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You got the FCRA. You are all set. Right?!

What else is out there?

Ban the Box Laws. Salary history bans. 7-year reporting.

Ban the Box

What does it mean?

The basic premise is to provide a fair shot to all candidates, regardless of their criminal background. While before, employers requested criminal information from a candidate before a background check. There has now been an increase in limiting this practice.

You can still run a criminal background check.

The idea is to push the consideration of criminal records further down the process to give everyone a fair chance. Some jurisdictions go a step further. They only allow an employer to request a background check after an interview or a conditional offer. Ban the box laws can vary and apply at the statewide or local level.

Where does it apply?

Currently, there are thirteen states and the District of Columbia with Ban the Box laws. These states are California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Each jurisdiction’s applicability may vary depending on job type, and whether you operate in the private or public sector.

Regardless of your local requirements, it is good to consider the following factors when you receive a criminal report:

• The nature of the job
• The severity of the offense
• How much time has passed

7-year reporting

This term pertains to the reporting of convictions and non-convictions on criminal records.

Convictions

The FCRA allows you to report convictions. How long ago they occurred is not a reason that precludes documenting the record. Nonetheless, 18% of states limit the reporting of convictions to seven years; these states are California, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, and Washington.

Non-convictions

While the FCRA allows for reporting of non-convictions for seven years, some states restrict this reporting time as well. Currently, the following states do not allow the reporting of non-convictions on a criminal record report, California, Kentucky, New York, and New Mexico.

Salary History Bans

Salary bans are in place as an effort to end pay discrimination. The depth of these bans varies by state and local.

Michigan and Wisconsin have taken legislative steps that stop the enactment of salary history bans.

The following have enacted salary history bans to some degree:

Statewide: Alabama, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Vermont, Virginia, and Washington.

Local jurisdictions: Albany (NY), Atlanta, Cincinnati (OH), Chicago, Columbia (SC), Jackson (MS), Kansas City (MO), Louisville, Massachusetts, Montgomery County (MD), New Orleans, New York City (NY), Richland County (SC), Salt Lake City (UT), San Francisco, St. Louis (MO), Suffolk County (NY), Toledo (OH), Westchester County (NY).

What can you do?

The practice of background screening companies varies.

Some companies may be putting you in a new position of potential liability. Understand ban the box laws and salary history bans. Please work with your provider to understand their reporting guidelines. Continue to build HR confidence in your screening process.

Have a conversation with your screening provider to ensure HR confidence in background checks and let them help you.

Share pertinent information with them so they can help you out. Things that could guarantee a productive conversation with your provider include the States you operate in, the types of positions you have, your recruiting process, and others.

With this information in hand, your screening provider is more equipped to provide suggestions for improvement to your application and background check process.

 

This information is provided as a courtesy, may change, and is not intended as legal guidance.

Healthcare exclusions – Another compliance challenge that can cost you hundreds of thousands per occurrence.

It’s another requirement to confuse the HR and Compliance teams in a healthcare organization, but not staying current with this ever-changing list will cost dearly.

Healthcare exclusions. What exactly are they?

The OIG, Office of Inspector General, maintains a list of individuals and entities that they’ve excluded from working at or with your company based on their behavior history, and it is referred to as LEIE.

There are various reasons that an individual or entity gets excluded from working in healthcare, including program-related crimes, patient abuse or neglect, felony health care fraud, felony convictions related to a controlled substance, failing to repay student loans, among others. This means that if any of your staff, even your receptionist, or any of your vendors, get onto the exclusion list, you run the risk of nonpayment for services and fines. These fines range from several thousand to hundreds of thousands of dollars.

To get an idea of current and historical fines, see the links at the end of this article. The calculation of the fines is complex, wide-ranging, and factors like proactive self-reporting rather than discovery through an OIG investigation can make a huge difference.

What’s so hard about checking a list?

The challenge is that this list is updated continuously, typically every month, and to make matters worse, it’s not just one list. Currently, there are at least 41 lists that exist across both federal and state levels. How are we supposed to monitor all of these lists to ensure we stay in compliance and avoid penalties?

In a perfect world, an excluded individual or entity would inform you as such. But the world isn’t perfect.

Some organizations choose to search the list in-house, but which list or lists are they searching for? No federal or state list is complete or current at any point in time. Are there other sources they should be checking?!

