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NAPBS OFFERS TIPS FOR SCREENING JOB CANDIDATES IN 2013

NAPBS Offers Tips for Screening Job Candidates in 2013

Accuracy in employee background screening is critical in today’s business environment

Washington, D.C. (November 28, 2012) – As employers begin to plan business strategies for the upcoming year, there is no question that personnel needs will be high on their to-do lists. To help business owners and human resource managers make sound hiring decisions, more and more are turning to pre-employment background screening to ensure they find the right people for the right positions.

Each year, business owners, corporate human resources departments, government agencies and nonprofits successfully partner with professional background screening companies to conduct millions of pre-employment and volunteer background checks. Not only do background checks help employers find the most qualified workers, but they also play an important role in helping employers meet their legal responsibilities and provide a safe environment for existing employees and the customers they serve.

The National Association of Professional Background Screeners (NAPBS) and its members are committed to ensuring the highest degree of accuracy and professionalism when it comes to background checks. To that end, NAPBS offers the following best practices intended to benefit employers and job seekers who are planning for 2013:

1. Be Complete: Conduct a comprehensive background search to avoid negligent hiring. Relying on partial information or information that may be out of date can be as risky as not conducting a thorough background check at all.

2. Be Efficient: Time is a precious commodity especially for recruiters. Look for ways to utilize technology to help create efficiencies. Talk with your background screening provider about ways to improve your process to save you money and time.

3. Be Thorough: As an employer, you have certain responsibilities under the law. Make sure that all background screening practices meet federal and state regulations as well as industry requirements. Be mindful of the new Equal Employment Opportunity Commission criminal guidelines and the Fair Credit Reporting Act.

4. Be Analytical: Consider job responsibilities when screening candidates. Go beyond basic background information and assess job relatedness and business necessity.

5. Be Consistent: Develop a method for a targeted level of screening for each open job position to align with business needs and job relatedness.

Accuracy in background screening is the number one priority of NAPBS members who continually strive to maintain their high accuracy rates. A recent informal poll of NAPBS member companies, including both large and small companies, reaffirmed this commitment. The poll showed accuracy rates of more than 99 percent with a small fraction requiring changes as a result of consumers disputing their reports.

Over the course of 2013, NAPBS member companies will continue to work to refine best practices and compliance information for their clients. The National Association of Professional Background Screeners encourages employers and job seekers alike to prepare themselves by taking advantage of the useful information available on the Association’s web site www.napbs.com and to contact NAPBS with any questions you may have.

 

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About NAPBS

The National Association of Professional Background Screeners (NAPBS) is the leading national resource for issues related to the background screening industry. NAPBS promotes and advocates for ethical business practices and fosters awareness of privacy rights and consumer protection issues. NAPBS is the foremost leader in the movement toward establishing generally accepted and reliable standards for background screening professionals and organizations.

FORMER ARTS CENTER EMPLOYEE ACCUSED OF STEALING OVER 1 MILLION DOLLARS

Woodruff Arts Center officials said Tuesday that a former employee submitted $1.438 million in fraudulent invoices over the last five years.

They didn’t find out about it until the unnamed “mid-level” administrator, employed since 2004, left the center at the end of October for reasons unrelated to the alleged embezzlement, said Woodruff President and CEO Virginia Hepner.

A few days after his departure, some “suspicious” invoices were brought to Hepner’s attention and an internal investigation was conducted. It quickly became apparent that the departed administrator had bilked the arts center out of a substantial amount of money, officials said at a Tuesday morning news conference.

“This individual was able to find a weakness in our interior controls,” said Woodruff Board Chair Larry Gellerstedt. “No one here knew any of this was going on.”

According to Hepner, the alleged thief acknowledged culpability when confronted with evidence uncovered by the arts center’s internal investigation.

