Background screeners and users of background check reports provided by a background screening company (defined as a consumer reporting agency under the Fair Credit Reporting Act (FCRA)) — the wait is over! The Consumer Financial Protection Bureau (CFPB) has finally posted on its website a full and intact version of A Summary of Your Rights Under the Fair Credit Reporting Act, in English and Spanish, as required under section 609(c)(1) of the FCRA. For those of you who previously searched for this document on the CFPB’s website, you will recall that it was about as easy to find as a pot of gold at the end of a rainbow.
The Summary is a critical document which must be provided to, for instance, job applicants during the adverse action process — see FCRA § 604(b)(3)(A)(ii).
Whether you are a user of background check reports or the provider of background check reports, if you operate under the FCRA this is a required document under sections 604 and 606 of the FCRA. The failure to provide this summary is the subject of litigation, particularly under section 604 which relates to pre-adverse action tied to employment (read prior posts on this).
If you are an employer who has been using E-Verify for more than 10 years, you should download the new “Historic Records Report” before the end of the year. Why? Because effective January 1, 2015, E-Verify transaction records more than 10 years old will be deleted from the system. Meaning, you will no longer have access in E-Verify to cases you created prior to December 31, 2004. E-Verify is taking this action to comply with the National Archives and Records Administration’s retention and disposal schedule.
The deadline to print this report is December 31st. For more information see the Fact Sheet and Instructions provided by the Department of Homeland Security.
On September 30th, the Equal Employment Opportunity Commission (EEOC) announced that it entered into a “cooperative agreement” with a background screening company regarding its implementation of revised policies and practices to ensure that its pre-employment screening complies with the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GINA), and civil rights laws’ anti-retaliation provisions. Janet Elizondo, director of the EEOC’s Dallas District Office, stated, “Increasing employment opportunities through forward-thinking hiring and recruitment models is what both the EEOC and businesses should support. In doing so, it is important for the EEOC to engage not only with employers directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.”
Note the last part of Elizondo’s statement, “it is important for the EEOC to engage not only with employer directly, but also with their business partners who play an important role in facilitating connections between jobs and jobseekers.” According to the EEOC’s press release, the agreement with the EEOC acknowledges the company’s “…proactive changes to screening policies and practices, employee training guidelines and website information, to ensure compliance with the ADA and GINA with regard to applicants. It has assured that a job applicant’s medical history and any civil rights, personal injury, or workers compensation claims made by an applicant against his or her prior and present employers are not inquired into and will not be disseminated to prospective employers.” The Houston based company works with job applicants as an “employment agency”, according to their website, as well as a pre-employment screening company.
U.S. Citizenship and Immigration Services (USCIS) announced the release of a new downloadable Form I-9 Desktop Widget that allows employers to automatically launch the Form I-9 from their desktop. Seemed like a good idea, until I tested it. I downloaded the widget to my desktop, but when I clicked on it I was directed to the I-9 Employment Eligibility Verification webpage, where I had to click on more time to access the Form I-9.
I would be curious to know if others experience the same thing and their thoughts about this new tool. From a HR perspective, I could simply save the webpage in my Outlook Favorites rather than cluttering my desktop with another shortcut. But perhaps others feel differently about the new widget.
The Employment Verification Law (C.R.S. § 8-2-122) requires both public and private employers in Colorado to complete the Affirmation of Legal Work Status form within 20 calendar days after hiring an employee. The revised form, with a date of 09/01/14, must be used for new hires after October 1, 2014. The employer, not the employee, is responsible for completing and maintaining the form. The form must be retained for the duration of the employee’s employment.
The Affirmation of Legal Work Status form is separate from employers’ requirement under the Immigration Reform and Control Act (IRCA) to complete the Employment Eligibility Verification form — the Form I-9. The latter form must be completed within three business days of hire. The retention requirements are also different in that the Form I-9 must be maintained for three years after date of hire or one year after termination, whichever is later.
To learn more about the Colorado law, click here.
Two recent developments related to litigation and background screening. First, a major fast food restaurant chain became the subject of a class action complaint recently, and second, a major business technology and services provider settled a class action complaint, the terms of which are sealed. In both cases, plaintiffs alleged willful violations of the Fair Credit Reporting Act (FCRA) for:
- Failure to provide individuals with a pre-adverse action disclosure containing a copy of their consumer report and a description of their rights under the FCRA as well as the opportunity to dispute the accuracy of the information contained in the consumer report (15 U.S.C. § 1681b(b)(3)); and
- Failure to make the proper disclosure regarding a background check in a stand-alone document, separate from the employment application, and obtain the proper authorization (15 U.S.C. § 1681(b)(2)(A)(i)).