The first thing to do is to clearly understand what you are getting in your current background screening process and how knowledgeable your service provider is on this requirement. Once you understand your current exposure, you can reconsider your risk tolerance and determine the lengths to which you want to go. Regardless, the best penalty avoidance is to implement a proactive strategy to find potential matches of your candidates and employee pool. By educating yourself with the nuances, you will increase your compliance with healthcare exclusions.

To ensure HR confidence in healthcare exclusions and background checks, have a conversation with your screening provider and share pertinent information with them so they can help you out. Information, such as the States you operate in, types of positions, recruiting process, and others, can help a screening provider provide suggestions for preferred application and background check methods.

This information is provided as a courtesy, may change, and is not intended as legal guidance.

 

Below are links to current and historical OIG fines for excluded individuals. Click on any of these links, and search for Employing an excluded individual’:

Provider Self-Disclosure Settlements
https://oig.hhs.gov/fraud/enforcement/cmp/psds.asp

Civil Monetary Penalties and Affirmative Exclusions

https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp 

CIA Reportable Event Settlements

https://oig.hhs.gov/fraud/enforcement/cmp/reportable-events.asp 

 

Should you? Only you can decide the risk-reward of an employee drug screening program, but we’ll give you some food for thought.

• Establish healthy and safe work environments
• Show employees that you care about their health and safety
• Productivity improvement
• Reduce workplace injuries
• Decrease exposure to workers’ compensation claims

Ok, how does it work?

There are a couple of ways to carry out employee drug screening testing. The most common are

• Instant drug testing kits
• Lab-based drug tests

What’s the difference?

Instant drug tests are the most convenient and least expensive upfront option. But they could also open you up to potential liability when used for employment decisions. Issues that arise can include questioning the veracity of the chain of custody, mishandling of the specimen, missing validity testing, and lack of review by a Medical Review Officer (MRO). Lab-based drug tests are not as convenient and are more expensive. But it minimizes the potential liabilities you would have with an instant test. A lab-based test has a built-in process to assist with this:

• Chain of custody process
• Handled by professionals
• Includes validity testing (ensures that the specimen is consistent with a human sample)
• Medical Review Officer (MRO). An MRO reviews non-negative (industry jargon for potentially positive), and even negative results.
• Using a lab to conduct your drug screening will also provide you with multiple testing methods.

Drug tests available at a lab:

• Urine

– Detects the presence of substances within 24 hours up to a few days of use

– Rapid testing is available

• Hair

– Detects the presence of substances from a week to 90 days of use

• Saliva

– Detects the presence of substances from the very recent use of 12-24 hours

What else should I consider when using Lab-Based tests?

• Are their locations convenient for you and your candidates?
• If you are in a rural or under-served area, what testing locations are available
• Does their scheduling allow for an easy appointment setting?
• Do they accept electronic chain of custody forms?

How can you navigate drug screening easily?

Implementing a drug screening program requires thought and consideration. You will want to make sure you have a drug screening policy and are aware of the federal, state, and local laws. With all these factors in mind, HR Preferred leans on drug screening experts to help clients navigate this process and build confidence in their employee drug screening program.

Gain HR confidence in drug screening and background checks by having a conversation with your screening provider. Share pertinent information with them so they can help you out. Which states do you work in? What positions do you hire? What does your recruiting process look like?

This information helps a screening provider deliver a preferred application and background check method.

 

This information is provided as a courtesy, may change, and is not intended as legal guidance.

Why should you care about the FCRA?

We are all consumers at one point or another in our lives.
You like to avoid significant settlements.

• The FCRA is the source of hyper-technical lawsuits.
• Over 4900 cases filed in 2019
• Over the last ten years, the cost to employers was over $234,00,000.

The FTC (Federal Trade Commission) and CFPB (Consumer Financial Protection Bureau) also oversee background checks.

How can you comply?

As highlighted in our previous article, it takes many players to create an FCRA compliant background check process.

What are the Employer’s responsibilities?

 

Before you process a background check

Section 604 (b) requires that the Employer has a Permissible purpose.

Employers have a permissible purpose of ‘Employment Purposes’ when running a background check. This need is simple to do and is taken care of when you apply for screening services. You should also certify whenever processing a background check request.
Section 604 (b)(2) is effortless as well but has led to many class-action lawsuits.

Your disclosure and authorization forms need to be ‘clear and conspicuous.’

