Transcript 2014-01-30 Hiring the Best, Background Checks, References and

Hiring the Best:
Background Checks, References, & More
PRESENTED BY:
DENA H. SOKOLOW
ALLEN, NORTON & BLUE, P.A.
[email protected]
850-561-3503
Employers Should Be Curious
 You are entitled to learn as much information
about a candidate as possible before offering
them a position.
 Well-drafted applications ask:
 Previous
work history
 Previous work experience
 Educational background
 Military background
 References
Employers Should Be Curious
 You are entitled to learn as much information
about a candidate as possible before offering
them a position.
 Acknowledgments and permission
 Truth
and accuracy of information
 Background checks
 Military or school records check
Background Checks
 Over 90% of employers conduct criminal
background checks for some job applicants.
 Over 70% of employers conduct background
checks on all potential new hires.
 Identify candidates who display a history of
good decision making and judgment.
 Reduce the risk of criminal behavior in the
workplace.
 Avoid negligent hiring lawsuits.
Developments
 Criminal background checks obtained for
employment purposes are controversial. Under
attack from:
the U.S. Equal Employment Opportunity Commission
(EEOC)
 Civil rights activists
 President Obama

 2012 Enforcement Guidance from EEOC
 http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
More and More “background check” Lawsuts
 In 2012, Pepsi paid $3.13 million settlement with
EEOC regarding hiring practice of applicants with
arrest records
 In 2013, EEOC continued its war on background
checks filing suits against




Dollar General
BMW
Kaplan Higher Learning
Freeman
More and More “background check” Lawsuts
 In 2013, the EEOC lost two high-profile federal
lawsuits1
It attempted to show that many employers use criminal
and/or credit background checks to discriminate against
applicants in violation of Title VII.
 Courts did not find the EEOC’s statistics persuasive.

 Nine Attorneys General challenged EEOC’s
guidance and lawsuits against BMW and Dollar
General
1 EEOC v. Freeman; EEOC v. Kaplan Learning.
More and More “background check” Lawsuits
 The EEOC will continue pursuing claims
that criminal and/or credit background
checks violate Title VII.
 Employers should review their policies,
ensure that screens are job-related,
defensible, and based on business necessity.
The Free Credit Reporting Act (FCRA)
 The FCRA regulates the exchange of consumer
information between employers that use
consumer reporting agencies (CRAs) to
provide screening reports with other types of
information, including criminal records.
 Employers must comply with the FCRA when they
order virtually any type of report from a CRA.
Compliance with the FCRA
 The FCRA’s requirements on employers may
be divided into two categories:
(1) requirements employers must follow before
they obtain a consumer report
(2) requirements employers must follow if they
take “adverse action” based on information
contained in the consumer report.
Obtaining a Report
 Employers can do a background check on any
applicant.
 In order to obtain a report from a CRA, an
employer must get the applicants consent:
make a clear and conspicuous written disclosure to the
applicant, in a document that consists “solely” of the
disclosure, that a consumer report may be obtained.
 The applicant (or employee) must provide written
consent.

Obtaining a Report
 NOTE – A properly worded authorization from an
applicant will allow an employer to obtain more
consumer reports during employment without the
need obtain a new authorization.
Now you’ve received the report … What next?
 If the report does not contain any damaging
information – GREAT!
 If it DOES contain damaging information, you can
reject an applicant based on the poor report.
 This is called “adverse action” and the employer
must follow certain requirements.

“adverse action” = “a denial of employment or any other
decision for employment purposes that adversely affects any
current or prospective employee.”
Fair Credit Reporting Requirements
When taking an adverse action, the employer
must --

1.
Disclose to the applicant that you are not selecting
him/her because of the poor report.
2.
Provide a copy of the consumer report and who
provided it to you.
3.
Provide a summary of consumer rights (a document
provided by the Consumer Financial Protection
Bureau).
Potential Liability for FCRA Non-Compliance
 The FCRA allows an applicant or employee to sue an
employer for “negligently” or “willfully” failing to
comply with any of the FCRA’s requirements.
The statute of limitations for violations of the
FCRA:
(1) two years after the plaintiff discovers the violation;
or
(2) five years after the date on which the violation that
is the basis of the alleged liability occurred.

Emergence of FCRA Class-Actions
 Recently, large employers have lost several class
actions because they violated FCRA requirements.
Did not provide notice or
 Did not properly handle documents.

