Header graphic for print

Immigration Compliance and Background Screening

GAO Releases Report on Criminal Background Checks for Employment

Posted in Background Check, Criminal History Records

Yesterday the Government Accountability Office (GAO) released a report on the use of criminal background checks (GAO-15-162) tied to a congressional request.  The title of the report is, “Criminal History Records – Additional Actions Could Enhance the Completeness of Records used for Employment-Related Background Checks”.

The GAO report sought to address “to what extent (1) states conduct FBI record checks for selected employment sectors and face any challenges; (2) states have improved the completeness of records, and remaining challenges that federal agencies can help mitigate; and (3) private companies conduct criminal record checks, the benefits those checks provide to employers, and any related challenges.”  This blog will focus on what the report says about private background screening companies.  Specifically the GAO report found that:

  • The use and number of private companies conducting criminal record background checks for employment screening appears to be increasing because of employer demand;
  • Both the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) are responsible for enforcing provisions of the Fair Credit Reporting Act (FCRA) which are applicable to background screeners, as they are considered “consumer reporting agencies” under the FCRA;
  • According to FTC officials, from FY 2009 – 2014, the “FTC settled 16 complaints against private background screening companies and employers for alleged FCRA violations” and of the 16 complaints, 4 included allegations related to the use of criminal history information for employment purposes (See page 35 of the report);
  • CFPB officials noted that “they have not received many consumer complaints regarding the use of criminal history records in employment background checks” (See page 35 ofthe report); and
  • Private background screening companies generally conduct name-based checks as opposed to fingerprint-based checks, which according to the report, can “decrease the accuracy of the information that the check produces.”  However, use of additional identifiers, such as date of birth, can help mitigate accuracy concerns (See page 38 of the report).

The report concludes on page 39 by saying that “employers’ increasing use of criminal history record checks to determine applicants’ suitability for employment, licensing, or volunteering underscores the need for accurate and complete criminal records–including the final disposition of any criminal charges–and assurances that applicants have an opportunity to challenge or correct potentially inaccurate records.”  The report lays out three recommendations for executive action involving the FBI and states, and those are listed on page 40 of the report.

Employer Fined $227,000 for Form I-9 Violations for Remote Employees

Posted in Department of Homeland Security, Form I-9, ICE Enforcement Actions

A national staffing company has been fined $227,000 in civil fines for improperly completing the Forms I-9 for its remote hires.  This despite the fact that Immigration and Custom’s Enforcement (ICE) determined that all employees were legally authorized to work in the United States.   According to a press release by the company, the reason for the fine lies in the fact that the wrong person signed the I-9 forms.   Again, according to a company press release, this was how they completed Forms I-9 for remote hires.  Which, as I will explain later, was not properly done and hence why the company was fined:

Prior to the government’s notifying ESSG of any problem with its employment verification process and because of ESSG’s nationwide sprawl, the company confirmed new employees’ identity via an on-site agent who examined applicants’ documentation for authenticity. Once confirmed, the agent faxed color copies of the documents to company headquarters, where ESSG staff completed and signed the mandatory I-9 forms and again confirmed employees’ authorization with the advanced electronic verification system (E-Verify) used by more than 500,000 companies in the U.S.

The government objected to ESSG’s process, claiming the law requires the same person who views the applicant’s original documents must complete and sign the I-9, and disregarded ESSG’s voluntary use of E-Verify.  Despite the judge’s decision in favor of the government, ESSG is standing its ground and preparing an appeal.”

This practice is described in the OCAHO judge’s order as well.  Namely that an off-site agent of ESSG examined the original documents, copied them and sent them to ESSG in Minnesota where a payroll administrator completed section 2 of the Form I-9 by working off the photocopies.  Turns out the government is right in saying the I-9s were improperly completed.

The regulations at 8 C.F.R. §§ 274a.2(a)(3) and (b)(1)(ii)(A) – (B) clearly state that the individual who examines the original document(s) presented by the employee who completes section 1 must be the same person who completes section 2.  There must be a physical inspection of the document(s) presented for I-9 purposes  AND the person reviewing them must be the person who completes section 2.  No exceptions for remote hires.  Putting aside the reality that this does not allow employers to leverage technology (like Skype) and that it seems like an archaic requirement in the 21st century … truth is that is the law.  Section 2 also includes an affirmative attestation in which the person completing the section states, under penalty of perjury, that they have examined the document(s), they appear to be genuine and relate to the individual presenting them.  This requires a tactile review of the documents.