What does that even mean?! Could they be on the same page? Should it be separate? Is there a limitation on the jargon you can include? All we are trying to do is reduce the forms we use!

Now that you have updated your forms, how can you make sure that you are only using the updated version?!

After you process a background check

All employment decisions are the employers.

If you are to take an adverse action based on the information provided, then per section 604 (b)(3), you need to start the Adverse Action process.

The adverse action process is a two-step process.
• Pre-Adverse Action
• Adverse Action

Pre-Adverse

The Employer has yet to make a final decision. The Pre-Adverse Action letter informs the candidate that there have been findings on their background check. This letter provides your candidate a copy of their report, a summary of their rights, and contact information of your screening provider. Your candidate is now able to discuss or dispute any incorrect information, with your screening provider.

Adverse Action

You have now decided to take an Adverse Action (e.g., not to hire, promote, etc.). You need to provide the candidate with an Adverse Action letter.

What about during a background check?

Several factors affect the results a background screening provider can and cannot provide you. Have a conversation with your screening provider about reporting limitations.

Be proactive

Review your disclosure and authorization forms, and your processes to make sure you are making your best effort to follow the FCRA regulations.

Have a conversation with your screening provider to ensure HR confidence in background checks and let them help you. Share pertinent information with them so they can help you out. Things that could guarantee a productive conversation with your provider include the States you operate in, types of positions you have, your recruiting process, and others.

With this information in hand, your screening provider is more equipped to provide suggestions for improvement to your application and background check process.

This information is provided as a courtesy, may change, and is not intended as legal guidance. 

Source: Settlement amounts and number of cases www.goodjobsfirst.org

 

Whether you are new or seasoned in the HR department, you’ve certainly come across the term FCRA and FRCA Background check.

FCRA: What does this four-letter acronym mean?

FCRA = Fair Credit Reporting Act.

The Act came about over 50 years ago and still leaves many people confused. The intentions are to protect everyday consumers in files that are kept by credit reporting agencies. It promotes the accuracy, fairness, and privacy of consumer information.

Who needs to comply?
Everyone who is involved with an FCRA background check.

Most people support the Act’s spirit, but there are continuous debates on how one complies with the Act. Add the growth of hyper-technical lawsuits to the mix. Most people find themselves dazed and confused as they try to navigate the ever-changing landscape.

How do you comply?
We will go through a high-level review of the Act and the requirements as of this writing. A link to the full text of the Act is available at the end of this article.

Below you will find references to consumer, user, and consumer reporting agencies (CRAs). A consumer is your candidate or applicant, and the user is the Employer or its’ designee.

Section 604 (b)
• User certifies compliance with the FCRA requirements
• In accordance with the written instructions of the consumer to whom it relates.
• It has a Permissible Purpose.

Section 604 (b) (2)
• User has disclosed to the applicant that it may obtain a background check
• This disclosure needs to be clear and conspicuous
• User has received authorization from the consumer (candidate) in writing to perform a background check

Section 605
• Consumer Reporting Agencies must follow limitations on reporting provided in the FCRA and Federal & State Laws

Section 607 (b)
• Consumer Reporting Agencies shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

Section 604(b)(3)
With limited exception, ‘when using a consumer for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates.’
• A copy of the report
• A summary of rights

Section 611
• The consumer (candidate) may dispute the report if it is incomplete or inaccurate

Section 611(a)
• The Consumer Reporting Agencies must reinvestigate if there is a dispute
• ‘if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information.’

Section 604 (b)(2)
• The user makes the final decision.

How can you apply these changes?

The overview provided above is a lot of information to absorb and can be even more technical to apply. Check out our article, 178 million reasons you should care about the FCRA, for practical tips on how to follow the FCRA guidelines. Always start by reviewing your internal processes and forms to identify potential gaps. You should also make sure you are confident with your screening partner’s FCRA compliance.

Have a conversation with your screening provider to ensure HR confidence in FRCA background checks and let them help you.

Share pertinent information with them so they can help you out. Things that could guarantee a productive conversation with your provider include the States you operate in, the types of positions you have, your recruiting process, and others.

With this information in hand, your screening provider is more equipped to provide suggestions for improvement to your application and background check process.

This information is provided as a courtesy, may change, and is not intended as legal guidance. 