The suspect has not been charged but Hepner said she has alerted the U.S. Attorney’s Office and plans to share findings with prosecutors….Continued

 

For the full story, please visit: http://www.ajc.com/news/news/local/employee-accused-of-stealing-more-than-14-million-/nTGdM/

COLORADO APPEALS COURT CASE DEBATES QUESTION OF OFF-DUTY MARIJUANA USE

A case pending before the Colorado Court of Appeals could have a big impact on whether employers will be able to fire workers who smoke marijuana off duty.

The case concerns a former Dish Network telephone operator and medical-marijuana patient who was fired after testing positive for pot, even though there was no evidence he was impaired on the job. The operator, Brandon Coats, says it is against state law to fire someone for doing something off duty that is legal.

While Coats’ case concerns medical-marijuana law, it is drawing extra attention after the passage of Amendment 64, which legalized marijuana use for everyone age 21 and older in Colorado. Some employers said during Amendment 64’s campaign that they worried that the measure would prevent them from enforcing workplace drug policies that prohibit any marijuana use at all.

What Coats’ case may answer: Does it?

To read more, please visit: http://www.denverpost.com/recommended/ci_22065335#ixzz2DMMfWJ2I

Happy Thanksgiving!

Mega Group Online will be closed Thursday, November 22, 2012 and Friday, November 23 in observance of the Thanksgiving holiday. 

 Our office will reopen on Monday, November 26, 2012 at 8:30 a.m. PST.

 Have a safe and happy holiday!

CALIFORNIA JUDGE RULES AGAINST CLOTHING CHAIN CLASS ACTION SUIT

A California judge has handed down a decision that could have been very costly for clothing retailer Wet Seal. The company is facing a wage and hour action that accuses it of not reimbursing its employees properly for  out-of-pocket expenses.

The judge declined to allow this case to be certified as a class action. Had that happened, the allegations would have been opened up to something like 12,000 employees.

The suit alleges that Wet Seal forced employees to buy clothing from the chain and did not reimburse them for the cost, and also did not reimburse them when they used their own vehicles to drive from one store location to another on company business.

According to the California Labor and Employment Law blog, the young women’s clothing chain, which has about 500 locations across the country, argued that there is a standing policy of reimbursement for travel expenses. Wet Seal’s lawyers presented declarations from employees stating that they were routinely reimbursed according to that policy.

Also, the judge in this case heard statements affirming that employees were asked to dress in the style that was consistent with Wet Seals’ product line but not necessarily buy their outfits from Wet Seal. And, if they chose to shop there, they would have received a generous employee discount.

 

To read more, please visit http://blog.pe.com/economy/2012/11/15/workplace-judge-rules-against-wet-seal-class-action/

ENFORCEMENT OF NEW CALIFORNIA HUMAN TRAFFICKING LAW BLOCKED BY JUDGE

A federal judge has temporarily blocked enforcement of a provision in a just-enacted California state law that requires all registered sex-offenders to immediately turn over the all of their Internet identifiers and the names of their Internet service providers to local police or sheriff’s departments.

The temporary restraining order comes in response to a lawsuit filed Wednesday in the U.S. District Court for the Northern District of California by the Electronic Frontier Foundation and the American Civil Liberties Union Foundation of North California.

The lawsuit, filed on behalf of two John Doe plaintiffs, sought the immediate striking down of the provision in the newly enacted Californians Against Sexual Exploitation (CASE) Act, which was enacted Tuesday when California voters overwhelmingly approved Proposition 35.

In granting the Temporary Restraining Order, U.S. District Court Judge Thelton Henderson said the plaintiffs have “raised serious questions about whether the challengedsections of the CASE Act violate their First Amendment right to free speech and other constitutional rights.”

The CASE Act increases criminal penalties for human traffickers, which it defines as anyone who forces people into felony crimes such as prostitution or forced labor or are involved in the creation and distribution of child pornography even if the offender has no actual contact with the minors depicted.

Penalties for such crimes are dramatically increased under the new law.

