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Here are the latest news briefs. To view a section of text, please click on one of the following:

Cisive Joins the City Of Los Angeles' Blue Ribbon Commission on Employment Equity

Cisive is proud to announce that Fred Giles, Senior Vice President of Strategic Initiatives, has been invited by Los Angeles' Mayor Garcetti to join his Blue Ribbon Commission on Employment Equity to help "ensure that all Angelenos have a fair chance to secure sustainable, living wage jobs that put them on the path to upward mobility."

Mr. Giles' role on the Committee will include working to support and amplify fair hiring practices throughout the City of Los Angeles, the state of California, and beyond.

According to Mayor Garcetti's invitation, Mr. Giles has been invited to join this prestigious committee as Cisive has been "a leader in the field of employment equity."

Per Mr. Giles, "Cisive is honored to take part in this initiative. We all have a role to play in reintegrating individuals as productive members of society after they have paid their debt for past mistakes."

EEOC/FTC Joint Publication- Background Checks: What Employers Need to Know

EEOC/FTC Joint Publication- Background Checks: What Employers Need to Know. Click here to view the report.

Update on New Jersey Background Screening Law and Social Networking

On May 20th, the New Jersey Assembly passed A.2878 in concurrence with the recommended changes contained in Governor Chris Christie's (R) conditional veto (previously reported). The bill would have prohibited employers from asking current and prospective employees to provide usernames and passwords for social networking sites in order to secure or maintain employment. The bill would also have prohibited employers from asking current and prospective employees if the employees have social networking accounts. Christie provided recommended changes to the bill, including:

 

(http://www.njleg.state.nj.us/2012/Bills/A3000/2878_R4.PDF)

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Best Practice Standards. The Proper Use of Criminal Records in Hiring

Best Practice Standards. The Proper Use of Criminal Records in Hiring.

Click here to view the report.


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Rossen Report on Poor Background Checks - Is Your Company at Risk?

Rossen Report on Poor Background Checks - Is Your Company at Risk?

Click here to view the report.

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Major Background Screening Company Forced to Pay $2.6 million for Fair Credit Reporting Act Violations.

Major Background Screening Company Forced to Pay $2.6 million for Fair Credit Reporting Act Violations.

The Federal Trade Commission (FTC) has leveled its first fine ever at an employment screening company for violating the FCRA. The $2.6 million fine is to settle charges, including that the consumer reporting agency violated the Fair Credit Reporting Act (FCRA) by failing to use reasonable procedures to assure the maximum possible accuracy of the information it provided.

To view the complaint, stipulated final judgment and order as well as the news release, click here.

To view the New York Times editorial, click here.

There is a clear right way and a wrong way to conduct background screening. For more than 35 years, Cisive's background screening service has focused on a single mantra – "keep our clients out of harm's way". We have and will continue to be unwavering in this commitment in order to protect our clients from potentially debilitating liability.

The highest quality background reports are comprised of the "critical triad":

ACCURACY – COMPLIANCE – TIME SERVICE

Accuracy – Cisive's background screening reports have always included a re-verification process. When we discover adverse findings in our investigations, we automatically re-investigate our original findings. In the unlikely event that information varies from originally reported, we communicate those changes to you as well as the subject of the investigation. Cisive will never report potentially stale database information; such information is used only as a valuable pointer to verify and perfect that information with the source to ensure accuracy. Reporting inaccurate information is a recipe for disaster as the background screening company noted above, unfortunately, learned the hard way!

Compliance - We report back to you only that information which you are legally entitled to see, based on myriad federal (FCRA, EEOC Guidelines, et al), state, international and other laws and statutes. Additionally, Cisive ensures that the information we do report, is accurate and up to date at the time of dissemination to you, as required by law. We protect you and the applicant having built and implemented strict, technology-centric pro-active disclosure and notification processes and procedures that allow applicants to view, contest and correct inaccurate information quickly and efficiently. Manual processes and systematic solutions that are not carefully built and pro-actively managed are doomed to fail and create tremendous liability exposure.

Time Service - We clearly understand the need to on board the best applicant efficiently. We effectively manage this process through our systems and procedures which are fine-tuned continuously as situations change. As such, our time service metrics meet and exceed our clients' expectations without compromising quality and accuracy.

Cisive is NAPBS Accredited.