Source:
https://www.ftc.gov/enforcement/statutes/fair-credit-reporting-act 
https://www.ftc.gov/system/files/documents/statutes/fair-credit-reporting-act/545a_fair-credit-reporting-act-0918.pdf 
https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf

 

What’s the potential liability of your candidate’s driving behavior if your business relies on drivers and how do you proceed with checking their motor vehicle records?

Do you need to?

DOT-regulated 

You are required to access their drivers’ Motor Vehicle Records (MVR) annually and keep the records for many years.

Non-DOT regulated

You can decide if, and when, to check a candidate or employee’s driving record.

Why check an MVR Report?

The Occupational Safety & Health Administration (OSHA) published a guidebook almost 20 years ago. With the increase of vehicles on the road, this has even more relevance today. OSHA provides a sobering reality of motor vehicle crashes in the US, “Every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs and every 5 seconds a crash occurs. Many of these incidents occur during the workday or during the commute to and from work. Employers bear the cost for injuries that occur both on and off the job.”

OSHA goes on to quote a study performed by the National Highway Traffic Administration (NHTSA), which calculated the cost of motor vehicle crashes to employers. They found that “Motor vehicle crashes cost employers $60 billion annually in medical care, legal expenses, property damage, and lost productivity. They drive up the cost of benefits such as workers’ compensation, Social Security, and private health and disability insurance. Also, they increase the company overhead involved in administering these programs.

The average crash costs an employer is $16,500. When a worker has an on-the-job crash that results in an injury, the cost to their employer is $74,000. Costs can exceed $500,000 when a fatality is involved. Off-the-job crashes are costly to employers as well.”

What information do you get?

An MVR report is a general overview of a person’s driving history.

The information provided and coverage varies by state. This report provides you with their current license status, suspensions, cancellations, DUIs, violations, and revocations. Some records may be available at the county court record level, running a driving record search provides you the most up-to-date status, including records that don’t show up at the court level.

How else can I get this?

Some employers operating in states with high state access fees try to cut costs by having the candidate provide their driver abstract. This method might save them on their upfront costs, but would it be ok that you may be looking at a doctored record and not know it?!

Insurance companies will also calculate their exposure to risk by reviewing the driving history of your drivers. In most instances, they will provide you with limited info and might leave open and unknown risks.

Why use a background screening partner?

A screening partner ensures that you are looking at the most up-to-date, accurate, and complete data available especially with motor vehicle records. They also have access to these records and work together with providers that process millions of driving record requests.

Additionally, it is now more cost-efficient to continuously monitor your fleet of drivers and give you alerts.

As with any part of your background screening process, you are more familiar with your company’s risk appetite. The best way to build HR confidence in background checks is to work with a background screening partner to understand the products available and how they could work with your current background check process.

Gain HR confidence in background checks by having a conversation with your screening provider. Share pertinent information with them so they can help you out. Which states do you work in? What positions do you hire? What does your recruiting process look like? This information helps a screening provider deliver a preferred application and background check method.

This information is provided as a courtesy, may change, and is not intended as legal guidance.

As with any building, you could use many tools and materials to get to your finished project.

This idea also applies when you build your screening process.

How strong should it be? How deep should it go? Where should you be looking?

Once you understand the available reports, you can decide if you should use them in your screening process.

You operate a non-regulated business.

A non-regulated business can be defined as those not in healthcare, financials, or DOT regulated.

As reviewed in the previous article, a base screening package should include a Multi-State and County criminal search. The depth and breadth of these searches depend on your appetite for risk.

What else is there?

There is another level of criminal searches that you should be aware of.

Let’s be clear. While the Multi-State and County searches include some Federal sources, they don’t include Federal criminal records. A Federal Criminal Records search reviews criminal records at the Federal level. You will not find these at the County or State level.

Records that you find with a Federal Criminal Records search can include mail fraud, drug trafficking, embezzlement, and kidnapping. Like the other criminal searches we’ve discussed, you have options. You can search these reports by the given name only or can include developed names from an Address History Search.

You operate a regulated business.

A regulated business can be defined as those that operate in healthcare, financials, or DOT regulated. 

Regulated businesses have other points to consider.

What are the regulations for your industry? 

While the criminal reports mentioned provide you with quality information, we need to know, does this follow your regulations? Most DOT regulations center on non-criminal details, (e.g., Verifications, References, Drug Screening, etc.), some industries focus more on the types of criminal reports.