CASE increases the maximum prison sentence for labor trafficking from five years to 12 years. The maximum sentence for sex trafficking crimes involving adults now fetches 20 years versus the previous five-year maximum prison sentence. Those convicted of trafficking in minors can now face up to life in prison; the previous maximum sentence for that crime was eight years.

The EFF and ACLU are challenging a provision that requires all registered sex offenders in the state to give their e-mail addresses, user names, screen names, and all “other personal identifiers for Internet communication and activity” to local law enforcement agencies.

The law requires that registered sex offenders notify authorities within 24 hours of creating new email accounts, changing online names or their ISPs or  face years in prison.

The EFF contends that the provision immediately affects more than 73,000 Californians who are registered as sex offenders.

In the complaint, the EFF and ACLU say the provision is too broad and impacts people with decades-old convictions for relatively minor misdemeanors or whose crimes are unrelated to Internet use.

“The law requires registrants to provide information about online activities that have no possible relationship to criminality, such as the screen names they use to post comments about articles on a newspaper’s website or names that they use to access political discussion groups,” the complaint says.

The requirement is unconstitutional, contends Hanni Fakhoury, a staff attorney for the EFF who is representing the plaintiffs in the lawsuit.

“This is a First Amendment issue,” Fakhoury said. “What the [statute] does is to eliminate the right to speak anonymously for an entire class of individuals.”

The bill is not limited to human traffickers. Rather it applies to every sex offender in the state regardless of how minor the offense was or how long ago it occurred, he said.

It’s one thing to expect a curtailment of certain rights for people who are currently incarcerated or under probation or parole, Fakhoury said. It’s another matter though to curtail those rights, for people who have already served out their prison time and their probationary periods, he said.

“At some point, they become just like everybody else in society” and have the right to communicate anonymously online if they choose to, he said.

The District Court has scheduled a hearing on Nov. 20 to decide whether a preliminary injunction enjoining the state from implementing and enforcing the provision should be issued.

To read more, please visit http://www.computerworld.com/s/article/9233395/Judge_blocks_enforcement_of_Calif._human_trafficking_law

 

Election Day

NEWARK ORDINANCE RESTRICTS THE USE OF CRIMINAL HISTORY INFORMATION IN EMPLOYMENT

-Article written by attorneys at Seyfarth Shaw LLP-

The City of Newark, New Jersey recently passed an ordinance that will significantly impact employers’ and other entities’ ability to conduct criminal background checks or even ask about a candidate’s criminal background. The ordinance limits both when and the extent to which employers may ask about or use criminal history in employment. Newark’s ordinance 12-1630, entitled “Ordinance To Assist The Successful Reintegration Of Formerly Incarcerated People Into The Community By Removing Barriers To Gainful Employment And Stable Housing After Their Release From Prison; And To Enhance The Health And Security Of The Community By Assisting People With Criminal Convictions On Reintegration Into The Community And Providing For Their Families,” goes into effect on November 18, 2012.

Newark’s ordinance is the latest example of a series of efforts at the federal, state and local level aimed at curtailing employers’ ability to use criminal history information in employment. At the federal level, employers should be aware of the Equal Employment Opportunity Commission’s (EEOC) April 25, 2012 Guidance on the Use of Arrest and Convictions (the Guidance) which sets forth practices employers may want to consider so as not to be a target of the EEOC.1 Similarly, a number of states have pending legislation seeking to follow the EEOC’s lead.2 This, in addition to other states which have already regulated this area.3

Who is Covered Under Newark’s Ordinance

Newark’s ordinance is only applicable when the “the physical location of the prospective employment [is] in whole or substantial part, within the City of Newark.” In that sense, it is of limited local application. Importantly, the term “employer” is defined as “any person, company, corporation, firm, labor organization, or association, which has five (5) or more employees and does business, employs persons, or takes applications for employment within the city of Newark…”4 “Employment” is defined more broadly, however, as “any occupation, vocation, job, work or employment with or without pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.” (emphasis added). These definitions suggest that the prohibitions contained in the ordinance, as well as the affirmative obligations it imposes, may apply with equal force when an employer is seeking volunteers, students, or independent contractors as opposed to solely employees.

