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In the dynamic landscape of employment law, staying abreast of legal developments is paramount for businesses and individuals alike. One ruling that has sparked significant discussion and implications recently is the California Court of Appeal decision in All of Us Or None Of Us v. Hamrick, which could potentially reshape the realm of employment background checks in the state.
Issued on 05/26/2021, the ruling stems from a civil rights complaint filed in Riverside, California, by a Civil Rights Organization advocating for the rights of former and currently incarcerated individuals. At its core, the case addresses concerns surrounding the accessibility of Personally Identifiable Information (PII) on public access portals, particularly in Los Angeles County.
A key aspect of the ruling mandates the redaction of all PII other than the name from public access portals. While this move aims to safeguard the privacy rights of individuals involved in the criminal justice system, it presents a significant challenge for background check companies and employers conducting pre-employment screenings.
Under the Fair Credit Reporting Act (FCRA) guidelines, obtaining additional identifiers beyond just the name is often crucial for thorough background checks. However, with the new requirement limiting the number of names per full docket order to access such information, the process becomes more cumbersome and time-consuming. As a result, delays in background check completion ranging from a week to several months are anticipated. Most searches that are clear will be completed within 48 to 72 hours. However, if additional research is needed to clarify a record, a full docket must be ordered.
The ramifications of this ruling are far-reaching, impacting employers across various industries. In an era where hiring decisions are increasingly scrutinized, ensuring compliance with evolving legal standards is essential to mitigate risks of legal action and reputational damage. Employers in California must navigate these changes with diligence and adapt their hiring practices accordingly. It’s imperative to strike a balance between conducting thorough background checks to ensure workplace safety and compliance with legal requirements while also respecting the privacy rights of job applicants.
As the legal landscape surrounding employment background checks continues to evolve, businesses must stay informed and adaptable to ensure compliance and integrity in their hiring processes. At SELECTiON.COM®, we understand the complexities and challenges presented by regulatory changes such as the recent California Court of Appeal ruling.
By partnering with SELECTiON.COM®, businesses can benefit from our comprehensive understanding of regulatory requirements and access to cutting-edge technology and resources for efficient and reliable background screening solutions.
In an era where hiring decisions are subject to increasing scrutiny and legal complexity, trust SELECTiON.COM® to be your partner in navigating the ever-changing landscape of employment background checks with confidence and peace of mind.
Contact us today to see how SELECTiON.COM® can improve your background check process.
This page gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
This page is provided for information purposes only, and the contents hereof are subject to change without notice. This page is not warranted to be error-free nor subject to any other warranties or conditions, whether expressed orally or implied in law, including implied warranties and conditions of merchantability or fitness for a particular purpose.
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Businesses are required to let an applicant know why they were rejected. Thanks to the Fair Credit Reporting Act (FCRA), there are laws put into place to make sure applicants are informed of their rights. Failure to implement this step of the background check process now can mean costly litigation in the future.
The Importance of Being FCRA Compliant and Sending Adverse Action Letters
If a company decides not to hire an applicant due to their background check, regardless of the reason, the company is obligated to notify the applicant. FCRA guidelines mandate that the company must send the applicant a Pre-Decision Letter notifying them of the potential for adverse action based upon information uncovered during the pre-employment screening. Adverse action is a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee, according to the FCRA.
What is a Pre-Decision Letter?
A pre-adverse action letter is a notice to the applicant that the company might not hire them due to information uncovered during their background check. This initial mailing must also include a copy of their background check and a Consumer Rights Letter. Keep in mind that this letter is not the final decision notice.
According to the FCRA, if a criminal background report contains information which “in whole or in part” may cause you to take any adverse action, including rejecting that candidate for employment, denying a promotion, or terminating a current employee, then you must provide a copy of the report to the applicant and the CFPB’s summary of rights prior to making your decision final.
It’s suggested that you wait 4-5 business days after you mail a copy of the report and the summary of rights, before contacting the applicant with your final decision. By sending a Pre-Decision letter, this allows time for the applicant to address or dispute any incorrect information before the company makes their final decision.
What is an Adverse Action Letter?
It is a final notice that informs the applicant the company decided to either not to hire them, cancel their offer of employment, or terminate their employment.
Failure to follow the above proper procedure could lead to litigation.
