Congressman Steve Cohen (D-Tennessee-09) has introduced legislation in the U.S. House of Representatives – H.R. 645, to amend the Fair Credit Reporting Act to prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.
Written by John Connelly
On March 8, 2013, the United States Citizenship and Immigration Services released a new version of Form I-9, Employment Eligibility Verification (identified as Rev. 03/08/13). The new form is available for immediate use, and employers must begin using the updated Form for all new hires starting May 7, 2013.
Notable changes to the Form I-9 include:
Updated Instructions: The instructions are now six pages in length and provide better guidance about the obligations for both employees and employers. The revisions include a clearer explanation about when Form I-9 must be completed and when it must be updated.
Updated Layout: Form I-9 has been expanded from one to two pages, excluding the instructions and the list of acceptable documents. Formatting and layout changes were intended to make completing the form easier for both employees and employers. Employers should be sure to include the employee’s name in the first field on page two.
Changes to Section One – Employee Information and Attestation: New data fields were added to Section One. The new data fields request the employee’s foreign passport information, telephone number, and e-mail address. These new fields were added in an effort to facilitate employment verification matching with the E-Verify system.
Changes to Section Two – Employer or Authorized Representative Review and Verification: Section Two now includes an expanded document entry field. The new response fields were included to accommodate scenarios where an employee provides a combination of List A documents. Additionally, there is now additional space for information regarding SEVIS registration and Employment Authorization Documents (EAD). The Certification area also has been redesigned to clarify the three attestations an employer makes when certifying the Form.
As a reminder, new hires must complete Section One (now page one of the revised form) no later than the first day of employment. The employer must review the employee’s original documents verifying identity and employment authorization and complete Section Two (now on page two of the revised form) within three business days of the employee’s first day of employment.
Completing a new, revised Form I-9 for existing employees is required only if employment eligibility must be re-verified on or after May 7, 2013. Employers should use caution when identifying those employees requiring reverification. Unnecessary reverification may have the unintended effect of violating the Immigration and Nationality Act’s anti-discrimination provision.
Story reported by:
By James E. Hall, Mark T. Kobata and Marty Denis, workforce.com
Wynona Harris, a bus driver employed by the city of Santa Monica, California, was fired on the same day she submitted a doctor’s note to her supervisor stating that she could continue working through her pregnancy with limited restrictions. Harris sued, alleging pregnancy discrimination in violation of California’s Fair Employment and Housing Act, or FEHA.
At trial, the city asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives. The city could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The appeals court reversed the decision. It held that the requested instruction was legally correct and that refusal to give it was prejudicial error.
The California Supreme Court affirmed the appeals court’s decision. The state Supreme Court held that when a jury finds that unlawful discrimination was a “substantial factor” motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay or an order of reinstatement.
Read this news coverage here workforce.com
What this bill means to Landlords:
SB 5568 – DIGEST
Prohibits a tenant screening service provider from disclosing: (1) A tenant’s, applicant’s, or household member’sstatus as a victim of domestic violence, sexual assault, orstalking; or
(2) That a tenant, applicant, or household member haspreviously terminated a rental agreement.
Here is a news report from The Seattle Times
Bill To Remove Unfair Housing Practices Clears Senate Originally posted 3/12/2013
OLYMPIA – A bill to ensure victims of domestic violence have fair and equal access to housing passed the Senate on Monday night.
Senate Bill 5568, sponsored by Sen. Steve Hobbs, D-Lake Stevens, received a 46-3 vote and will now move to the House for further consideration.
This bill, the Fair Tenant Screening Act Part 2, expands the original act to include protections for victims of domestic violence.
“We made great progress on the Fair Tenant Screening Act a few years ago and this bill helps finish the work we started on it,” Hobbs said. “Being a victim of domestic violence is a trauma I couldn’t imagine. There’s no reason why someone should have to have that horrible incident brought up again while looking for a home. This bill prevents that from happening.”
Currently, tenant screening reports are allowed to contain information about domestic violence protection orders and eviction lawsuits. This bill will remove that information from those reports.
Read original post here
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Employers who conduct background or credit checks on job applicants or current employees, take note: The Consumer Financial Protection Bureau (CFPB), the primary enforcer of the Fair Credit Reporting Act (FCRA), recently issued new forms that employers must begin using effective January 1, 2013.
What is the FCRA, and what does it require?
The FCRA regulates the collection and use of “consumer reports,” which are broadly defined to include “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for,” among other things, employment purposes. 15 U.S.C. § 1681a(d)(1). This can include everything from credit and criminal background checks to motor vehicle records.
Under the FCRA, before an employer requests a consumer report, it must:
Notify the applicant or employee that it may use the information in his/her consumer report for decisions related to employment. This notice must be in a stand-alone written document, and may not be included in an employment application.
Obtain written permission from the applicant or employee to pull the consumer report. This permission may be contained in the same document that is used to notify the applicant or employee that the employer will be pulling a consumer report. If an employer wishes to have the option of receiving consumer reports throughout an employee’s employment, the written authorization must state this clearly and conspicuously.
Provide written certification to the company that will provide the consumer report. The certification must state that the employer: (1) notified the applicant or employee and obtained their permission to get a consumer report; (2) will give the applicant or employee a copy of the consumer report and a summary of his/her rights under the FCRA before taking adverse action based on the contents of the consumer report; and (3) will not discriminate against the applicant or employee, or otherwise misuse the information in the consumer report, in violation of applicable state and federal law.
The aftermath of a fatal truck-train collision a year-and-half ago could soon greatly impact the employment-screening process for truck drivers.