The judge’s conclusions of law were, among others, that:

  • Failure to review an individual’s original documents before signing section 2 of the Form I-9 constitutes a failure to properly complete section 2 of the I-9 in violation of 8 C.F.R. § 274a.2(b)(1)(v); and
  • Section 2 of the I-9 is properly completed only when the person who signs the section 2 attestation is the same person as the person who examines the employee’s original documents.

In total, the judge found that 243 employees listed in the Notice of Intent to Fine fell under the employer’s incorrect I-9 practices for remote hires.  The judge found no “compelling reason” to adjust the penalties set by the government (and Judge Thomas usually does).  ICE set the penalties “for the false attestations in section 2 of the I-9s” for the 242 employees at $935 each.

To read the Final Decision and Order in United States v. Employer Solutions Staffing Group II, LLC (OCAHO Case No. 14A00005) click here.

If you are a company with remote hires and would like to discuss your practice please contact me at Arnall Golden Gregory LLP.

Pennsylvania Youth Serving Organizations, Volunteers and Background Checks

Posted in Background Check, Criminal History Records

Take note of a new law (H.B. 435) effective this year in Pennsylvania which requires a criminal history background check for volunteers seeking to serve with youth serving organizations.

Legislative History

H.B. 435 was introduced in the House of Representatives on February 11, 2013 and was referred to the Committee on Children and Youth. The bill was unanimously passed as amended by the House on June 24, 2013 by a vote of 197-0. In the state Senate, the bill was referred to the Committee on June 28, 2013.  H.B. 435  was reported out of the Committee on October 6, 2014, after the Committee made substantial amendments.  The bill was subsequently passed unanimously (50-0) on October 8, 2014. After the House concurred in the Senate-passed amendments (175-18), Governor Tom Corbett signed H.B. 435 into law as Act No. 153. The read the final act click here.

Summary of Act 153

Act 153 amends Pennsylvania’s Child Protective Services Law, 23 Pa.C.S. § 6301 et seq., to expand background check and clearance requirements to include volunteers who will have contact with children (among other changes applicable only to adoptive and foster parents). Subsections 6344.2(a)-(b), as amended, requires “employers, administrators, supervisors or other persons responsible for selection of volunteers” who will be “responsible for the welfare of a child or having direct contact with children” to require volunteer applicants to submit documents which prove that they meet background clearance requirements before they begin volunteering. Specifically, a volunteer applicant for a position that will involve working with children is required to provide:

  1. A report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police central repository contains no such information relating to that person;
  2. A certification from the department of public welfare as to whether the applicant is named in the statewide database as the alleged perpetrator in a pending child abuse investigation or as the perpetrator of a “founded report or an indicated report” of child abuse; and
  3. A federal criminal history record report obtained by providing a full set of fingerprints to the Pennsylvania State Police to obtain an FBI records check.

23 Pa.C.S. § 6344(b)(1)-(3).

The third requirement, the FBI background check, is waived where the volunteer applicant has been a resident of Pennsylvania for the last ten (10) years, seeks to serve in an unpaid position, and swears or affirms, in writing, that he or she has not been convicted of one or more of the 20 disqualifying crimes listed in 23 Pa.C.S. § 6344(c)(2), which generally include homicide, assault, stalking, kidnapping, sexual offenses, prostitution or child endangerment (and similar crimes). 23 Pa.C.S. § 6344.2(b.1)(1).

Disqualification

A volunteer applicant is disqualified from working with children if they:

  • Have been named in the statewide database as the perpetrator of a founded report of child abuse within the last five years (23 Pa.C.S. § 6433(c)(1));
  • If they have been convicted of a felony offense under the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101, et seq, within the last five years (23 Pa.C.S. § 6344(c)(3)); or
  • If they have ever committed one of the designated crimes listed in 23 Pa.C.S. § 6344(c)(2), which generally include homicide, assault, stalking, kidnapping, sexual offenses, prostitution or child endangerment (and similar crimes) (23 Pa.C.S. § 6344.2(b.1)(2)).