We invite you to learn more about Cisive's services, expertise, knowledge of the law, technology, and commitment. Contact us at 866-557-5984

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Massachusetts CORI Reform Act - Interim Review

MEMORANDUM

DATE:

April 27, 2012

SUBJECT:

Massachusetts G.L. c 30 A – CORI Reform

"Massachusetts Criminal Offender Record Information Reform Act" April/May 2012 – Interim Review

[NOTE: The information provided below is based upon the legislation/law and regulations as promulgated on or before April 9, 2012. A public hearing was held on March 30th and written comments were due on April 19th. As a result of the comments submitted, there may be alterations which have impact upon those topics discussed below. Furthermore, Cisive is not a law firm nor is it offering legal advice as it relates to this or any other matter involving the manner in which the employer complies with the law and/or regulations. It is strongly advised that Labor Counsel be consulted and each employer interprets and complies with the requirements of the laws and regulations as it deems necessary.]

On August 6, 2010 Massachusetts Governor Deval Patrick signed legislation which has resulted in dramatic changes to the Massachusetts Criminal Offender Record Information ("CORI") system. The intended purpose behind this legislation is to increase employment opportunities for individuals having criminal records and to increase opportunity for reformed individuals in the workforce. The initial sections of the law commonly referred to as "Ban the Box" were effective on November 4, 2010. The remaining sections which involve accessing and use of the record information maintained by the Department of Criminal Justice Information Systems ("DCJIS") becomes effective May 4, 2012. This legislation has broad implications with the consumer reporting industry, employers, employees, human resources professionals, and the judiciary.

The alteration to the Massachusetts law in no way absolves, replaces, or alters the requirements imposed upon the employer and the CRA by the federal Fair Credit Reporting Act ("FCRA"). This review is strictly limited to those parts of the law and regulations involving a Consumer Reporting Agency ("CRA").

Cisive has been closely monitoring this new law and the accompanying regulations and is altering its processes and procedures to conform to the requirements. However, it is Cisive's position that the information and process made available through the individual courts is the preferred method to conduct criminal history record checks in Massachusetts. Given the conflicts which exist because of an in-artfully drafted law and subsequent regulations, use of the iCORI process poses many challenges and requirements which could result in a greater risk to the employer.

Cisive has case processing and onboarding technology which can fulfill many of the required "paperwork" steps required. Cisive stands ready, should the iCORI process be the employer's preferred vetting mechanism to implement the forms to conform to the law and regulations.

"Ban the Box" – Eff. Nov. 4, 2010

Sections Effective May 4, 2012

Regardless of source of criminal record information, the following changes will be applied.

Consumer Reporting Limitations – Salary Threshold

Previously, a Consumer Reporting Agency ("CRA") had limitations imposed on what it could report in a consumer report. Before this enactment, a CRA could include "record of arrest, indictment, or conviction of a crime which, from date of disposition, release, or parole, antedate the report by more than seven years" EXCEPT if the individual was going to be employed at an annual salary of $20,000 or more. Effective May 4, 2012, the law will be removing the salary exception which will result in an absolute seven year limitation to all information being reported by a CRA in a consumer report.

Providing a copy of information prior to questioning

Employers must provide the applicant/candidate a copy of any criminal record information received, regardless of source, and in its possession prior to questioning the subject about his criminal history in connection with a decision regarding employment.

CORI Policy

Any person who conducts more than five (5) criminal background investigations, regardless of the source of the criminal history information, must maintain a written CORI Policy which in addition to other obligations provides the applicant/candidate with:

  1. Notify the applicant/candidate of the potential adverse decision based on the CORI information;
  2. Provide a copy of the criminal offender record information and the policy to the Applicant/Candidate; and
  3. Provide information concerning the process for correcting a criminal record.

Massachusetts Criminal History Systems Board (CHSB) provides a "Model CORI Policy" which can be located at http://www.mass.gov/eopss/docs/chsb/cori-model-policy.pdf.

Court Record Methods using CRA

  1. Court records searched and reported by a CRA will be limited to seven (7) years.
  2. "Ban the Box" is still in effect and asking an applicant/candidate on an initial written application is still prohibited.
  3. Questions regarding any criminal history known to the employer must first have had the presentation of the criminal history information to the applicant/candidate prior to the questioning.
  4. A copy of the criminal history information must be provided to the applicant/candidate when the employer makes an adverse decision based upon that information.
  5. The employer must have a "CORI Policy" and must be distributed to the Applicant/Candidate. Massachusetts Criminal History Systems Board (CHSB) provides a "Model CORI Policy" which can be located at http://www.mass.gov/eopss/docs/chsb/cori-model-policy.pdf.
  6. Dissemination log is not required.
  7. When presenting criminal information to the Applicant/Candidate, the employer must also provide a copy of the DCJIS information concerning the process for correcting a criminal record. DCJIS process for correcting the information is available at http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf

Accessing CHRI through DCJIS using a CRA

  1. Court records searched and reported by a CRA will be limited to seven (7) years. (It is recognized that there is a conflict which currently exists between the Regulations - 803 CMR 11.11 Dissemination of CORI by a CRA and the Massachusetts CRA law – MA. General Law Chapter 93 Section 52(b)(3) in which the salary exclusion has been removed. Particular attention will be made to the manner in which the Commonwealth addresses this in the final regulations.)
  2. "Ban the Box" is still in effect and asking an applicant/candidate on an initial written application is still prohibited.
  3. Questions regarding any criminal history known to the employer must first have had the presentation of the criminal history information to the applicant/candidate prior to the questioning.
  4. A copy of the criminal history information must be provided to the applicant/candidate when the employer makes an adverse decision based upon that information. This must be an EXACT copy of the information as provided directly by DCJIS and the iCORI system.
  5. CRA shall have the same level of iCORI (Internet access portal/system being implemented to allow access to Criminal history information reposed at the DCJIS; i.e. if the employer has been granted "standard access" so shall the CRA accessing the information on behalf of the employer).
  6. All employers accessing iCORI whether directly or through a CRA acting as their agent must be registered with DCJIS.
  7. The employer must have a "CORI Policy" and must be distributed to the Applicant/Candidate. Massachusetts Criminal History Systems Board (CHSB) provides a "Model CORI Policy" which can be located at http://www.mass.gov/eopss/docs/chsb/cori-model-policy.pdf.
  8. When presenting criminal information to the Applicant/Candidate, the employer must also provide a copy of the DCJIS information concerning the process for correcting a criminal record. DCJIS process for correcting the information is available at http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf.
  9. If, the employer's policy is limiting and only takes into account a portion of the applicant's criminal history (e.g. only utilizes last 5 years of felony history compared to the 7 yrs. from DCJIS), the full unedited history must still be presented to the candidate.
  10. As of this date, the "fee" which will be imposed by iCORI and then passed onto the employer to search the iCORI system has not been divulged by the Commonwealth.
  11. The employer must obtain a completed "CORI Acknowledgement" from the applicant/candidate in which:
    1. The identity of the applicant/candidate has been verified;
    2. The signature of the applicant/candidate has been obtained;
    3. AND the employer representative counter-signs the form indicating they have properly verified the identity of the subject through a government issued identification card.

      CORI Acknowledgement forms will be valid only for a period of one (1) year from the date of signature or the conclusion of the period of employment, whichever comes first. This would result in the need to refresh a new acknowledgement each year in those cases where employers have annual "re-checks" and thereby dissolves any "evergreen release" language in the employer's standard authorizations.

      NOTE: As of this date, this acknowledgment form has not been made available by Massachusetts and it is unknown at this time whether such form can be processed in an electronic process and will be accepted with an electronic signature.

  12. Adverse action would require…
    1. Compliance with the federal FCRA pre-adverse, adverse, process and the provisioning of Summary of Rights and Identity Theft materials
    2. Notification to the applicant/candidate of a potential adverse employment action
    3. Provide a copy of the CORI information (exact copy) as obtained from iCORI/DCJIS.
    4. Provide a copy of the CORI Policy
    5. Identify the information that was the basis for the adverse decision
    6. Provide the Applicant/Candidate with the opportunity to dispute the information
    7. Provide the Applicant/Candidate with a copy of the CDJIS information regarding the process to correct the information



DCJIS process for correcting the information is available at http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf.

The chart below identifies requirements of the 2010 CORI Reform Statute that are scheduled to take effect May 4, 2012 and the requirements of the Proposed DCJIS Regulations implementing the law. Requirements in the DCJIS final rule, when issued, may differ.

References to "FCRA" in the chart are used to indicate that the FCRA has similar, but not necessarily identical requirements that may apply in cases where the 2010 CORI Reform Law and Proposed Regulations do not impose a requirement.