That crash occurred at a Miriam, NV, railroad-grade crossing on June 24, 2011, when a tractor pulling two empty side-dump trailers on US Highway 95 struck an Amtrak passenger train. The collision destroyed the tractor and two passenger railcars and killed four train passengers, the train conductor and the truck driver. The investigation report of the accident can be accessed at the National Transportation Safety Board (NTSB) website under Report No. NTSB/HAR-12/03.
NTSB, as a result of that investigation, has issued 19 new recommendations to various federal regulatory agencies, several industry associations, including the American Trucking Assns. (ATA), as well as the Nevada Highway Patrol and John Davis Trucking Inc.
Most significant industry-wide are the four recommendations NTSB has made to the Federal Motor Carrier Safety Admin. (FMCSA), which– if adopted by the agency– would alter how truck drivers are screened before employment.
In her letter to FMCSA Administrator Anne S. Ferro, NTSB Chair Deborah A.P. Hersman details three points relate driver screening and one regarding brake-monitoring.
If put into action by FMCSA, the screening recommendations would result in establishment of a national database for CDL holders and require motor carriers to screen 10 years’ worth of employment history prior to hiring a driver.
Here are the four NTSB Safety Recommendations made to FMCSA:
• H-12-54: Create a mechanism to gather and record commercial driving-related employment history information about all drivers who have a commercial driver’s license, and make this information available to all prospective motor carrier employers.
• H-12-55: Using the mechanism developed in Safety Recommendation H-12-54, require motor carriers to conduct and document investigations into the employment records of prospective drivers for the 10 years that precede the application date.
• H-12-55: Require motor carriers to retrieve records from the Commercial Driver’s License Information System (CDLIS) and the National Driver Register (NDR) for all driver applicants so that they can obtain a complete driving and license history of prospective drivers.
• H-12-56: Inform commercial vehicle inspectors of (1) the importance of taking pushrod stroke measurements within the specified pressure range, (2) the relationship between pushrod stroke and specific air pressure, and (3) the consequence of taking measurements outside of this range.
Background checks have been much discussed in the last few weeks, primarily in the context of gun-control proposals. But it appears some background checks are favored by bien pensants whereas others are not — the latter being those conducted by employers on applicants for employment.
Last April, the EEOC issued a new policy guidance regarding businesses’ use of criminal background checks in hiring. The EEOC doesn’t have statutory authority to issue binding rules, but their policy guidances perform a similar function. Policy guidances tell businesses what practices the EEOC considers suspect under Title VII and, therefore, what practices will trigger a costly EEOC investigation. Thus, businesses are well advised to adhere to the guidances.
The purpose of the EEOC’s criminal-background-check guidance is to discourage businesses from refusing to hire ex-offenders. However laudable and necessary it may be to reduce unemployment among this cohort, ex-offenders are not a protected class under Title VII, so the EEOC doesn’t have express statutory authority to investigate and charge businesses for discriminating against ex-offenders. The EEOC gets around this impediment by invoking disparate-impact theory. The reasoning is as follows: Blacks and Hispanics are more likely to be incarcerated than whites. Therefore, even a facially neutral policy against hiring ex-offenders will screen out more blacks and Hispanics than whites. Consequently, the agency argues, this may constitute evidence of unlawful racial discrimination in violation of Title VII, giving the EEOC the authority to investigate and sue offending employers.
An environmental response company and its staffing agency were sued for negligent hiring after a temporary worker was allegedly raped by a coworker while on assignment in the wake of the Deepwater Horizon (Deepwater) oil rig explosion.
What happened. Miller Environmental Group, Inc. (MEG), a New Jersey firm, was contracted to provide emergency cleanup services along the Gulf Coast following the 2010 Deepwater disaster. MEG subcontracted hiring for the contract to Aerotek, Inc., a Virginia staffing agency. Aerotek hired “Kayla” to clean beaches for MEG at a Pascagoula site. Aerotek also hired “Wayne” for the same assignment.
One afternoon, Kayla fell ill at work. Wayne offered her a ride home, and she accepted. Upon arriving at her home, Wayne allegedly raped her. Kayla later discovered that Wayne had a lengthy, violent criminal record, including robbery, rape, and attempted murder.
Marketers of Criminal Background Screening Reports To Settle FTC Charges They Violated Fair Credit Reporting Act Pitched Mobile Apps Offering Job Applicant Screening Tools
An enterprise that compiled and sold criminal record reports has agreed to settle Federal Trade Commission charges that it operated as a consumer reporting agency without taking consumer protection measures required by the Fair Credit Reporting Act (FCRA). The FTC’s settlement order, which prohibits the respondents from future FCRA violations, resolves the agency’s first FCRA case involving mobile apps.
According to an administrative complaint filed by the FTC, Filiquarian Publishing LLC, Choice Level LLC, and their CEO, Joshua Linsk, failed to ensure that the information they sold was accurate and would be used only for legally permissible purposes. The FTC also alleged that they failed to tell users of their criminal record reports about their obligations under the FCRA, including the requirement to notify consumers if an adverse action was taken against them based on a report.
According to the FTC, Filiquarian claimed consumers could use its mobile apps to access hundreds of thousands of criminal records and conduct searches on potential employees. One app stated, “Are you hiring somebody and wanting to quickly find out if they have a record? Then Texas Criminal Record Search is the perfect application for you.” Consumers who paid 99 cents to download one of its apps from iTunes or the Google Android store (now GooglePlay) could conduct an unlimited number of searches for criminal records within a particular state or county. Choice Level provided the criminal records to Filiquarian that were accessed via Filiquarian’s mobile apps.