SELECTiON.COM® stays up-to-date on all FCRA regulations and provides the tools to keep you compliant with the click of a button via our proprietary web portal, Fastrax®. We offer pre-populated Pre-Decision and Adverse Action Letters free of charge on your custom dashboard, or by checking a box, our clients can choose to have our in-house staff do the mailings for them.
If you don’t know what the Summary of Rights or Adverse Action forms are, not to worry, we have you covered! These forms are conveniently available on the Fastrax® website.
Contact us today to see how SELECTiON.COM® can improve your background check process.
Blog, Resources
The world is (hopefully) getting back to normal soon now that vaccines are readily available to the general public. That means we can move back into our offices and begin the daily grind alongside each other once again. Right? That may be true for some, but many companies will likely decide to keep part of their workforce remote or offer flex positions.
The COVID-19 pandemic has fundamentally transformed the office workspace. A recent study by LiveCareer found that 61% of employees want their employer to let them work in a remote capacity indefinitely. Also, 29% of working professionals go so far as to say that they would quit if they had to return to the office after the pandemic. That leaves companies set on returning to the typical 9-5 in-office workspace in quite a predicament.
If you were one of the many companies delaying implementing remote positions pre-COVID-19, you weren’t alone. Among many reasons, companies feared productivity issues would be a logistical nightmare. And, while there have certainly been some bumps along the way, many companies have effectively implemented remote positions. A recent survey by Mercer, a human resources and workplace benefits firm, showed 94 percent of 800 employers surveyed indicated productivity was the same or higher with their employees working remotely.
Many companies are considering drastically downsizing their office space for the coming year and offering flex positions.
According to a survey from the consulting firm, PwC found that executives and employees are converging around a post-pandemic future with a lot more flexibility, yet few are prepared to completely abandon the office space. As a result, by design or default, most companies are heading toward a hybrid workplace where a large number of office employees rotate in and out of offices configured for shared spaces.
That seems to confirm LiveCareer’s further findings. Thirty percent of professionals surveyed said that if going back to the office is inevitable, they’d like to work there three days a week. Twenty-five percent said two days a week, and 19% said one day. Just 9% said four days.
So, what does this mean for you? And how does this affect hiring and background checks?
Remote hiring was likely a fast-tracked implementation for many, so now is the perfect time to reflect on what did and did not work over the last year. What steps of the hiring process can now be improved and secured?
Here are our hiring tips for the post-COVID-19 reality:
- Clearly define your background check requirements per position. The Equal Employment Opportunity Commission (EEOC) already recommends this to avoid disparate impact. Adding fully remote or flex job offerings may change the background check selection, so be sure to appropriately update your handbooks or hiring guidelines.
- Be sure to make it clear if you plan on making a currently remote position in-house once the pandemic is over.
- Are you going to offer flex positions? If so, be clear on when they are expected to be in the office. For example, will it be one or two specific days a week or days of their choosing, etc…
- If you require a video interview, be sure to use an application compatible with the most common devices, such as Apple, Android, and Windows.
- There has been a significant shift in how people shop, resulting in an uptick in hacker activity and an increased need for cybersecurity. Therefore, it’s more important than ever to partner with a background check company that offers an easy-to-use and secure online portal for applicants to enter personal information.
In addition to everything above, it’s important to note that while EEOC recommendations will likely evolve with the new remote/flex working reality, the requirement of strict Fair Credit Reporting Act (FCRA) regulation adherence remains the same.
- Always obtain a signed release form.
- If a person is denied the position, regardless of the reason, always send a copy of their background check, a Pre-Decision letter, and a copy of their consumer rights.
- Follow up with an adverse action letter five business days later.
In these uncertain times, it pays to have a trusted partner who can provide the data you need and the customer support to answer all your questions. Our unparalleled support, combined with our nationwide researcher network, makes SELECTiON.COM® a valuable background check partner.
Our five-star customer support team is not only industry experienced but tenured in their time with our company. Our staff is available to you via phone, email, and chat, Monday through Friday, from 8 am to 8 pm.
SELECTiON.COM® offers employment and education verifications, character reference reports, criminal history reports, and our Search America® locator tool is the largest in the industry with other 1 billion records.
Contact us today to develop a fast and accurate background check program to meet your needs.
NOTE: This article gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
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According to the U.S Department of Justice’s Bureau of Justice Statistics (BJS), over 90 million individuals, approximately 30% of the population in the country, have a criminal record on file in state criminal history repositories.