Timing of Criminal History Questions

Employers covered by the ordinance are largely prohibited from inquiring about a candidate’s criminal history. Specifically, the ordinance prohibits making any “pre-application criminal history inquiry”. This means that employers may not engage in any conduct (direct or indirect) that is intended to gather information about a candidate’s criminal history in the application or before the employer has extended a conditional offer of employment to the candidate. The ordinance makes clear that employers may not ask candidates about their criminal history in any way, shape or form until after they have been deemed otherwise qualified and eligible for employment. The only exception is to the extent the candidate voluntarily discloses information without being prompted.

Indeed, the ordinance even makes it unlawful for an employer to “produce or disseminate any advertisements that expresses, directly or indirectly, any limitation on eligibility for employment arising from a candidates’ criminal history.”

Employers may only inquire about a candidate or employee’s criminal history when three criteria are met:

  • The employer has already extended a conditional offer of employment to a candidate that is “otherwise qualified” for the position5; and
  • The employer has provided the candidate advance written notice and the candidate has consented in writing to the specific inquiry about his/her criminal history; and
  • The employer has made a “good faith determination” that such information is relevant due to the sensitivity of the position in question.

What Employers Can Ask About

Even in the limited instances when permitted to inquire, the ordinance places limits on what an employer may ask about. Employers may only seek information into:

  • Convictions for Murder, Voluntary Manslaughter and Sex Offenses requiring registry under N.J. S.A. Title 2C Chapter 7, that are punishable by a term of incarceration in state prison, regardless of the length of time that has passed since the conviction;
  • Indictable offense convictions for eight (8) years following the sentence thereof, including termination of any period of incarceration;
  • Disorderly persons convictions or municipal ordinance violations of five (5) years following the sentence;
  • Pending criminal charges.

In no event, may employers inquire about:

  • Arrests or criminal accusations which are not pending or did not result in a conviction;
  • Records that have been erased, expunged, pardoned or otherwise legally nullified; or
  • Any juvenile adjudications of delinquency or any records which have been sealed.

Factors to Consider in Evaluating Criminal History

Similar to the Guidance, the Newark ordinance sets forth six (6) factors that employers must consider when evaluating the results of any criminal history inquiry:

  1. The nature of the crime and its relationship to the duties of the position sought or held;
  2. Any information pertaining to the degree of rehabilitation and good conduct, including any information produced by the applicant or employee, or produced on his or her behalf;
  3. Whether the prospective job provides an opportunity for the commission of a similar offense(s);
  4. Whether the circumstances leading to the offense(s) are likely to reoccur;
  5. The amount of time that has elapsed since the offense(s); and
  6. Any certificate of rehabilitation issued by any state or federal agency.

Many, but not all, of these factors mirror factors enunciated in the EEOC Guidance. For instance, although the EEOC Guidance requires employers to consider evidence that the individual performed the same type of work post-conviction, it does not specifically require the evaluation of whether the prospective position provides an opportunity for the commission of a similar offense, as does the Newark ordinance.

One noteworthy feature of the ordinance is that it requires employers to document in writing their consideration of the above factors by using a “Applicant Criminal Record Consideration Form.” Significantly, the ordinance does not provide a required form or a sample of such a document.

Adverse Action

If after conducting an inquiry into an a candidate’s criminal history, an employer takes adverse action (e.g. refusal, rescission, revocation of offer or termination of employment), the employer must take several steps. First, as is the case under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et. seq., the employer must notify the candidate in writing of the (potential) adverse employment decision and include a copy of the results of the criminal background report or inquiry made. Employers must also advise any affected individuals about the opportunity to present evidence related to the accuracy and/or relevance of the criminal history results, including any information concerning the above factors. Unlike the FCRA however, the written notice of rejection must indicate the particular conviction(s) that relate(s) to the position’s responsibilities, specifically state the reasons for the adverse decision, include the employer’s consideration of the required factors and provide the candidate or employee with the “Applicant Criminal Record Consideration Form.”

