Two class action complaints were filed recently in the Superior Court of California County of Los Angeles court alleging violations of the Fair Credit Reporting Act (“FCRA”). The cases are Culberson v. The Walt Disney Company (Case No. BC526351) (“Disney”) and Ruffing v. First Choice Background Screening (Case No. BC526352).
The claim against Disney is that they knowingly violated the FCRA by failing to provide job applicants and employees with pre-adverse and adverse action notices, as well as failing to provide job applicants with a copy of their consumer report (aka background check report), pursuant to sections 604(b)(3) and 615.
In the Disney case, Mr. Culberson was hired by Disney and a background check was conducted by Sterling Infosystems, Inc (“Sterling”). The initial background check report showed that Mr. Culberson had a 1998 conviction, although it had been expunged. Mr. Culberson alleges that Disney never provided him with the appropriate adverse action notices nor provided him with a copy of his background check report. Upon contacting Sterling, Mr. Culberson determined that the report provided to Disney contained the expunged conviction. Sterling subsequently issued a new report without the expunged record.
In addition to FCRA violations, Disney is charged with an alleged violation of California Labor Code §432.7(a) for considering a record of arrest which did not lead to a conviction.
In a separate class action complaint, also filed in the Superior Court of California County of Los Angeles Court earlier this month, First Choice Background Screening d/b/a First Choice Research Screening (“First Choice”) is charged with multiple FCRA violations.
First, the suit alleges that First Choice violated section 604(b)(2)(A) of the FCRA by providing employers with a disclosure and authorization form that includes a release of liability as well as requiring that applicants state whether they have been convicted of a crime. The allegation is that First Choice’s disclosure and authorization form does not consist solely of the disclosure. Second, the claim alleges First Choice violated the FCRA by not using reasonable procedures to assure maximum possibly accuracy of the reports as well as strict procedures regarding the reporting of public record information pursuant to sections 607(b) and 613(a)(2).
Takeaway – both cases involve employment screening and should serve as a reminder to employers and consumer reporting agencies (“CRA”) to be mindful of their obligations under the FCRA.
- For CRAs it is important to consider the disclosure and authorization template you provide your end-users to ensure that it does not contain additional verbiage that could be challenged by plaintiff’s counsel as a notice which is not a “clear and conspicuous disclosure”. See section 604(b)(2) of the FCRA.
- For employers, whether it is handled by your CRA or internally, when using background check reports for employment screening purposes you must conduct the pre-adverse and adverse action steps, as applicable, when using information from such a report prior to taking any adverse action against the job applicant. See sections 604 and 615 of the FCRA.
If you would like a copy of either complaint please send me an email at firstname.lastname@example.org.
I will be conducting a free webinar tomorrow on the Form I-9 and E-Verify and compliance with the immigration laws. To view the webinar brochure click here.
Topics will include best practices for Form I-9 compliance, tips for completing the “Not So New Anymore” Form I-9, how to avoid getting caught in the anti-discrimination trap (due diligence vs. over/under-documentation), and what to expect if you are the subject of an ICE I-9 audit.
Please join me! Register through Venza by sending an email to Tracy Smith at email@example.com
The E-Verify system experienced a one-day glitch on October 22nd which led to certain employees erroneously receiving a Tentative Nonconfirmation. Note that this only applies to cases created in E-Verify (or that you tried to create) on 10/22/13. In the spirit of Halloween I highlighted key sections of the notice from the E-Verify Team regarding which documents led to the glitch. The below notice posted on USCIS’ website also walks employers through resolution of such cases in the system. Happy Halloween!
October 24, 2013
On October 22, 2013 E-Verify experienced some technical issues. These issues have been resolved. As a result, employees who provided U.S. Passports or Passport Cards were erroneously receiving Tentative Nonconfirmations.
This instruction only applies to cases created on October 22, 2013 for employees that provided a U.S. Passport or Passport Card. This does not apply to other employees who provided other acceptable document(s) from the List of Acceptable Documents.
If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as “Invalid because the data entered is incorrect”. You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.
Additionally, if you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9. If you created the new case on the same day as the technical issue (October 22, 2013), you must close that case as “Invalid because the data entered is incorrect” and create a new case.
If you are prompted to select or enter the reason why the case was not submitted within 3 business days of hire please select “Technical Problems” from the drop-down menu.
You must NOT ask the employee to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. You must NOT request that employees produce more documents than are required by Form I-9 to establish your employee’s identity and employment authorization. Requiring that your employee present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.