Healthcare is one of the most regulated industries that need specific criminal reports for pre-employment purposes. 

Types of healthcare businesses include a Hospital, Nursing Home, Long Term Care Center, or Assisted Living Facility.

Let’s say that you were utilizing the suggested base package of an Address History Search, Multi-State, and County Criminal Records Search. In some situations, you may be out of compliance. While you have reduced your initial expense, you are increasing your compliance liability in the process.

A base package cannot replace a fingerprint or state-specific search requirement. A few states would allow these reports to serve as your screening process, but most have specific minimum guidelines. These vary by State. You always have an option to strengthen that search by supplementing it with other search types.

How can a screening company help you?

Background checks are even more nuanced when working in a regulated industry. The requirements can become even more nuanced if you are operating in a regulated sector among many states.

The best way a screening company can help build HR confidence is by understanding the industry and state(s) you operate in, your risk level, and your recruiting process.

Gain HR confidence in background checks by having a conversation with your screening provider. Share pertinent information with them so they can help you out. Which states do you work in? What positions do you hire? What does your recruiting process look like? This information helps a screening provider deliver a preferred application and background check method.

This information is provided as a courtesy, may change, and is not intended as legal guidance. 

Are you questioning whether you should be conducting employee drug screening? There are 9,000+ reasons why you should definitely be conducting them. Read on to learn more.

 

Are you required to? 

Do you operate in the Department of Defense (DOD) security-sensitive industries?

Have a fitness for duty requirement from the Nuclear Regulatory Commission (NRC)?

Do you have Department of Transportation (DOT) regulations?

Then, you’ve got to.

The following industries fall under DOT-regulated programs for drug and alcohol testing:

• Federal Motor Carrier Safety Administration (FMSCA) – Motor Carriers Employers & Employees
• Federal Aviation Administration (FAA) – Aviation Employers & Employees
• Federal Railroad Administration (FRA) – Railroad Employers & Employees
• Federal Transit Administration (FTA) – Transit Employers & Employees
• Pipeline and Hazardous Materials Safety Administration – Pipeline Employers & Employees
• United States Coast Guard (USCG) – Maritime Employees & Employers

If you are a federal contractor receiving over $100,000, or a grant of any size, you may want to. The Drug-Free Workplace Act requires it.

If you are not in a DOT business or federal contractor, please see our article for Non-Regulated Drug Screening.

How often?

Well, that depends on the program you are working in. The DOT regulations specify which tests are required, how often, and what to look for. Let’s look at motor carriers (FMSCA) for a quick idea:

• Random:  CDL drivers must be randomly tested throughout the year (§382.305)
• Reasonable suspicion – Drivers who appear to be under the influence of drugs or alcohol can be immediately tested (§382.307).
• Return-to-duty: Required for drivers who tested positive, refused, or otherwise violated the prohibitions of 49 CFR Part 382 Subpart B; and who have completed the return-to-duty process with a DOT-qualified substance abuse professional.
• Follow-up: Required for drivers who tested positive, refused, or otherwise violated the prohibitions of 49 CFR Part 382 Subpart B; and who have completed the return-to-duty process with a DOT-qualified substance abuse professional, and have tested negative for a return-to-duty test.

That’s easy. Test, and I’m done. Right?!

In 2019 the FMSCA settled with over 1200 companies for violations. Settlements included drug screening violations. Penalties were from $800 to $143,000, averaging at nearly $9,000 per company.
Which forms are you using? How do you create a random testing pool? What’s a Medical Review Officer (MRO)?

Work with a provider that is proficient in the requirements and can help guide you through the process. If you have a drug screening program, you should have a drug screening policy, train supervisors, and educate employees.

Drug screening providers help you create a reliable program and let you know of any changes. Are you still using paper-based custody and control forms?

What can you do today?

Drug screening is another area where it only gets more nuanced. Review your requirements, reconsider your risk tolerance, and create a drug screening policy if you don’t have one. It will take time to develop or review your drug screening policy and procedures. Ensure you are following guidelines and that you have confidence in your process.

Gain HR confidence in employee drug screening and background checks by having a conversation with your screening provider. Share pertinent information with them so they can help you out. Which states do you work in? What positions do you hire? What does your recruiting process look like? This information helps a screening provider deliver a preferred application and background check method.

This information is provided as a courtesy, may change, and is not intended as legal guidance.