Proposed Regulation Section

Requirement

Court Records & other non-DCJIS data

DCJIS CORI Data

Notes

Prior to requesting a report

§ 2.04(2), (4)

Register for iCORI account (optional)

x

§ 11.10

Authorize CRA to obtain iCORI reports for iCORI registered clients (if applicable)

x

§11.12

Designate the CRA as a "decision maker" of the iCORI registered client, if applicable

x

§ 2.08

Employer prohibited from requiring individual to provide their own CORI report

x

§ 2.09(3)-(5)

Take specific steps to verify the individual's identity

x

§ 2.21(1); 11:10(3)

Notify the applicant in writing that a consumer report may be used

FCRA

x

Obtain the applicant's separate written authorization before requesting the check

FCRA

x

Certify compliance with the FCRA and state consumer reporting statutes to the CRA

FCRA

x

Prohibition on misuse of information in violation of federal or state laws or regulations

x

Certify to the CRA that the iCORI registered client will not use any of the information in violation of federal or state EEO laws or regulations

FCRA

x

Provide accurate identifying information and the purpose for which the CORI is being requested

FCRA

x

Provide to the CRA a statement of the annual salary of the position for which the individual is being screened

x

Pre-Questioning/Pre-Adverse Action

§ 2.13

Provide copy of CORI before asking the individual questions regarding the individual's criminal history

x

x

Proposed Regulation does not reference non-DCJIS information, but § 19 of the 2010 CORI Reform Statute applies this requirement to data from DCJIS and other sources.

§ 2.21(2)-(3)

Pre-adverse action steps

x

x

Notify the applicant of the potential adverse action

x

x

Provide FCRA pre-adverse action disclosure of consumer report and FTC Summary of Rights

x

x

Provide a copy of the CORI from DCJIS

x

The regulation lists these as separate requirements in addition to the requirement to provide the individual a copy of the consumer report.

§ 21(c) of the 2010 CORI Reform Law provides this information does not have to be provided a second time if already provided prior to questioning.

Provide a copy of the criminal history information

x

Provide a copy of the employer's CORI policy, if applicable

x

x

Identify the CORI that is the basis for the potential adverse action

x

Provide an opportunity to dispute the accuracy of the CORI

x

x

Provide DCJIS information about how to correct CORI

x

The regulations use different phrasing, suggesting the possibility of two documents, although DCJIS may issue only one

Provide DCJIS information about how to correct criminal history records

x

Document all steps taken to comply with these requirements

x

x

Other Administrative Requirements

§ 2.22

Subject to DCJIS audits

x

§ 2.11

Comply with specified data security requirements and retention limitations for CORI

x

§ 2.12

CORI destruction requirements

FCRA

x

§ 2.15

Adopt a criminal offender record information policy if 5 or more background checks are conducted annually

x

x

Section 19 of the 2010 CORI Reform Law imposes this obligation in the case of information obtained from DCJIS or any other source

§ 2.16

Maintain a CORI Secondary Dissemination Log

x

[end of document]

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EEOC Guidance on Criminal History Record Checks

EEOC Guidance Released!

Yesterday, April 25, 2012, the EEOC released updated guidance regarding the use of criminal records in an employment setting, entitled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964". The full text of the guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. We recommend that our clients review this with legal counsel. We have provided a brief summary below which is not intended as legal advice.

The EEOC Enforcement Guidance expands on the guidance issued over twenty years ago regarding enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. This guidance once again notes that the use of criminal history records in employment decisions could potentially have adverse impact, and therefore recommends either the use of a validation study to support the consideration of specific offenses related to a specific position, or the application of the familiar factors to be considered from the Green v. Mo.Pac. R.R., 549 F2d 1158, 1160 (8th Cir. 1977), along with the opportunity for an individual assessment or review of the decision.

The factors from the Green case are already familiar to employers. They are:

 

Cisive recommends that the opportunity for individual assessment be included with the pre-adverse action letter. In the letter, the candidate would be provided both with instructions to make a factual dispute and with instructions regarding how they might provide mitigating information regarding a reported offense. Cisive would be responsible under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. to follow the appropriate re-investigation procedures, and the employer would designate an individual, position or committee to perform an individual assessment regarding the report and any candidate supplied information. The guidance in Section V.B.9 provides examples of relevant individual evidence that could be considered. The good news for employers is that the guidance seems to indicate that individual assessment is not required unless requested by the candidate.

The requirement for individual assessment means, however, that absent statutory requirements or clear job requirements, decision matrices with "knock out" language like "not eligible" or "disqualified" should be avoided. (It should be noted that the EEOC specifically expresses concern about state laws that are overly restrictive. The EEOC states in the guidance that complying with state law does not shield an employer from Title VII liability. It is unclear whether the EEOC intends to pursue legal action against employers and/or the state(s) emanating from alleged Title VII violations that result from conformance with state laws requiring specific types of criminal checks and specific "knock outs". This is one of the most disturbing aspects of this guidance, and Cisive will be working to obtain a clarification of the EEOC's position.)