We apologize for any inconvenience this may have caused. If you have any additional questions, please feel free to contact E-Verify at 888-464-4218. Customer service representatives are available Monday – Friday 8 AM – 5PM local time. You may also e-mail E-Verify at E-Verify@dhs.gov.
The E-Verify Team
Senate Bill 90 limits the use of arrest and certain other records by landlords when considering tenant applications. The law is effective January 1, 2014.
When I say beware of Oregon, I mean no disrespect as it is a lovely state with wonderful Pinot Noirs. And I do recommend visiting Mt. Hood.
Back to tenant screening. Section 3 of SB 91 is the critical section. This section limits a landlords ability to consider actions to recover possessions as well as arrest records. The latter has enough exceptions to consume the limitation on arrest records, but it is nonetheless important to be aware of this law and the impact it has on the reporting of this information in Oregon.
The Federal government is operational again. That means, among other things, that the E-Verify system is back! You may recall that immediately after the partial government shutdown due to Congress’ inability to pass a measure to continue funding the Federal government on October 1st it was lights out for E-Verify. Read this posting for more on that.
Starting today, employers can again login to E-Verify and use the electronic employment eligibility verification system. Wondering what to do for those new hires you couldn’t run through the system within the mandated three-day period due to the more than two week government shutdown? Here’s what USCIS is saying about that and the timeline employers must operate under:
Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.
To read the USCIS announcement regarding E-Verify being operational again, click here. This announcement will, among other things, also tell you how to address pending Tentative Nonconfirmation (“TNC”) situations which were also impacted by the government shutdown.
Happy E-Verifying Again!!
In a recent amicus brief before the U.S. Court of Appeals for the Ninth Circuit, the Federal Trade Commission (“FTC”) and Consumer Financial Protection Bureau (“CFPB”) – double the pleasure – teamed up to provide their interpretation of section 605(a) of the Fair Credit Reporting Act (“FCRA”), the reporting of “other adverse items of information” and the seven year reporting period.
The matter, Moran v. The Screening Pros LLC (Case No. 12-57246), involves a consumer report used for tenant screening purposes. The report, made in 2010, listed a 2000 misdemeanor drug charge that was dismissed in 2004. This is the key fact and this is where the FTC and CFPB claim that the Plaintiff is correct in saying that the consumer report provided to the propery manager should not have included the misdemeanor drug charge as the information was outside the seven year window.
For brevity sake, the issue at hand is the FCRA restriction on a consumer reporting agency (“CRA”) from including obsolete information in a report. Enter section 605(a) of the FCRA. Long and short of it, the FTC and CFPB take the position that the FCRA restricts the reporting of “any other adverse item of information…which antedates the report by more than seven years.” Page 11 of the amicus brief states:
“An adverse item, when it occurs, starts the seven-year period. Later related events that are not in themselves adverse do not reopen the period. Thus, in the case of a criminal charge that is eventually dismissed, the dismissal is not an adverse item that starts its own seven-year reporting period. It is simply the disposition of a truly adverse item, the underlying criminal charge.”
The FTC and CFPB made an analogy in their position to obsolete debts and the fact that later, non-adverse events relating to the debt, do not extend the period in which a CRA may report the fact that the debt was referred to collection.
Word to the Wise – CRAs should review their practice with respect to the reporting of dismissals pursuant to section 605(a). While this is just an amicus brief that does not carry the weight of law, it may nonetheless portend to future events given that the CFPB has rulemaking authority under the FCRA.
If you would like a copy of the amicus brief, please contact me by email at firstname.lastname@example.org.
The U.S. Government has shut down due to the inability of Congress to reach an agreement regarding a continuing resolution to fund the U.S. government. While not all operations and functions of the federal government will be shutdown starting today, expect many government agencies to be affected as staff are furloughed. It is unknown how long this shutdown will last and the solution rests with Members of Congress.
Over at U.S. Citizenship and Immigration Services (“USCIS”), which administers the electronic employment eligibilityverification program, please note that the E-Verify site is down. Click here to read the announcement by USCIS. This is a direct result of the government shutdown.
Here’s what it means to employers:
- You won’t be able to access your account, which means you cannot verify employment eligibility within the prescribed three business day window of time.
- E-Verify Customer Support is closed and that means employees will be unable to resolve Tentative Non-confirmations (“TNC”) if those were in the process of being resolved.
- E-Verify webinars and training sessions are cancelled.
- E-Verify Self-Check is not available.
What is USCIS saying about how this may impact employers? Here is the policy they are implementing:
- The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. HOWEVER, you must still complete the Form I-9 for new hires.
- The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to the Social Security Administration or contact the Department of Homeland Security.
