Have you ever had a background check conducted for an employee and then wondered if you can use the information provided for another purpose?
The Federal Trade Commission recently posted an article to its blog explaining how, in accordance with the FCRA, an employer or other user of a consumer report cannot “double dip” the information contained within a report. This means that consumer reports ordered for one reason cannot be used for another.
Employers who engage the services of a background screening company should also make sure to read the Notice to Users of Consumer Reports: Obligations of Users Under the FCRA, which explains employers obligations under the law.
Some employer obligations to remember include:
- Having a “permissible purpose” to request a consumer report from a background screening company.
- Providing notice regarding the background investigation and securing the person’s written consent.
- Adverse action notices must be sent out in the event that a negative decision is made based on the content of the consumer report.
On January 22, 2017, Los Angeles is set become the latest city to “ban the box,” restricting private employers with at least ten employees from asking applicants to disclose their criminal histories prior to an offer of employment.
The Fair Chance Initiative for Hiring Ordinance (FCIHO), adopted last month by LA City Council, will be one of the most restrictive for private employers, going beyond measures set in other parts of the country, including New York and San Francisco.
According to FCIHO guidelines, employers conducting business in Los Angeles may no longer include questions on job applications asking for information regarding an applicant’s criminal history. Employers will also be required to state in all job postings, solicitations, and advertisements that they will consider applicants with criminal histories in a manner consistent with the new ordinance.
In addition, employers who wish to rescind an employment offer after learning of an applicant’s criminal history must first perform a written assessment linking the applicant’s criminal history with “risks inherent in the duties of the employment position.” The assessment must also consider such factors as the gravity of the offense and the time elapsed.
Before officially withdrawing an offer, an employer must follow the “Fair Chance Process,” which includes providing the applicant with written notification of the adverse employment action, a copy of the written assessment described above, and any other information or documentation supporting the proposed adverse action. The employer must then allow at least five business days for the applicant to respond with additional information. If the applicant provides mitigating information, the employer must perform a reassessment and provide the applicant with a written copy.
Other items from the ordinance LA employers need to consider:
- A notice must be posted in a conspicuous place informing all applicants that the employer follows all provisions of the Fair Chance Initiative;
- Employers may not retaliate against anyone who complains about noncompliance or who tries to enforce rights granted under the ordinance;
- Employers must retain all job applications, written assessments and reassessments for a period of three years;
- The law is effective immediately, but until July 1, 2017, the only penalty for noncompliance will be a written warning. Starting July 1, 2017, employers that violate the ordinance may be subject to fines and penalties.
Employers exempt from the FCIHO include those prohibited by law from hiring individuals with criminal convictions or who are required to possess or use a firearm.
On November 30, the Los Angeles City Council voted 12-1 to approve an ordinance which prohibits LA employers from inquiring about an applicant’s criminal record until a conditional job offer has been made.
This ordinance adheres to the nationwide “Ban the Box” movement which calls for the removal of check boxes or questions on job forms that ask a person to disclose their criminal history. The goal of this movement is aimed at giving formerly incarcerated people a better chance at obtaining employment. So far, more than 100 jurisdictions in 23 states have passed laws that prevent employers from asking about an applicant’s criminal history during the first stages of the hiring process.
Because the initial vote was not unanimous the city council will vote again this month, but the law is still expected to pass since subsequent votes only require a majority. If given final approval, LA employers (except in fields such as child care and law enforcement) with 10 or more employees and city contractors will be prohibited from asking about criminal records on their job applications. Any employer who then decides against hiring someone after learning of their criminal history would need to provide justification for why the offer is being rescinded.
The policy is expected to go into effect January 1, 2017.
For an article from ABC go to: http://abc7.com/business/la-city-council-approves-ban-on-criminal-records-disclosure-for-job-applicants/1634700/
“Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.
Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).
To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.”
Originally posted by The Huffington Post. Full Article at http://www.huffingtonpost.com/maurice-emsellem/fingerprinting-uber-drivers_b_10972428.html
“Businesses that ask a job applicant about his or her criminal history during the hiring process could be fined and forced to pay the applicant up to $500 under a new law being considered by city leaders.
A Los Angeles City Council committee backed a plan Tuesday to penalize businesses that weed out applicants based on criminal convictions.
The rules are part of a law under consideration by the council aimed at giving former convicts a better shot at obtaining employment.