Employers should be aware that the EEOC takes a page from the "ban-the-box" movement and recommends that employers not ask about criminal records on the application.

Throughout the guidance, examples are provided to help employers understand the concepts covered in each section.

Cisive recommends that employers pay special attention to section VIII of the guidance, "Employer Best Practices", which summarizes many of the recommendations contained in the guidance.

Cisive, along with other leading consumer reporting agencies, played a significant role with various associations and organizations working to ensure the final guidance issued by the EEOC struck the proper balance between negligent hiring concerns and the protection of job applicants/employees and protected classes. We believe the final guidance issued by the EEOC is far more balanced as a result of those efforts, and less onerous to employers than it otherwise would have been.

We look forward to working with our clients and their legal counsel to successfully apply this guidance.

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Cisive's letter to the EEOC regarding the Commission Meeting, July 26, 2011, on arrest and conviction records as a barrier to employment.

August 10, 2011

Chair Jacqueline A. Berrien

Commissioner Stuart J. Ishimaru

Commissioner Constance S. Barker

Commissioner Chai R. Feldblum

Commissioner Victoria A. Lipnic

131 M Street, NE

Washington, DC 20507

VIA Email To: commissionmeetingcomments@eeoc.gov

RE: Commission Meeting July 26, 2011, Arrest and Conviction Records as a Barrier to Employment

Cisive has been providing background screening services as a Consumer Reporting Agency (CRA) for over 33 years. Cisive appreciates the opportunity to comment on the use of criminal history record information (CHRI) in making employment decisions. Cisive provides background screening services, including CHRI information, to employers in compliance with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and the many consumer protections afforded to consumers by the FCRA. Cisive has been accredited by NAPBS as having demonstrated policies and procedures, and trained our staff in those policies and procedures, designed to protect all consumers and to ensure compliance with all applicable law, confirmed by an independent audit.

Cisive shares the concerns of the commissioners and panelists regarding the plight of ex-offenders re-entering the job market. We firmly agree that that there should be employment opportunities for ex-offenders, and we also agree with the panelists and commissioners who acknowledged that criminal history backgrounds, when properly researched and properly applied, serve a public good protecting assets, employees and the public.

EEOC Guidance.

As discussed below, Cisive believes that employers would benefit from additional guidance from the EEOC, developed with input from consumer reporting agencies and other stakeholders, with respect to how employers should consider CHRI for employment purposes.

We urge the Commission to work with CRAs, employers and other stakeholders to educate employers and to help them make position appropriate decisions. We want to work with the EEOC as allies in ensuring fair treatment of all job applicants.

There are two classes of employers using CHRI today: those employers using the services of a CRA regulated by the FCRA affording significant consumer protections enforced by the Federal Trade Commission, and those employers who do their own criminal checks, either by accessing the information at the source repository themselves, or more often, using incomplete "instant Internet checks" provided by companies who either do not know or do not believe they are regulated by the FCRA and are not required to afford the same consumer protections. Cisive deplores the damage done by online, "instant" criminal checks without the protections afforded by the FCRA or careful research of the type undertaken by CRAs such as Cisive in preparing consumer reports for its customers.

Several Commissioners and panelists correctly identified two practices that Cisive agrees should be eliminated: the use of arrest records that do not include current case status or disposition in the employment decision process and the use of information from CHRI databases without the CRA perfecting those records through a records search at the originating repository of record (such as the court where the matter was adjudicated) prior to dissemination. Although permissible under the FCRA (15 U.S.C. §1681k(a)(1)) Cisive does not practice the use of "contemporaneous notice" when utilizing databased CHRI. Cisive has long declined to report partial or incomplete records for which there is no disposition. Further, Cisive does not include records of dismissal or records with "not guilty" dispositions in the reports we provide to clients. These are reported as "clear" to our clients as if the court proceedings never happened. Simply stated, we do not report raw arrests or "rap sheets." Further, while we find commercial CHRI databases helpful when performing research, we only use those databases as pointers and will only report information after it is perfected by a records search at the originating repository of record. This research process ensures that expungments, incomplete, or out of date records are not reported to the end-user, i.e. employer.

