have restricted when and how an employer may conduct background checks on applicants and employees and how such information may be used. Generally, restrictions apply when the employer conducts background checks through an outside entity. Restrictions do not generally apply when an employer obtains information directly, such as by calling a school or university to verify that the applicant or employee did in fact attend and graduate. Notice and consent requirements must be followed when an employer decides not to hire an applicant or takes action against an employee based on the results of a background check.