Recertification and Self-Reporting

Effective July 1, 2015, all volunteers having contact with children must obtain the required certifications required by Section 6344.2(b) every thirty-six (36) months. 23 Pa.C.S. § 6344.4 (2). Additionally, if a volunteer who works with children is arrested for or convicted of a disqualifying event, he or she must notify the administrator of the organization’s volunteer program within 72 hours. 23 Pa.C.S. § 6344.3(g)(1). If the administrator suspects that a volunteer who works with children has been arrested for or convicted of a disqualifying offense, they must require the volunteer to re-certify, the cost of which re-certification must be borne by the organization. 23 Pa.C.S. § 6344.3(g)(2).

Transferability and Provisional Clearance

A volunteer who has been cleared to work with children can transfer or provide services to another subsidiary or branch without recertification. 23 Pa.C.S. § 6344.3(f)(1). However, a volunteer must re-certify prior to volunteering to work with children for another organization, agency, or institution. 23 Pa.C.S. § 6344.3(f)(2). Volunteers who have not yet been cleared pursuant to the procedures described above may serve on a provisional basis for a single period not to exceed thirty (30) days if the volunteer is in compliance with the clearance requirements of the jurisdiction where the volunteer is domiciled. 23 Pa.C.S. § 6344.2(f).

Penalties for Noncompliance

It is extremely important that youth serving organizations ensure that they are in compliance with these new requirements, as the penalties for noncompliance are severe. Specifically, any employer, administrator, supervisor or other person responsible for the selection of volunteers who intentionally fails to comply with the law may be found guilty of a third degree misdemeanor, which is punishable by a fine or up to a year in state prison or county jail.

President’s Executive Order Halted

Posted in Department of Homeland Security

President Obama’s executive order on immigration has been halted by a federal judge in Texas. U.S. District Judge Andrew Hanen granted a temporary injunction to allow the government, and the 26 states challenging the President’s executive order issued in November of last year, time to prepare and present arguments to the court on the merits.

What does this mean?  Two key components of the President’s executive action on immigration included expanding the Deferred Action for Childhood Arrivals (DACA) program and creating a new program for parents of U.S. citizens or lawful permanent resident children called DAPA, or Deferred Action for Parents of Americans and Lawful Permanent Residents.  Those have been halted, or enjoined, by District Judge Hanen until the courts hear arguments on the legal issues and rule accordingly.

The Obama administration will likely appeal the decision to the U.S. Court of Appeals for the 5th Circuit, but this is a serious road block to implementation of DACA.  Tomorrow (February 18th), U.S. Citizenship and Immigration Services was to begin accepting applications under the expanded DACA program, which would grant certain individuals unlawfully present a work permit if they meet the eligibility criteria.  The DAPA program was not expected to go into effect until May of this year, but that too is now in jeopardy.  Both programs are intended to grant individuals unlawfully present in the United States with work permits and lawful status in the United States, although not actually granting them any other benefit or right to remain permanently.  DACA and DAPA are both temporary programs that would essentially defer one’s deportation or removal from the United States hence use of the words “Deferred Action” program’s titles.

See Texas v. United States, Case No. 1:14-cv-00254 (2/16/2015) — click here for the Memorandum Opinion and Order

The Copy of the Order of Temporary Injunction enjoins the Department of Homeland Security “from implementing any and all aspects or phases of” an expanded DACA and the new DAPA.

 

 

E-Verify RIDE Adds Another State

Posted in Department of Homeland Security, E-Verify

Effective February 1, Nebraska became the latest state to join E-Verify’s RIDE program.  RIDE stands for the “Records and Information from DMVs for E-Verify” initiative, which is billed as an enhancement to the E-Verify program that verifies the validity of driver’s license and ID card information by matching the data entered by employers against participating state motor vehicle department records. RIDE enables two-part verification by validating the information on select identity documents in addition to the existing employment authorization check.  To date, five states participate — Nebraska, Mississippi, Florida, Idaho and Iowa. The idea behind RIDE is to reduce document fraud in the Form I-9 and E-Verify process.