During the testimony at the EEOC hearing on July 26th, mention was made of both commercial and FBI databases. Given the complexity of the issues, particular attention must be paid to the differences among the various CHRI databases sourced from a local, state, or government entity compared to those commercially available. Many county and state courts have implemented case management and record keeping systems (court administration systems) that are being used as official repositories of record for CHRI. Some of these are available for direct access by the public and CRAs. The information contained within these systems, when combined with manual court case files when necessary to complete coverage, are the gold standard for accuracy and completeness for CHRI. This information is often compiled into statewide databases by state offices of court administration, or the state police, or both. These statewide databases vary widely in their quality. The FBI's databases are no exception; the 2006 Attorney General's Report on Criminal Background Checks reported that only 50% of the arrest records in the Interstate Identification Index include dispositions.[1] Similarly, commercially available "compiled" databases of CHRI draw upon many different sources, including county and state level court records, incarceration records, sex offender registries, and are imperfect, as a standalone solution, because they may not yet reflect the most recent public record information, or otherwise lack up-to-date dispositions.

As noted above, Cisive may use information from these government and commercial databases in preparing a consumer report, but we do so by using these databases as pointers to identify courts of record where Cisive can further research the underlying matter and its disposition. Our approach is similar to that taken by the Office of Personnel Management, which uses FBI criminal history reports as a pointer to search originating courts. Cisive would support EEOC guidance that would prohibit end-users from making employment decisions on the basis of adverse CHRI unless the CHRI reflected the most complete and up to date records available from official sources, whether obtained by the employer directly or through a CRA.

The Role of Decision Matrices.

Cisive supports the use of position specific decision matrices or guides to help hiring managers assess CHRI and make the right decisions. A properly designed decision matrix is not a bright line disqualification matrix; Cisive believes these are inappropriate unless there is a legal prohibition against hiring an individual convicted of a certain offense from holding a particular position. A properly crafted decision matrix, however, helps the hiring manager make a fair decision by eliminating those offenses that should not be considered at all, by providing time based guidance, by considering the specific risks and requirements of the position to be filled, by recognizing evidence of rehabilitation, and by providing for both subject notification and the opportunity for appeal or dispute. In particular, properly structured decision guides using the factors above will address the problem of employing persons with a conviction record, and combat the major problem of recidivism, by ensuring that applicants with criminal records are not eliminated simply because they have a record, and ensuring that applicants with criminal records that are suitable for the intended position are hired.

Disparate Impact.

Cisive would like to point out that in addition to the public good provided by properly conducted and evaluated criminal histories, the very use of those criminal histories can mitigate "statistical discrimination" as highlighted by Holzer, Raphael and Stoll in their July 2002 study, "How Do Crime And Incarceration Affect The Employment Prospects Of Less-Educated Young Black Men?" They note:[2]

…the data suggest that employers who are unwilling to hire ex-offenders but who do not check for criminal backgrounds engage in a form of "statistical discrimination" against black men more broadly, based on their aversion to hiring offenders as well as their very limited information about exactly which individuals in their applicant pool have this characteristic. Such discrimination might contribute quite significantly to the observed employment gaps between young white and black men.

Any discussion regarding the use of criminal histories should consider that the potential for disparate impact in the hiring process may actually be reduced when employers consider accurate, complete, and relevant criminal history information properly in concert with a decision guide, as compared to the decisions that would be made by employers for individuals in protected classes absent that information and guide. Said another way, the disparate impact of the nominally "neutral" practice of utilizing CHRI should not be presumed simply based on the natural ratios inherent in the conviction rates in various protected classes. It is also misleading to analyze the disparate impact of using inaccurate CHRI in an uncontrolled manner and then extend those results to what would occur with using accurate, complete, and relevant criminal history information with a well-conceived decision guide.

The public interest is well-served by criminal background checks and in many cases, such checks are required by legislation. No one would suggest placing a recently convicted pedophile into an employment position as a school bus driver, or a recently convicted embezzler as a CFO, but how recent is too recent? When is a crime not relevant to a position? How does an employer recognize evidence of rehabilitation? Cisive recommends that the Commission consider setting up a task force with all stakeholders, including professional CRAs, to develop decision guides to assist employers in making fair employment decisions.

Finally, Cisive urges the Commission to publish disparate impact triggers and its methods of analysis because with this transparency, we can all work together in ensuring fair treatment of applicants.

Respectfully Submitted,

/s/ James C. Owens

President and CEO



[1] Department of Justice, Office of the Attorney General, "The Attorney General's Report on Criminal History Background Checks" (2006) at p. 17 (available online at: http://www.justice.gov/olp/ag_bgchecks_report.pdf) .

