 |
|
This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR's statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove" feature at the end of the newsletter and you will not receive any future newsletters. (Reading time: Less than 5 minutes) ESR Newsletter and Legal Update
1. EEOC Warns Employers of Increase in Discrimination Lawsuits Based on Background Checks As a recently filed lawsuit alleging one of the largest management consulting firms in the world conducted discriminatory background checks against African-Americans and Latinos shows, employers need to fully understand the U.S. Equal Employment Opportunity Commission (EEOC) policies regarding the use of background checks during the pre-employment screening process - or face the consequences in court. Due to an increase in discrimination lawsuits such as this, the EEOC has decided to warn employers about background check practices that could get them in trouble. The agency designed a program to combat discriminatory practices tied to background checks called E-RACE (Eradicating Racism And Colorism from Employment) after recently noticing a steep climb in complaints from job applicants who claimed they were unfairly excluded from employment because of information - such as criminal records and poor credit ratings - that appeared on background checks. African-American and Hispanic males in particular, who according to statistics usually have higher arrest rates and lower credit scores than white males, were able to show the EEOC that the criteria used during background checks had a negative impact on their hiring opportunities. The EEOC has defined two background check practices in particular that have caused - and will continue to cause - the largest legal risk for employers.
According to the EEOC, even if the agency takes a discrimination charge that does not necessarily mean that the government is accusing an employer of discrimination. It is simply the EEOC's job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred if applicants or workers charge that an employer has allegedly discriminated against them. In addition, according to the "Employers" section of the EEOC website, the agency enforces Federal laws prohibiting employment discrimination that protect employees and job applicants against employment discrimination when it involves:
The EEOC and the courts do recognize that some information uncovered in background checks does provide insight on an applicant's suitability in certain fields of employment. These instances could include jobs in which applicants would have close contact with customers, handle cash, drive vehicles, and deal with minors. Employers need to show these correlations between background checks and the suitability for the given job, and also ensure that their background check process does not routinely, even if unknowingly, give preference to white applicants while excluding African-Americans and Hispanics. For more information about EEOC policies regarding discrimination during background checks for employment, visit Employment Screening Resources (ESR), a national pre-employment screening firm providing background checks, at http://www.esrcheck.com. 2. Arizona Senate Passes Tough Immigration Bill That Includes Stricter Rules on E-Verify Usage The Arizona senate has passed a controversial bill that - along with requiring law enforcement officers to question anyone that they have reason to believe might be in the country illegally - would direct employers to keep verification records of employee work eligibility through the government's E-Verify electronic eligibility verification system and make it a felony crime for failing to verify employment eligibility with E-Verify. According to a report on ABC15.com from Phoenix, AZ, Senate Bill 1070 now goes to Governor Jan Brewer, who can sign the bill into law or veto it and send it back to the legislature. Brewer has not yet taken a position on the measure championed by fellow Republicans. While the bill addresses a range of issues relating to illegal aliens and illegal immigration, Senate Bill 1070 also calls for "Investigations of Employers" that, among other things:
Besides the strict new laws on E-Verify usage, Senate Bill 1070 also "stipulates that an employer is not entrapped in an investigation if the employer was predisposed to knowingly or intentionally employ an unauthorized alien and law enforcement officers or their agents merely provided the employer with an opportunity to do so" and "states that it is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identities." The U.S. Immigration and Customs Enforcement (ICE) - an investigative branch of the Department of Homeland Security (DHS) and the primary authority for enforcing immigration laws - has recently focused more on worksite audits of employee records, including the Employment Eligibility Verification form ("I-9 Form"), as a way to curb illegal immigration. Employers can risk possible fines, penalties, and jail time if they do not comply with certain I-9/E-Verify regulations. Since the I-9 form is an important part of a comprehensive safe hiring strategy, employers using the E-Verify system maychoose a third-party provider to help maintain compliance. Employment Screening Resources (ESR), an authorized E-Verify Designated Agent, can assist employers in virtually eliminating SSA mismatch letters, improving the accuracy of wage and tax reporting, protecting jobs for authorized workers, and in maintaining a legal workforce. For more information about E-Verify, please visit http://www.esrcheck.com/formi9.php. 3. Jury Finds Housing Authority Negligent in Elderly Woman's Murder after Tenant Background Check Misses Neighbor's Criminal Past In a story that shows the importance of using overlapping tools to do criminal background checks, a jury recently ruled that negligence by the Housing Authority in a North Carolina city led to an elderly woman's death at the hands of her crack cocaine addicted neighbor in 2007. A story on CharlotteObserver.com revealed that attorneys sued the agency on behalf of the 63-year-old woman's estate after she was strangled in her apartment at a public housing complex for the elderly and disabled. Her 46-year-old neighbor - who reportedly had a history of violence, drugs, and mental illness - was later convicted of her killing. Jurors awarded victim's sons $132,000 over their claim of inadequate tenant screening after a background on the convicted killer missed several convictions for violent behavior in the man's past. Jurors said they could not agree on a monetary amount, and the final figure was a compromise that was far less than the $10.4 million in damages the sons were asking for. At issue in the trial was whether the Housing Authority properly screened the woman's killer with a background check before it let him live in the apartment complex. The CharlotteObserver.com reported that the attorney for the woman's estate argued that the Housing Authority violated its own procedures by doing only a North Carolina background check - not nationwide background check - on the woman's eventual killer. The N.C. check missed violent crime and drug convictions in Maryland that would have prevented the man from living at the apartment complex. The jury agreed, and CharlotteObserver.com quoted the foreman as saying that the just felt like the elderly woman's murder could have been prevented with better background checks. The attorney also said he hoped the judgment would make the Housing Authority do more comprehensive background checks on tenants. A tragic story such as this reminds employers - and landlords - of the importance of national multi-jurisdictional searches that can uncover criminal records that job applicants - or tenants - have in states other than the one in which they currently live and work. Employment Screening Resources (ESR), a national pre-employment screening provider, offers a National Multi-Jurisdictional Criminal Database Search, which are comprehensive multi-jurisdictional and statewide searches that cover a much larger geographical area than traditional county-level searches. Such a search can provide potential leads as to other places to search.
More information on the pros and cons of multi-jurisdictional and statewide databases - including what information this search is based on, how criminal record "hits" should be reconfirmed to ensure accuracy, and how Sex Offender databases are derived from the state-maintained registry, is available on ESRCheck.com at: ESR Articles (click for more info) The FCRA in 4 Easy Steps Criminal Records and Employment Applications 10 Safe Hiring Tools Negligent Hiring Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR's statements about any legal matters are not given or intended as legal advice. Employment Screening Resources (ESR) |
Safe Hiring Resources
Video clips used by permission of Kantola Productions The ESR Advantage
 The advantages of having ESR as your Safe Hiring Partner » The ESR Joint Commission Hospital Compliance Database » ESR Global Service — International background checks » Testimonials »» ESR Resources
|
|
|