Employers don’t need to do anything special in these five states.  There is no photo matching feature if an employee presents a List B driver’s license from one of these five states.  If you receive a Further Action Notice (FAN), it will be treated as a FAN from the Department of Homeland Security.

To learn more about RIDE, click here.

Use of Social Media for Background Screening

Posted in Background Check, Equal Employment Opportunity Commission

Today’s Wall Street Journal has an interesting article about “online sleuthing” and privacy concerns.  Employers use social media when screening candidates for employment and it’s no surprise that police and prosecutors use it as well to tell them something about someone, locate an individual or otherwise track them. Sometimes, law enforcement use social media by “impersonating users or setting up fictitious accounts to gather intelligence or evidence for trials” according to the article.  In a survey cited in the article, “…about 500 local, state and federal law enforcement officers commissioned last year by database provider LexisNexis,Corp. 81% said they actively used social media in investigations. Asked whether creating fake online personas or profiles was ethical, about 80% agreed that it was, 11% were neutral, and 9% disagreed.”

Using this as background, let’s consider the use of social media for employment screening.  There are permissible ways an employer can use social media in this context and impermissible ways to use social media.  There are background screening companies who operate under the Fair Credit Reporting Act (FCRA) and lawfully provide such information, but the concern comes when employers and/or individuals conduct their own, informal checks on social media when considering an applicant or employee.

In the employment context, an employer likely blurs the line when they do the screening in-house and consider information or factors about an individual that may lead to a discriminatory employment practice.  Say an employer searches social media to learn more about a candidate and learns they are an African American woman and factors that into their hiring decision or decision not to call the candidate in for an interview.  That could be a violation of Title VII of the Civil Rights Act as an unlawful employment practice.  In fact, the EEOC has addressed the use of social media.  This quote sums it up: “… in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that ‘the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.'”  Read more on the EEOC here.

If you want to use social media for employment screening purposes consider these factors:

  1. Hire a reputable background screening company operating under the FCRA.
  2. Set parameters around what you would like reported.  Typically these types of background checks will be limited to user generated content which exhibits violent or sexually explicit activity, hate speech or potential illegal activity such as drug use.  They can also report positive information such as charitable or volunteer participation, educational recognition and achievements and so on.
  3. It is important that the content being reviewed and considered is user generated and not third party commentary, as the latter cannot be verified.
  4. An employer cannot directly or indirectly violate a social media sites terms and conditions or terms of use and go “behind the curtain” for information.  Only use what is publically available on the internet.  Don’t “friend” someone or their friends to learn more about a candidate.  Even if it may not be illegal, it’s creepy.
  5. Don’t ask an employee or job candidate for their password so you can look at their social media account.  In a handful of states that is illegal.

Bottom line, an employer can use social media to screen candidates.  However, be aware of restrictions around its use and use a reputable background screening company for this purpose, one which provides these reports under the FCRA.

Employers, Executive Action on Immigration and Issuance of Work Permits

Posted in Department of Homeland Security, U.S. Congress

As the President’s executive action on immigration rolls out, employers are wondering when they will start to see work permits issued to those covered by the President’s actions.  The short answer is: earliest would be springtime and more likely summer.  Two elements of the executive action on immigration are, an expansion of the Deferred Action for Childhood Arrivals (DACA) program and creation of a new program for undocumented immigrants in which they will also receive a work permit.  The latter being Deferred Action for Parental Accountability (DAPA), which is for those individuals living in the United States, without legal immigration status, who have been here at least five years and have a U.S. citizen or lawful permanent resident child.  There are more requirements than that, but that’s the gist of DAPA.

Individuals who qualify for DACA and DAPA will be issued a work permit, valid for three years. Which means, potentially, up to 5 million individuals who will now be able to lawfully work in the United States.  For more on the President’s executive action on immigration click here.  For individuals wanting to know more about this administrative relief and legal assistance, check this website out.

But wait!  Up on Capitol Hill they don’t like what the President is doing because any changes to immigration laws fall in their bailiwick.  Never mind they have had years to address immigration reform but can’t pass a comprehensive measure.  Notwithstanding, you need to pay attention to what is happening in Congress and the impact it could have on the President’s executive action on immigration.