[2] Harry J. Holzer, Steven Raphael, and Michael A. Stoll, "Center for the Study of Urban Poverty University of California, Los Angeles Working Paper Series: HOW DO CRIME AND INCARCERATION AFFECT THE EMPLOYMENT PROSPECTS OF LESS-EDUCATED YOUNG BLACK MEN?" (July 2002) at p. 18

(available online at: http://www.sscnet.ucla.edu/issr/csup/uploaded_files/hrsmincy_july26-02.pdf).

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EEOC Hearing Scheduled on Use of Criminal Records

The Equal Employment Opportunity Commission (EEOC) will hold a meeting on the use of criminal
records for employment screening purposes on Tuesday, July 26, in Washington, D.C. The National
Association of Professional Background Screeners (NAPBS), which we are members of, is preparing
comments for submittal to the EEOC on the relevance and benefits of access to criminal history records
by employers. NAPBS is also partnering with other associations and coalitions as we move toward the
July meeting date. This will be a full Commission meeting, meaning all five Commissioners and EEOC's
General Counsels will attend. This includes Chairwoman Jacqueline Berrien, Commissioner Chai
Feldblum, Commissioner Stuart Ishimaru, Commissioner Vicky Lipnic and Commissioner Constance
Barker. A formal agenda has not yet been released but it is excepted there will be multiple panels
including academics, lawyers, victim's groups (i.e., those who have been denied employment due to
their criminal history), government officials, litigants from the El v. Septa case and others.

Given the importance of this meeting to our industry and you as our client, we want to ensure that you
are aware of this upcoming meeting and have the opportunity to join in our efforts to ensure that the
interests of the providers and users of criminal records are represented. The role of the use of criminal
records in employment screening will be the focus of this meeting and as employers have an important
stake in what is being considered during the meeting, we encourage you to add this date to your
calendar and make plans to attend the hearing on July 26 if possible. The meeting will be open to the
public and it will not be webcast or televised, although a transcript will be available after the meeting.

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Georgia Enacts E-Verify Law

On May 13th, Georgia enacted a bill (H.B. 87), which will require all private employers with eleven or more employees to use the federal government's E‐Verify system to check new employees' work authorization. Employers with over 500 employees must begin using E-Verify by January 1, 2012; employers with 100‐499 employees must begin using E‐Verify by July 1, 2012; and employers with 11‐99 employees must begin using E‐Verify by July 1, 2013.

http://www.legis.ga.gov/Legislation/20112012/116631.pdf

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Philadelphia Passes "Ban The Box" Criminal Background Law

The city of Philadelphia has joined a growing number of cities and states in imposing restrictions on employer inquiries into criminal history information. On April 13, 2011, City of Philadelphia Mayor Michael Nutter signed Bill No. 110111-A, which will become effective on July 12, 2011. Philadelphia's new Fair Criminal Record Screening Standards establishes provisions and requirements for the use of criminal history information by city agencies and private employers with 10 or more employees. The new "ban the box" ordinance complements Pennsylvania's Criminal History Records Information Act, which restricts employers from refusing to hire an applicant based on their criminal history, unless that history is directly related to suitability for the position in question.

The Philadelphia ordinance goes a step further and specifically prohibits both public and private employers with 10 or more employees within the City of Philadelphia from even asking about an applicant's criminal history record until after the employer's first direct contact with the applicant.

According to the Society of Human Resource Management (SHRM), the new ordinance creates three basic restrictions on the use of criminal record histories by employers subject to the act:

1. Employers may not inquire of applicants or employees about any arrest or criminal accusation that is not still pending and did not result in a conviction.

2. Employers may not require job applicants to disclose any criminal convictions during the application process through the first "interview," and if employers do not conduct "interviews," they are prohibited from gathering any information regarding the applicant's criminal convictions during the hiring process. (The term "interview" is broadly defined to include "any direct contact by the employer with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant's qualifications.")

3. Employers may not take any adverse action against an applicant or incumbent employee (e.g., refuse to hire, transfer or promote, or choose to terminate) because of past arrests or criminal accusations that did not result in convictions.

The new ordinance does not entirely prohibit Philadelphia employers from using any criminal record history information, but rather postpones the time frame where such inquiries are appropriate. Employers may continue to conduct background check screening that includes a criminal record history component or inquire about an applicant's criminal record history, provided that the screening or inquiry takes place after the initial "interview" and does not include information on past arrests or criminal accusations that did not lead to conviction.