The Ban the Box ordinance, approved in concept last year by the council, bans private employers with 10 or more workers from asking questions related to an applicant’s criminal history before a conditional offer of employment has been made.
Employers also have to strip criminal history questions from job applications under the proposed law. The “box” refers to “check box” indicating a conviction on an application.
Exemptions for employers in the child care or law enforcement industry are allowed under the ordinance.
Los Angeles non-profits, churches, and other groups support the law, contending it will cut jail recidivism rates by helping former convicts land jobs.
Both the state and federal governments have similar rules in place for applicants seeking public sector jobs, while San Francisco has laws that also apply to private companies.
Some Los Angeles business groups, including the Valley Industry and Commerce Association, oppose the proposed Los Angeles law.”
Originally posted by Dakota Smith of The Los Angeles Daily News. Full article at http://www.dailynews.com/government-and-politics/20160628/la-city-hall-panel-backs-fining-companies-for-asking-applicants-about-past-crimes
“The U.S. Equal Employment Opportunity Commission (EEOC) today issued two documents addressing workplace rights for individuals with HIV infection under the Americans with Disabilities Act of 1990 (ADA), including the right to be free from employment discrimination and harassment, and the right to reasonable accommodations in the workplace.
The White House has issued a National HIV/AIDS Strategy (NHAS) for the United States. One of the steps identified by the Strategy is to reduce stigma and eliminate discrimination associated with HIV status and services. EEOC has a long history of enforcing the nondiscrimination rights of individuals with HIV infection in employment. During Fiscal Year 2014 alone, EEOC resolved almost 200 charges of discrimination based on HIV status, obtaining over $825,000.00 for job applicants and employees with HIV who were unlawfully denied employment and reasonable accommodations. EEOC now extends these efforts by issuing two documents that explain these rights.
We are proud to be a part of the National HIV/AIDS Strategy,” said EEOC Chair Jenny Yang. “Individuals with HIV infection should know that the ADA protects their rights in the workplace, including the right to reasonable accommodations. By clarifying these rights, and explaining to doctors how they can support their patients’ requests for reasonable accommodation, these publications demonstrate our commitment to ensuring that individuals with HIV infection have full access to employment.”
Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. It also answers questions about the process for obtaining an accommodation; possible accommodations; the privacy rights of people who have HIV infection; the employer’s obligation to keep medical information confidential; and the role of EEOC in enforcing the rights of people with disabilities.
Helping Patients with HIV Infection Who Need Accommodations at Work explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation. It also answers questions about the types of accommodations that may be available; the ADA’s protections against employment discrimination based on having the condition or on the need for accommodation; the importance of disclosing the need for an accommodation before a problem occurs; and what to do when an employer raises safety concerns.”
Originally posted by JD Supra. Full article at http://www.jdsupra.com/legalnews/eeoc-issues-publications-on-the-rights-74987/
“President Obama said Monday he was directing federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective government employees about their criminal histories on job applications.
Speaking at Rutgers University in Newark, N.J., where he highlighted programs meant to ease the reentry of former inmates into society, Obama said the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.”
It’s unclear how many federal agencies would be affected by Obama’s action. Many agencies already delay asking about criminal history until later in the hiring process, but Obama is directing the Office of Personnel Management to issue guidance making that practice universal across the federal government.
“It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”
And while civil rights groups applauded the move, many had hoped for an even more sweeping executive order. The American Civil Liberties Union called the move “an important first step,” but called on him to follow up with an order that would apply not only to federal employees, but federal contractors. Obama has used 15 similar orders during his presidency to force companies doing business with the government to raise the minimum wage, adopt non-discrimination policies and grant workers paid time off.
“While the president is with us in spirit, his administration is not yet ready to make an executive order a reality,” said Wade Henderson of The Leadership Conference on Civil and Human Rights.
White House spokesman Frank Benenati said the president prefers congressional action on contractors “as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration.”
Sen. Cory Booker, D-N.J., who is sponsoring that legislation with Sen. Ron Johnson, R-Wis., said Monday that he’s “really happy to see the president continue to push the envelope” and bring attention to the issue.
But the ban-the-box effort, he said, “should be done legislatively, so that the stroke of another president’s pen can’t undo it.”
Obama highlighted offender reentry programs Monday in New Jersey as part of a nationwide tour to build support for Congress to overhaul the criminal justice system.