This statistic does not include traffic infractions (e.g., improper turns, parking violations, failure to stop, some speeding violations, among others) which are the most common form of infractions and also do not appear in criminal records (when they are paid, or the court citation was fulfilled), because traffic tickets are classified as infractions and are considered non-criminal offenses.
Misdemeanors (e.g., Driving Under Influence (DUI), disorderly conduct, use of controlled substances, simple assault, among others) are more serious offenses than infractions and appear in criminal records. In some circumstances, a misdemeanor can escalate to a felony. Felonies are the most serious types of crimes (e.g., DUI that causes injury, serious bodily injury or death, murder, robbery, aggravated assault, rape, among others). Like misdemeanors, felonies also appear in the criminal history on file in state criminal history repositories.
Criminal records vary from one-time arrest, where charges may be dropped completely, to violent, serious, and lengthy criminal histories. The BJS statistics show that the majority of arrests are for non-violent and minor offenses, only 4% of the arrests are for felonies, and most arrests, both misdemeanors and felonies, do not end in a conviction.
According to the Society for Human Resource Management, nine out of ten employers run criminal background screens on applicants as part of their hiring process. Employers require consumer reports in order to ensure a safe work environment for employees and to assess the overall trustworthiness of the job candidate. Background screenings also reduce theft, embezzlement and other criminal activity. Some background screenings are required by state law for a position such as a teacher or licensed medical practitioner. Employers are not only protecting the company’s reputation but are also reducing the risk of legal liability for negligent hiring. Thus, in the selection process, some companies reject applicants who have criminal charges.
Employers should be aware that it is highly likely that consumer reports may have negative information about the applicants. In these instances, a greater understanding is important to dispel some employers’ myths or paradigms. “The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges or the charges are dismissed,” according to the Equal Employment Opportunity Commission (EEOC). By contrast, records of convictions of crimes will usually serve as sufficient evidence that a person engaged in improper conduct.
Finding a point of balance and justice between millions of people with criminal records at the time of getting a job and the legitimacy of the employers to not consider an applicant for employment based on their criminal records, has become a great challenge. The law, jurisprudence, and institutions like the EEOC have all weighed in on this situation.
First, the Fair Credit Reporting Act restricts Consumer Reporting Agencies (CRA’s) reporting any non-convictions older than 7 years, unless the applicant is expected to earn 75,000 or more annually [15 U.S.C. 1681c (a) (2) (5)]. Some state laws and local ordinances also restrict CRA’s from reporting non-convictions regardless of age.
Thereby, the large number of applicants who have criminal records are not marked for life because non-convictions (records of arrest and certain adverse information) are not reflected in the consumer reports with the passage of some years and may not be reported at all. These restrictions create a point of balance between employers and applicants with criminal records. For employers, they can still know relevant information about the applicant, like convictions, and for the applicants because not all the information about their criminal history may be disclosed. SELECTiON.COM® works diligently on compliance with federal and state law regarding these restrictions.
Second, the jurisprudence has cited three factors that employers shall seriously consider in their hiring policies when the applicant has a criminal record (Green v. Missouri Pacific Railroad, 549 F.2d 1158, 8th Cir. 1977). The three factors are; the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence, and the nature of the job held or sought.
Finally, the EEOC has consolidated and updated enforcement guidance regarding the use of arrest or conviction records in employment decisions. The guide describes two types of discrimination in employment decisions, disparate treatment and disparate impact. According to the EEOC, disparate treatment means “a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.” For its part, disparate-impact liability may occur when “an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII and may violate the law if not job-related and consistent with business necessity,” the guide explains.
It is very important for decision-makers, hiring officials, and managers to know the law, jurisprudence, and the EEOC enforcement guidance to allow employers to make hiring decisions appropriate and equitable, without engaging in discrimination.
In conclusion, employers are challenged to provide this large number of individuals the opportunity to apply, be considered, and hired for a job. In the end, it is in the employer’s hands to analyze the seriousness of the applicants’ conduct and create a balance between an opportunity and responsible hiring.
This article gives a general overview of the legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your own legal counsel for all applicant approval matters.
Blog, Resources
NAPBS Has Evolved Into a Global Organization and Rebranded as the Professional Background Screening Association.