This week the House of Representative’s voted 236-191 to pass H.R. 240, the Department of Homeland Security (DHS) appropriations bill.  Note that this is a must pass bill as funding for DHS expires February 27th.

The House made in order five amendments that defund the President’s executive actions on immigration.  The House passed (237-190) the Aderholt/Mulvaney/Barletta amendment, which would prevent any funds appropriated by H.R. 240 from being “used to implement, administer, enforce, or carry out (including through the issuance of any regulations) any of the policy changes set forth in” memoranda underlying and detailing the President’s executive action on immigration, or any future “substantially similar policy changes.”  The House also passed (218-209) the Blackburn amendment to prohibit funding from H.R. 240 for granting deportation relief to new, renewing, or previously denied applicants under DACA.  Democrats offered a motion, which was defeated, to send H.R. 240 back to committee to remove the immigration-related provisions and to add $300 million for fusion centers that coordinate local, state, and federal threat information.  Sen. John Thune (R-SD), leader of the Senate Republican Caucus, called the bill “the beginning of the process” for the Senate.  Some suggest that the Senate will not consider the bill much until February, focusing instead on the Keystone XL pipeline for much of the rest of January.  Thune added that the Senate amendment process will be “an effort to try and find six Dems to get to 60 [votes] on something that we could send back to the House that they would be able to take up and pass.”  Democrats want a “clean” bill that would avoid a lapse in DHS appropriations without immigration-related amendments.  CQ reports that Speaker Boehner (R-OH) has not ruled out such a possibility, saying his primary interest is to fund DHS and his secondary interest is in preventing the president’s “executive overreach.”  House Judiciary Committee Chairman Robert Goodlatte (R-VA) announced his agenda today, saying his primary interest on immigration is to prevent the president from implementing his executive action on immigration.

E-Verify Record Deletion Deadline is Around the Corner for Employers

Posted in E-Verify

I have previously written about this (click here), but it is worth mentioning again.  If you have been using E-Verify for more than 10 years, read on.  On January 1, 2015, E-Verify will delete transaction records older than 10 years.  Which means employers who use E-Verify must download case data created on or before December 31, 2004 in the new “Historic Records Report” or it will be gone…forever.  The information you will be saving in an excel worksheet will include employee name and E-Verify confirmation number.  Important stuff.

See the Fact Sheet and Instructions for downloading the report.

Reports must be downloaded by December 31, 2014.

Happy New Years!

Background Screeners, Prospective Blanket Certifications, Background Checks and Litigation

Posted in Background Check, FTC

What do these have in common?  The fact that a federal district court judge believes that a plain reading of the Fair Credit Reporting Act (FCRA) requires background screeners obtain from an employer a certification that the person “has complied” with section 604(b)(1) each and every time before providing a background report.  Meaning no use of one-time prospective blanket certifications.   In the judge’s Memorandum and Order RE: Motion to Dismiss, he grants the employer’s motion to dismiss on the FCRA disclosure and authorization allegation, but does not agree to the same with respect to the background screening company and the 604(b)(1) allegation.

With respect to the allegation against the background screening company, the plaintiff argues that there is a violation of the FCRA because a consumer report was provided by the screener “without first obtaining a certification from M-I stating that M-I ‘has complied’ with its statutory obligations ‘with respect to the consumer report'” pursuant to 604(b)(1).  The judge agrees that in fact this could be the case and that there is no FTC guidance or case law which would allow for a background screener to rely on a one-time prospective blanket certification from employers prior to providing a consumer report under section 604(b)(1).

This is a case to follow if you are a background screening company conducting employment related background checks.  The case number is 1:14-cv-00742 and the plaintiff is Sarmad Syed.  It is pending in the U.S. District Court, Eastern District of California.

If you have any questions about your current practice, please do not hesitate to contact me and the Privacy & Consumer Regulatory practice group at Arnall Golden Gregory LLP.

Understanding the President’s Executive Action on Immigration – Free Webinar

Posted in Department of Homeland Security, E-Verify, Form I-9

I will be presenting with Equifax Workforce Solutions on this free webinar to help employers understand the President’s executive action on immigration and what it means for employers, including what it means for the Form I-9 and E-Verify.

Please click here to learn more and register.

The webinar is December 16th from 1 – 2 pm EST.

I hope you can join me.