 As more publicized settlements occur, the risk
grows for “copycat” suits brought by plaintiffs’
attorneys not previously familiar with the FCRA.
Hiring Decisions
 Employers must be CONSISTENT with the treatment of
applicants.
 What if you hire the white applicant with poor consumer
report and then use similar information as a basis for not
hiring a minority applicant. LAWSUIT!
 Employers are allowed to have different consumer report
standards for applicants v. employees.
 TIP: Employers cannot discriminate (refuse to hire) an
applicant simply because he/she filed for bankruptcy.
BUT . . . can refuse to hire because of bad credit.
Using Background Information
Are You Risking a Lawsuit?: Ask Three Questions
Question #1 – Is all available information equally
relevant in selecting a candidate?
Question #2 – Do you have valid reasons to order
background checks?
Question #3 – Are you making appropriately tailored
assessments of unsuitability?
Q #1 – Is the information equally relevant?
 The scope of a background screen can be as narrow
as reviewing driving history or as broad as reviewing
all information contained in any public and
educational record.
 As you peruse the menu of screening choices you
should ask yourself, “What are we going to do with
the results?”
Q #1 – Is the information equally relevant?
 Criminal History
 Before
hiring candidates, identify what kind of
criminal background information you will look
for …
 Related
to honesty (theft, etc.)
 Including how many years back
 Employers
get sued when there is inconsistency
in the type of background check each applicant
gets
Q #1 – Is the information equally relevant?
 Ex:
Employer refuses to hire a qualified minority
with a DUI conviction and then hires a qualified
white male with similar DUI conviction.
 Establishing
(1)
(2)
a policy will:
help prevent lawsuits and
help defend against them if and when they
come
CONSISTENCY IS KEY
Q #1 – Is the information equally relevant?
 Credit History

Do the same financial background check for all
applicants applying for the same job – not just some of
them.

Use the information for positions with financial risk, i.e.
such as accountant, controller, etc.

Provide an opportunity for applicants to explain their
negative credit-history information.
CONSISTENCY IS KEY
Q #1 – Is the information equally relevant?
 Arrest history
 When a job candidate is arrested for a crime and then
not convicted (or only convicted of a less serious crime):
 both state and federal regulators have warned
employers to either ignore this information altogether,
or
 use it merely as a basis to ask an applicant for more
detail about the events surrounding the arrest.
CONSISTENCY IS KEY
Q #2 – Valid reasons for the report?
 Should you complete a background check for the
position?
Consider this information :
the nature of job duties;
 the environment where the work is performed; or
 the exposure to the public

 Do these factors make it important to be able to
evaluate a candidate’s criminal history or current
financial position as part of your assessment?
Q #2 – Appropriate assessments?
 Consistency is a critical litmus test of whether
there is discrimination in the workplace
 The greater the consistency, the less likely that
discrimination is present.
Q #2 – Appropriate assessments?
 To err on the safe side -- you should place greater emphasis
on criminal (or credit) history that makes a candidate
unsuitable for a particular job position by considering
factors such as:
 The
nature of the job sought;
 The number, nature and gravity of offense(s), as
well as surrounding facts such as age at the time of
conviction;
 Amount of time since the offense and/or completion
of the sentence, and any evidence of rehabilitation
efforts, employment history, or compelling
references.
Other Types of Background Checks
 What if you do not use a consumer reporting agency,
such as a Sheriff’s office or the FDLE?
 Background checks done by non-CRAs are not
regulated by the FCRA and its “notice”
requirements.
 Still
obtain the applicant’s consent.
 A well-drafted authorization form will allow
you to run background checks on that employee
in the future.
Reference Checks
 Ask all you want!
 Job
references
 Performance/Attitude, etc
 Previous employment
 Gaps in employment
 “Job hoppers”
 Reasons for leaving the job.
 “He
didn’t get along with the supervisor.”
False or Misleading Information
 What if you unknowingly receive false or misleading
information from the applicant and you use it as a
reason for non-selection?
 Entirely permissible. You still must be consistent in
what weight you give certain facts.
 Important to document reference information
 What if – after you hired the applicant – you
discover he provided you false/misleading info?
 You can terminate the employee. Just be consistent.
 Warning on application.
A Few Tips
 TIP: written consent is required to obtain school
transcripts or detailed information on an applicant’s
military service record.
 TIP: Do not place a candidate who does not meet
minimum qualifications into the pool of candidates
who do meet qualifications.
 TIP: Carefully review information given on
application/resume.
 Compare
 Look for gaps
A Few Tips
TIP: Proofread your own forms!
Employment Applications, Contracts and
Orientation Materials
Hiring Decision on an Impermissible / Illegal Reason
 Race
 Title VII and FCHR
 Pretty self-explanatory – you cannot non-select because of
someone’s race
 Sex
 Title VII and FCHR
 Gender is one component
 Pregnancy – what happens if an applicant says she is pregnant
– can you use that as a basis for non-selection?
 No! Its the same as if they were current employee.
Thank You
ANY QUESTIONS, CONTACT ME AT:
906 NORTH MONROE STREET
TALLAHASSEE, FL 32303
(850) 561-3503
[email protected]
THIS PRESENTATION IS NOT INTENDED AS A
SUBSTITUTE FOR INDEPENDENT LEGAL ADVICE.