Pursuant to the Newark ordinance, a candidate or employee has ten (10) business days after receipt of the employer’s notice of adverse action to respond and provide information or evidence concerning the accuracy or relevance of his/her criminal history. The employer must then review any information and documentation provided by the candidate or employee before making a final determination. The ordinance requires employers to document the information or evidence received from the candidate or employee, as well as its consideration of any such evidence along with the final action taken. Employers must then notify the affected individual of the final determination within a reasonable period of time. In doing so, however, the employer must specifically state its reasons for the adverse action and provide a copy to the individual of the documentation concerning the employer’s consideration of any information presented.

Exemptions

The ordinance contains only two exemptions which are to be narrowly interpreted:

  • Instances where a federal or state law or regulation requires the consideration of an applicant or employee’s criminal history information for employment, but only as to the offenses or types of offenses the law or regulation requires the employer to consider; and
  • Instances where the employer has designated certain positions to participate in a federal, state or local government program or obligation designed to encourage the employment of those with criminal histories.

Enforcement

The ordinance does not include a private right of action but it does provide that employers may be fined up to $1,000 for each violation. The mayor of Newark is to designate an agency to be responsible for enforcement of the ordinance.

Housing

As its title suggests, the ordinance also has provisions concerning the use of criminal history inquiries in housing. In sum, it prohibits consideration of an applicant’s criminal history until after a formal application for housing has been submitted, after the landlord or real estate broker has provided specific written disclosures and notification to the applicant, and the applicant has consented in writing to the inquiry. The ordinance limits the types of convictions that landlords or real estate brokers may ask about in the same way as it does in the employment context. It also provides that landlords and brokers must consider and analyze very similar factors, adjusted for use in the housing context, than those enunciated above.

Best Practices for Compliance

As a result of this ordinance, employers and other entities in the city of Newark are well advised to reevaluate their criminal background inquiries with respect, not only to employees and applicants, but also as to volunteers, independent contractors and students. Companies should consider whether they are covered by the ordinance and if so, determine the steps necessary to bring them into compliance before the effective date of November 18, 2012.

Covered employers should review any advertisements for jobs in Newark to ensure they do not suggest any limitations to employment eligibility based on criminal history. Covered employers will likely need to review and modify existing job applications to ensure that candidates in Newark are not asked any information about their criminal history on the application or before a conditional offer has been extended. Because the ordinance requires employers to specifically detail the particular conviction(s) which relate to the positions’ responsibilities and to specifically state the reason for adverse action, employers may also need to review and modify their background screening forms, including their FCRA pre and post-adverse action notices for use in Newark. It also behooves employers with operations in Newark to review and reassess their background screening policies and procedures and train their personnel accordingly.

Newark’s ordinance demonstrates the increasing regulation that employers are being subjected to at the federal, state and local level alike, concerning background screening and use of criminal history in employment. This area is becoming a new hotbed of litigation. Given this increasingly changing landscape, all employers are well advised to closely monitor developments in this area of the law.


1. See EEOC Enforcement Guidance No. 915.002 dated April 25, 2012: “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. 2. See Seattle, Washington Proposed Ordinance 117583 and Washington D.C. Bill 19-889. 3. See NY Corr. Law § 750-754, 19 Pa. Cons. Stat. §9125, and Wash. Rev. Code. §§43.43.815. 4. Newark, N.J. Ordinance 12-1630 (Sept, 5, 2012) 5. In this regards, Hawaii, is the only other state or local regulation that requires a conditional offer of employment before an employer may seek criminal history information. See Haw. Rev. Stat. §378-2.5.

Source: http://www.seyfarth.com/publications/MA110112

 

WEATHER DELAYS UPDATE

— PLEASE BE ADVISED –

Expected delays related to Hurricane Sandy continue in the following areas:

  • Delaware
  • New Jersey
  • New York