This is not the first suit alleging these violations and it won’t be the last. Employers need to be aware of the requirements under the FCRA to provide job applicants with a disclosure and authorization requesting a background report in a separate document which isn’t muddied by other terms related to employment or releases of liability. Second, job applicants must be afforded the opportunity to review the background report if an employer will use information contained therein adversely in case the information is incorrect. This is part of the pre-adverse action process and it affords the job applicant the right to correct inaccurate or incomplete information with the background screening company that provided the information. It also provides the employer with the opportunity to be made aware of such. Companies who need advice in this area can contact us here at Arnall Golden Gregory LLP.
To read the complaints in their entirety, see: Anya McPherson v. Cannon Business Solutions, Inc., 1:12-cv-07761 (D.N.J., Sep. 16, 2014) and Sheryl Hornsby v. McDonald’s USA, LLC et al, 8:14-cv-02288 (M.D. Fla., Sep. 12, 2014).
Plaintiffs’ counsel have targeted a wide range of employment and tenant screening firms’ operations practices in recent litigation, alleging violations of state and federal requirements for user onboarding, report accuracy, file disclosures, data obsolescence, and data privacy requirements. Meanwhile, Federal Trade Commission enforcement actions and amicus briefs reveal important clues to agency thinking on obsolescence, privacy, and other requirements.
To stay ahead of the curve, how do smart CRAs and Resellers learn from these developments in reviewing their operations practices?
Join me and Jay Harris, Senior Director, National Background Data, for a complimentary webinar to learn more this Wednesday, September 10th at 1 p.m. EST. Click here and then click on Webinars to register.
The Federal Trade Commission (FTC) will host a public workshop entitled “Big Data: A Tool for Inclusion or Exclusion?” in Washington, D.C. on September 15, 2014, to further explore the use of “big data” and its impact on American consumers, including low income and underserved consumers. This is one in a series of workshops the FTC has held this year.
I will be a speaker on Panel 3: Surveying the Legal Landscape. Our panel will review various antidiscrimination and consumer protection laws and discuss how they may apply to the use of big data, and whether there may be gaps in the law. Other panels will consider the current environment and uses of big data and how these uses impact consumers, benefits and harms of the uses of big data on particular populations of consumers, and best practices for the use of big data to protect consumers. The FTC’s goal with this workshop is to address the following issues:
- “How are organizations using big data to categorize consumers?
- What benefits do consumers gain from these practices? Do these practices raise consumer protection concerns?
- What benefits do organizations gain from these practices? What are the social and economic impacts, both positive and negative, from the use of big data to categorize consumers?
- How do existing laws apply to such practices? Are there gaps in the legal framework?
- Are companies appropriately assessing the impact of big data practices on low income and underserved populations? Should additional measures be considered?”
The workshop is free and the day is filled with interesting panels. Chick here to view the agenda.
If you prepare Forms I-9 for your company, note that U.S. Citizenship and Immigration Services (USCIS) has switched the color of ink it uses to stamp certain documents that could be used for I-9 purposes from red to blue ink. This would be relevant, for instance, in a scenario where you have a high population of new hires that are refugees and they provide you with a refugee document. Just because the color of the ink has changed, doesn’t necessarily mean that the document is not valid. Therefore, moving forward you may see government documents with stamps in blue, red and black.
See below from a Customs and Border Protection post:
“As of July 1, 2014, U. S. Citizenship and Immigration Services (USCIS) began using a new secure blue ink for many of its secure stamps. The older secure red ink will be retired and no longer used by USCIS on the effective date.
USCIS stamps with secure blue ink:
- Department of Homeland Security (DHS) Parole Stamp
- Temporary I-551 Alien Documentary Identification and Telecommunication (ADIT) Stamp
- Refugee Stamp (Section 207)
- Asylum Stamp (Section 208)
- Initial / Replacement I-94 Stamp
USCIS will continue to use regular black ink on the following stamps:
- Approval Stamp (Applications Received)
- Denial Stamp (Applications Received)
- Director’s Signature Stamp (Certificates of Naturalization, Certificates of Citizenship)
- Other USCIS similar documents”
Roy Maurer from the Society for Human Resources (SHRM) has written a good article entitled Ban-the-Box Movement Goes Viral which describes Ban the Box measures nationwide. These measures impact private and public employers during the recruitment and hiring process and therefore must be considered as a part of a company’s overall hiring policies and procedures. Read the article by clicking here.