How Ban the Box Affects Employer’s Background Screening Process

How does Ban the Box Really Affect Your Background Screening Process?

How does Ban the Box Really Affect Your Background Screening Process?

by Thomas C. Lawson, CFE, CII

Ban the Box – Recently questions have arisen concerning how the background check process will be affected by ban-the-box laws such as the August 13, 2014 enactment of the San Francisco City and County’s ordinance which precludes employers of 20 or more employees from including a request for criminal history disclosures in their employment application forms.

Other jurisdictions throughout the U.S. have passed similar laws which seem politically motivated since they do little more than to formally install the original Equal Employment Opportunity Commission’s (EEOC) criminal history use guidance document and recently updated Federal Trade Commission (FTC) and EEOC joint guidance documents as local law.

Essentially these ban-the-box enactments serve as the basis for emphasizing what the EEOC guidance documents have already stated which is to drive home the need to carefully adjudicate the use of criminal histories in the hiring process.  Even though ban the box may seem redundant; that does not mean they should be ignored.

What most of these laws draw out first, and what employers must pay close attention to, is compliance with the posting requirements which can vary among jurisdictions.

Most jurisdictions already have aftermarket complaint poster suppliers who address the new posting language. Check with your local or state Chambers of Commerce to see if they offer pre-printed posters which meet the posting requirement.

The next hazard for employers and what seems to be more easily ignored, or simply missed by many human resources departments, is that the criminal history disclosure request resides best in a standalone consent form which provides legal consent for the background check and not in the employment application.

Many are loathe to remove such requests from their application forms but if you don’t and you hire a candidate within a ban the box jurisdiction, your acts will be ripe for scrutiny by plaintiff’s attorneys.

Omitting this component from the employment application is not only a best practice, but is now mandated under these ban-the-box laws, which are growing in popularity. It is still up to the human resources professional to comply with the law even when the pathway to legal definitions and practical applications appear to be dimly lit.

So what do you do if you use a proprietary background check consent form that requests a criminal history disclosure?

With most of the ban-the-box laws there is definitely confusion about whether or not a background check consent form may include requests for criminal history disclosure in ban-the-box jurisdictions.

That confusion is exacerbated by the almost universal statutory language stating that criminal history disclosure requests are prohibited from inclusion on employment applications which background check consent forms are clearly not.

Naturally some plaintiff’s attorneys will argue that consent forms are part and parcel to an employment application and corporate council may agree or not.

EEOC and FTC/EEOC guidance documents, as well as most of the ban-the-box laws, clearly separate the process of seeking consent until only after the first interview and/or conducting the background check only after a conditional offer of employment is made.

In summary, the best practice is to remove any reference to a criminal history in the employment application form and create standalone background check consent forms that either includes or omits the criminal history disclosure request.

Depending on whether or not you are in a ban-the-box jurisdiction, you can choose the appropriate forms. That way you are covered in both circumstances; which goes a long way to keeping the plaintiff’s bar at bay.

Workers’ Compensation – Why Good Employment Screeners Don’t Sell These Records

Workers' Compensation

Workers’ Compensation

by Thomas C. Lawson, CFE, CII

Works’ Compensation Records – APSCREEN is constantly asked why we don’t sell Workers’ Comp records for employment screening purposes so in case you are using such records, or considering the use of same in your screening process, I will detail here why APSCREEN does not purvey Workers’ Compensation Records.

To begin, all Workers’ Compensation claims are private between the employer, employee and insurance carrier, so there is no publicly available history of claims in any database except the National Insurance Crime Bureau’s Claims History repository, which is an industry-supported enterprise and is ONLY accessible by member insurance companies.

When an employee’s claim is denied however, if the employee wishes to appeal the denial, it goes through the state system or (in California) the Workers’ Compensation Appeals Board (WCAB).

Only then does the case become public record, and because the public record dissemination policies differ in each jurisdiction (in California, for example, there are 24 jurisdictions) the records are at best, inconsistent and incomplete, which immediately qualifies them to be illegal for Consumer Reporting Agencies to report for employment purposes under FCRA Section 613(a)(2). This law requires that essentially any reported record that could affect a consumer’s ability to gain employment must be “complete and up to date.”

An employer may only use Workers’ Compensation information if an injury might interfere with one’s ability to perform required duties. However, under the federal Americans with Disabilities Act (ADA), employers cannot use medical information or the fact an applicant has filed a workers’ compensation claim to discriminate or deny employment against applicants. (Section 42 USC §12101).

Further, any Workers’ Compensation information can only be considered after a legitimate job offer has been made.

It is critically important to remember that if you seek and obtain Workers’ Compensation records from a non-FCRA compliant background checker you are not actually reviewing the history of Workers’ Compensation claims … but instead only those claims that have been denied and where the denial has been appealed to a State Appeals Board.

That makes the search naturally incomplete for two reasons: namely; not all denied claims are appealed, and; public records dissemination is governed by local politics and so not all jurisdictions make all of their records available in the same manner.

Because of this, in the opinion of our counsel, it is illegal to report these incomplete records under the Fair Credit Reporting Act (FCRA) Section 613(a) (2) because there is no way to assure that the reported record is “complete and up to date.”

Additionally, all states vary in their approach to what is contained and what is reportable in their Workers’ Compensation Board appeals reports.

In California for example, the WCAB may not reveal medical information and the employer may not rescind an offer due to a workers’ compensation claim history (CA Labor Code §132a).

Employers sometimes discover that applicants have not revealed previous employment where they had filed claims that were denied. In such situations, employers often terminate the new hire because it appears they falsified the application and that is the only legitimate use of the appeals information.

However, since the public record dissemination policies differ so dramatically from one jurisdiction to another, we believe that such inconsistencies provide ample opportunity for discrimination lawsuits and claims for violation of FCRA 613(a)(2).

In essence, since there is no public record repository that provides a candidate’s history of workers compensation claims, (only those that have been appealed) and because what is available is at best in our opinion, inconsistent and incomplete, any reporting of incomplete or inaccurate information by your background screening provider for employment purposes is statutorily forbidden under the Fair Credit Reporting Act.

So if you use what is easily classified as fruit from a forbidden tree, you could be the proud recipient of legal papers served upon you by an aggressive Plaintiff’s attorney’s process server, at home during your second bite of that beautiful Filet Mignon you just barbequed up on Sunday afternoon.

Feel free to call me directly with your employment screening policy questions … 800 277-2733 and ask for Tom!