On September 9, the National Association of Professional Background Screeners (NAPBS) publicized that its members voted at the 2019 NAPBS Annual Conference in San Antonio, Texas, to approve the association’s rebrand to the Professional Background Screening Association (PBSA).
Established in 2003, PBSA is the only association of its kind and has become the trusted authority for the screening professionals. PBSA was established to promote a high level of ethics and performance standards for the background check industry. This association currently represents over 880 member companies engaged in employment and tenant background screening across the United States.
This rebranding allows for the association to transition fully into a global organization. Currently, the organization has three international chapters and is expanding. The rebrand includes a new logo, branding, and website.
PBSA Member companies are Consumer Reporting Agencies defined under the Fair Credit Reporting Act, and these agencies are regulated by both the Federal Trade Commission and Consumer Financial Protection Bureau. SELECTiON.COM® is a proud member of the PBSA.
The PBSA offers a Background Screening Agency Accreditation Program. Its purpose is to achieve excellence through high professional standards, including the adoption of best practices, awareness of legal compliance, and development of rules that protect clients and consumers. SELECTION.COM® is part of this prestigious program as well, and achieving this certification was no easy task.
To become an accredited firm, SELECTiON.COM® had to demonstrate initial and ongoing compliance with the accreditation standards as prepared by the Background Screening Credentialing Council. Compliance is determined through a rigorous review and on-site audits, which are completed by an independent third-party auditor. SELECTION.COM® documented each of the policies and processes required in each area within the standard and demonstrated visible compliance with their policies to the auditor. The program also required SELECTiON.COM® to commit to uphold and deliver the highest level of industry standards in the following critical areas: Information Security, Legal and Compliance, Client Education, Researcher and Data Standards, Verification Services Standards and Business Practices.
Consumer Reporting Agencies (CRAs) like SELECTiON.COM® help provide the country and its citizens with a safer environment in which to live, work, and play. The common goal for CRAs and PBSA is to continue working together to identify best practices and promote the highest ethical standards.
Contact us today to learn more.
This article gives a general overview of the legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your own legal counsel for all applicant approval matters.
Back to Basics, Blog, Resources
What is E-Verify?
E-Verify is a system that compares data from your Form I-9 and Employment Eligibility Verification to U.S. Department of Homeland Security and Social Security Administration records to validate that employees are approved for work in the United States.
E-Verify is mandatory for federal contractors with contracts containing the Federal Acquisition Regulation E-Verify clause, and some states require the use of E-Verify for employers. Many employers participate voluntarily in E-Verify as a supplement to Form I-9.
Today, E-Verify has over 75,000 registered employers of all sizes with about 1,400 new participating companies every week.
Which states require E-Verify?
Twenty states mandate the use of E-Verify for at least some public and/or private employers:
- Alabama
- Arizona
- Colorado
- Florida
- Georgia
- Idaho
- Indiana
- Louisiana
- Michigan
- Mississippi
- Missouri
- Nebraska
- North Carolina
- Oklahoma
- Pennsylvania
- South Carolina
- Tennessee
- Utah
- Virginia
- West Virginia
When should E-Verify be used? 
E-Verify is only used after an offer of employment has been accepted by the individual applicant.
E-Verify should not be used to pre-screen individuals for employment. E-Verify is not a criminal background check. It is a Human Resources onboarding function used to verify legal eligibility to work.
Once the account has been set up, the E-Verify program must be used on ALL new employees, (Federal Contractors have different regulations).
It cannot be used later than the third business day after the individual has started to work. The employer has three days after the date of hire to verify legal eligibility to work.
For employers to stop using the E-Verify program, they must provide 30 days written notice to the government, per the signed Memorandum of Understanding.
SELECTiON.COM®’s software integration with the federal government’s Employment Verification Program (E-Verify) allows employers to quickly and accurately verify new employees’ legal right to work.
With SELECTiON.COM®, you can manage your work authorization program through Fastrax Select® from start to finish. Our secure services help you to ensure that your workforce is legally authorized to work. Our program improves the efficiency of your Form I-9 employment verification process and the accuracy of your payroll and tax reporting. It also substantially decreases human error in completing Form I-9s.
In turn, it also cost-effectively reduces your exposure to government audits, financial penalties, and negative publicity resulting from non-compliance.
Contact us today to see how SELECTiON.COM® can take your employee onboarding process to the next level.
