Transcript Navigating the Legal Minefield- March 2016

Their Past is Your Future.
With easyBackgrounds You See Both.
Background Checks
Navigating the Legal Minefield
Seacoast Human Resources Association Meeting
March 8, 2016
Agenda
• Overview
• Review of compliance and business risks
• Risk analysis and management
• What to expect with background screening
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Overview
• What is the purpose of background screening?
• Business environment
• Regulatory environment
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Risks to Manage
• Business risks
• Staff vs. staff
• Staff vs. business
• Customers
• Compliance risks
• Fair Credit Reporting Act (FCRA)
• Consumer Financial Protection Bureau (CFPB)
• Equal Employment Opportunity Commission (EEOC)
• International, e.g., European Union
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Business Risks
• Staff vs. staff – internal risks to own people
• Staff vs. business – internal risks to business
• Customers
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Regulatory Risks - FCRA
• Permissible purpose
• 16 different purposes allowed
• Typically, employment-related
• Disclosure to inform candidate
• That a consumer report and investigative consumer report may be
obtained
• Summary of rights
• Must be in writing and contain only the disclosure
• No waivers of claims or liabilities
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Regulatory Risks - FCRA
• Authorization – in writing, signed by candidate
• Prior to initiating screening
• Your responsibility
• Highly recommend providing copy to screener
• Protection of Personally Identifiable Information
• What is it?
• Information and Data Security Plan
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Regulatory Risks - FCRA
• Adverse Action
• Prior notice of intent with period to respond
• Right to free copy of report
• Right to dispute
• Summary of FCRA Rights
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Regulatory Risks - FCRA
• Record retention – 5 years
• Required – report
• Recommended
• Disclosure
• Authorization
• Pre-Adverse/Adverse Action notifications
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Regulatory Risks - EEOC
• Fair and consistent employment practices
• In practice
• Clearly articulate rationale for screening criteria
• Tie decision criteria to job responsibilities
• Make individual determinations
• Consistently apply decision criteria
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Regulatory Risks - States
• States have own programs
• Some federal preemption post-2003
• Higher level of restrictions
• More specific notice requirements
• Shorter reporting period limitations
• Limited communications options
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Regulatory Risks - States
• In practice, apply most restrictive requirements
• Federal
• State where candidate lives
• State where candidate will work
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Regulatory Risks - Local
• Large municipalities, e.g., New York City, San Francisco,
Philadelphia
• “Ban the box” – self-reporting of criminal history
• Credit reporting
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Regulatory Risks - International
• More an issue for screening companies
• Steadily increasing data privacy restrictions
• More specific disclosure and authorization requirements
• European Union in forefront
• Recent European Court decision increased restrictions
• Effectively eliminated EU-US agreements
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Risk Management
• Vet and hire a good screening partner
• Analyze your business risks
• Develop a clear, rational program
• Consistently do it!
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Vet Your Partner
• Consultation and support
• Education
• Dispute Resolution Procedure and Log Template
• Full File Disclosure Procedure
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Vet Your Partner
• 613(A)(1) Procedure (adverse public record notice)
• Information and Data Security Plan with testing
• Sample Research Procedures
• Provider Auditing Program
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Analyze Your Business Risks
• Staff vs. staff – for example
• Sex offenders
• Assault convictions
• Substance abuse
• Staff vs. business – for example
• Fraud convictions for accounting roles
• Verifications for professionals
• Drugs for healthcare staff
• Bankruptcy for regulatory staff
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Hiring Program
• Identify business risks
• Select screening targets based upon risks
• Identify hiring criteria based upon business roles
• Onboarding process – disclosure/authorization
• Individual case review process
• Write it all down!
• Apply it consistently
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What to Expect
• Requests for authorization copies
• Requests for additional or confirmatory information
• More time to complete than you might expect (or would like)
• Less status information than you might like
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Turnaround Time
• Average vs. actual
• Speed vs. protection of consumer interest – have to be right
• Many factors can affect TAT that don’t mean bad news
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Turnaround Time
• Criminal searches – 3,500+ jurisdictions
• Differing storage practices
• Some require clerk intervention
• Some impose daily limits on numbers
• Some redact PII on public terminals
• Obscure legal language
• Repository searches
• Often notarized authorizations required
• Direct clerk involvement
• Backlogs
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Turnaround Time
• Drug Screening – three layers of activity
• Collection
• Testing
• Medical Records Officer (MRO) review
• Drug Screening – Collection factors
• Candidate delay in getting to the collection site
• Paperwork lost by the candidate or the lab
• Failure by the candidate to bring a photo ID
• Collection late in the day or at the end of the week
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Turnaround Time
• Drug Screening – Testing factors
• Samples analyzed in batches
• Strict quality control requirements apply to each sample
• QC can require recalibration of equipment, re-analysis of spikes,
etc.
• Drug Screening – MRO factors
• Review and interpretation of results
• Obtaining additional information from candidate
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Turnaround Time
• Verifications
• Verbal vs. automated
• Missing, incomplete, or electronically signed release forms
• Inaccurately identifying actual employer
• Incomplete or inaccurate identification of educational institution
and location
• Failing to provide name used while in school or employed
• Incomplete or inaccurate (HR) contact information
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What Can You Know and When Can You Know It?
• Criminal searches
• Very sensitive – price of an error is very high
• FCRA very strict about maximum possible accuracy
• Premature indicator of records = non-compliant report
• Drug screening
• Similar to criminal searches + HIPPA
• Verifications
• Much less sensitive = updates can be more transparent
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How You Can Help Yourself
• Give yourself extra lead time
• Upload candidate authorizations to the search
• Require maiden and middle names and suffixes to names
• Identify employment location (state)
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How You Can Help Yourself
• Respond quickly to requests for additional information
• Set expectations with candidates regarding responsiveness
• Ensure candidates provide accurate employer and school
contact info
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Summary
• Select an experienced screening partner
• Thoughtfully identify your risks
• Develop and implement a rational management program
• Consistently apply your program
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Questions?
John Gilbert
Chief Operating Officer
easyBackgrounds, Inc.
[email protected]
Tel. 603-294-1406
www.easybackgrounds.com
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