His first stop in Newark was a tour of Integrity House, a halfway house and drug rehabilitation center that gets 85% of its referrals from the criminal justice system. Meeting with former prison inmates who are now residents of the house, Obama said the center does “outstanding work with folks with addiction issues,” and said he hoped his visit would “highlight what is working” across the country.
Obama highlighted the story of Dquan Rosario, who served time in prison for drugs but then, at age 37, went back to school and is now an emergency medical technician in Newark. Obama said Rosario’s story shows it’s never too late for a second chance.
“There are people who have gone through tough times. They’ve made mistakes. But with a little bit of help, they can get on the right path. That is what we have to invest in, that is what we need to believe in,” Obama said.”
Originally posted by USA Today. Full article at http://www.usatoday.com/story/news/politics/2015/11/02/obama-tells-federal-agencies-ban-box-federal-job-applications/75050792/
“Given the imminent effective date of New York City’s Fair Chance Act, employers may be wondering what they need to do to comply with the law. As many employers are aware, effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.) The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)). On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form, and is expected to release its enforcement guidance imminently. In the meantime, we recommend employers consider the following:
- Review all pre-employment forms. Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
- Train hiring managers. Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment. If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
- Revise the adverse action protocol. The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
- provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
- conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
- keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.
The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR.
- Consider best practices for direct inquiries to the applicant. Many employers may still wish to ask the applicant personally whether he or she has a criminal history. Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider. Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
- Review FCRA disclosure forms. Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report. And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.”
Originally posted by Lexology. Full article at http://www.lexology.com/library/detail.aspx?g=79e01e92-5fd0-4607-9728-fb8575f23655
“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.
The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.
At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.
According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.
Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.
“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.
BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background
checks is to ensure the safety and well-being of all who work at the BMW plant site.
“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.
The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “
Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821
“The background-check service that ride-hailing company Uber uses to screen potential drivers did not flag the criminal records of 25 drivers who gave thousands of rides to customers in Los Angeles and San Francisco, prosecutors said Wednesday.
The findings were made public in an amendment to a consumer protection lawsuit filed last year by the district attorneys for Los Angeles and San Francisco. The suit alleges that Uber has misled customers about the safety of the app-based ride service, including how they screen potential drivers.
In the amended 62-page civil complaint, prosecutors detailed the criminal histories of 25 people who gave rides to passengers in Los Angeles and San Francisco in the last two years.
“I support technological innovation,” San Francisco Dist. Atty. George Gascón said in a prepared statement. “Innovation, however, does not give companies a license to mislead consumers about issues affecting their safety.”
The Times reported this month that four Uber drivers cited at Los Angeles International Airport had criminal records that would bar them from driving a taxi in Los Angeles.
Whether ride-hail drivers should be held to the same background-check standards as taxi drivers has been the subject of hours of testimony at Los Angeles City Hall, as lawmakers prepare to vote on a permit process that would allow Uber and its main competitor, Lyft, to pick up passengers at LAX.
Prospective Uber drivers are not required by state law to submit fingerprints as part of their background checks. The company says its background-check service identifies all criminal convictions in the last seven years.
By contrast, the Los Angeles Department of Transportation runs the prints of potential taxi drivers through federal criminal databases.
Uber and Lyft use services that can process screenings within days. They have both argued that using fingerprint checks would be redundant.
In a prepared statement, Uber spokeswoman Eva Behrend said that no background check is “100% foolproof.” Running fingerprints through state and federal databases can flag the criminal records of people who have been arrested but not convicted, “which can discriminate against minorities,” she said.
According to the amended lawsuit complaint, one driver was convicted of second-degree murder in Los Angeles and spent 26 years in prison. He gave a different name when he applied to drive for Uber, and a background report said he had no known aliases and no criminal history, the complaint said. The driver gave 1,168 rides over seven months, according to the prosecutors’ court filing.
Using fingerprints and checking federal databases would have identified the man’s criminal history, prosecutors said.
Prosecutors also said they found three unlicensed drivers who used someone else’s account to drive for Uber.
Five drivers had convictions for driving under the influence in the last seven years, the complaint said, and some still drive for Uber. The company has said it bars applicants with convictions for DUI in the preceding seven years.
Several drivers were convicted of fraud, including one driver convicted in 2010 of 29 felony counts of theft, grand theft, filing false or fraudulent real estate deeds, and money laundering, according to the complaint.”