- For federal contractors complying with the federal contractor rule, contact your contracting officer to inquire about extending deadlines (assuming they haven’t been furloughed).
- USCIS is stating that employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown.
The following points will cover new features/enhancements to the Form I-9 and E-Verify program that every employer should be aware of.
- The email address that employees provide in Section 1 of the Form I-9 is used by USCIS to contact an employee in the event of a Tentative Non-confirmation (TNC) (which is no longer really called a TNC but more on that later). Since Americans generally tend to reveal too much about themselves (Facebook), most employees will write in their email address and telephone number in Section 1 even though they are not required to do so. When they do, and if as an employer you use E-Verify, you must then input that information into the system. A TNC indicates that there is a record mismatch that must be resolved prior to the employee receiving a “work authorized” status from the system.
- The TNC process now involves two documents. A Further Action Notice (FAN) and a Referral Date Confirmation Notice. The FAN must be reviewed by both the employer and employee and will be issued when an employee receives a TNC. If an employee decides to contest the TNC, a Referral Date Confirmation Notice appears with instructions on initiating contact with either the Department of Homeland Security (DHS) or Social Security Administration (SSA) to resolve the issue. The notice provides the timeline by which this must be done. Employees will also receive via email (assuming they provided their email on the Form I-9) information about contacting DHS or SSA. For a list of the various emails an employee could receive from USCIS, click here.
- Ever heard of a program called E-Verify RIDE? It’s not a carpool program. It’s a program that crosschecks an employees driver’s license with state records. When an employee presents a driver’s license from certain states — Idaho, Iowa, Mississippi — the document number inputed in Section 2, List B of the Form I-9 will be checked against state records. The program is intended to reduce document fraud and boost the accuracy of E-Verify. According to USCIS, more than 80% of employees present a driver’s license as a List B document when completing the Form I-9.
- The Handbook for Employers (M-274) was updated again this year. Make sure you have the latest version with an April date by clicking here. The handbook is a good resource to assist with completing the Form I-9 and should be a part of a company’s immigration compliance binder.
I will be participating on a panel tomorrow speaking about immigration compliance issues such as the Form I-9, what to expect if you are audited by ICE and immigration reform on Capitol Hill. Hosted by the Employment Law Alliance you can register for the FREE webinar here or here. Below is a description of the program and although it is geared toward the hospitality industry, many of the compliance issues I will be discussing are equally applicable to other industries.
Key Employment Issues for U.S. Employers in the Hospitality Industry
Potential new developments involving health care, wage and hour issues, and immigration compliance are on the horizon, and will impact many businesses, including those in the hospitality industry. This webinar will be presented by labor, employment, and immigration lawyers from across the U.S. who will provide insight and practical guidance on the following key issues as they pertain, in particular, to hospitality employers:
- The Affordable Care Act: preparing for the employer mandate and the new assessments for employers
- Hot topics in wage and hour law: pay practices and tip credits; unique exempt/non-exempt rules
- Immigration compliance: best practices for Form I-9 compliance; immigration reform and what it means for the Hospitality industry
- J. Bruce Cross, Moderator, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, AR
- Amber W. Bagley, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, AR
- Mark G. Burgreen, Bond Schoeneck & King, Syracuse, NY
- Anna Elento-Sneed, Alston Hunt Floyd & Ing, Honolulu, HA
- Montserrat Miller, Arnall Golden Gregory LLP, Washington, DC
- Lenehn Ricks, Dudley Rich Davis LLP, Charlotte Amalie, St. Thomas, USVI
If you do, be advised that you may be running afoul of the immigration laws. In a recent letter regarding whether an employer (who is also an E-Verify employer) can share its Employment Eligibility Verification forms (“Form I-9″) with a third party for payroll purposes the short answer is “no”. In the cited instance, the employer would provide Forms I-9 to a private vender who would issue “pay cards” to the employer’s employees. The third party vendor was permitted to inspect the Forms I-9 to verify the employee’s identity.
According to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) — part of the Department of Justice — a Form I-9 cannot be used for purposes other than for enforcement of the Immigration and Nationality Act (INA). Which is true if you read 8 U.S.C. § 1324a(b)(5) regarding limitations on use of the Form I-9. According to OSC, “sharing Forms I-9 with a private entity in order to have that entity verify employee’s identities for payroll purposes is not a use related to enforcement” of the INA. Also, they go on to correctly point out that if one is an E-Verify employer and they are sharing E-Verify related information with a third party, such as the results, that employer may also be running afoul of the Memorandum of Understanding they have with the Verification Division of the Department of Homeland Security.
Bottom line, do not share your Forms I-9 with private vendors.