In view of the Philadelphia ordinance, employers are encouraged to review their hiring procedures with legal counsel and take steps to modify job applications requiring applicants to disclose their criminal history.

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Maryland Enacts Legislation to Limit Use of Credit Reports for Employment Purposes

On April 12, 2011, Governor O'Malley signed into legislation the Job Applicant Fairness Act which prohibits most employers from using credit history in determining whether to deny employment to a job applicant, discharge an employee, decide compensation, or evaluate other terms and conditions of employment unless it meets specific timing and job-related requirements. This law goes into effect on October 1, 2011.

The Act applies to employers of any size, but excludes various financial institutions, as well as employers who are required to inquire into an applicant's or employee's credit history under federal or state law.

Limited exceptions to the Act allow employers to request or use credit information where such information is substantially job related. This includes positions involving money handling or other confidential job duties. An employer must disclose its intent to request a credit history check in writing to the applicant or employee.

In a growing trend, Maryland joins Illinois, Washington, Oregon, and Hawaii as states that prohibit the use of credit information for employment purposes. Fifteen other states currently have legislation pending along with the federal H.R. 321: Equal Employment for All Act, which will restrict employers' use of credit reports for employment purposes.

Unlike other states, Maryland's law will not provide a private right of action. Instead, applicants and employees who feel that an employer has violated the Act must file a complaint with the Commissioner of Labor and Industry who will investigate the matter. Penalties may include a civil penalty of $500 for an initial violation of the Act and up to $2,500 for repeat violations.

For more information on Maryland's Job Applicant Fairness Act and how it affects your business, visit http://mlis.state.md.us/2011rs/billfile/hb0087.htm#Synopsis

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Illinois Passes H.B. 4658 Employee Credit Privacy Act

Employee Credit Privacy Act (H.B. 4658)
Signed into Law on: August 10, 2010
Effective Date: January 1, 2011

Illinois has become the most recent state to react to the effect of the impact on the economic downturn on employees' credit histories by restricting employers from using credit information in employment decisions.

Details of the Act:

  • Prohibits most employers from using an applicant's or employee's credit history as a factor in any employment decision, including hiring, discharging and terms of employment.
  • Prohibits employers from inquiring into an applicant's or employee's credit history or obtaining a credit history report from a consumer reporting agency.
  • Restricts use of a broad range of credit information regardless of the source of such information; it is NOT limited solely to information obtained from a consumer reporting agency.
  • Applies to employers of any size.
  • Employers may not retaliate or discriminate against a person for exercising rights under the Employee Credit Privacy Act.
  • Employers who violate the Act may be sued and ordered to pay damages including attorneys' fees.
  • Does not allow waivers of the Act's rights and invalidates any such waivers that exist.


Specific Exclusions:

  • Many government employers
  • Banks
  • Savings and loan associations
  • Other financial institutions
  • Debt collectors
  • Insurance companies
  • Surety businesses


Limited Exceptions:
Bona fide occupational qualification (BFOQ): The Act provides limited exceptions that allow employers to use credit information where such information is related to a bona fide occupation qualification for a particular position or group of employees. This exception applies generally to those positions involving money-handling or other confidential job duties, such as:

  • those that require bonding by state or federal law;
  • employees who have unsupervised access to cash or certain assets valued at $2500;
  • employees who have signatory power of $100;
  • employees who are in a managerial position which involves setting direction or control of the business; and
  • employees who have access to confidential information, financial information or trade secrets.


Note: The Act includes other limited exceptions and contemplates that future administrative regulations may define additional categories of bona fide occupational requirements permitting exceptions of this Act. Notably, the Act specifically incorporates BFOQ definitions from either the state or federal Departments of Labor.
To review the entire Bill visit: http://www.ilga.gov/legislation/fulltext.asp?DocName=09600HB4658sam001&GA=96&SessionId=76&DocTypeId=HB&LegID=48740&DocNum=4658&GAID=10&Session=

This is for informational purposes only. It should not in any way be considered legal advice. Please consult with your legal department for all matters concerning employment and labor decisions.

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Oregon Legislature Enacts Workplace Credit Check Ban

With limited exceptions, employers may not use credit histories for employment-related decisions.

During its February 2010 special session, the Oregon Legislature adopted
Senate Bill 1045, prohibiting employers from using credit histories in making employment-related decisions. When the governor signs the bill into law, which he is expected to do, Oregon will join Washington and Hawaii as one of three states that have effectively banned workplace credit checks. This trend underscores the importance of employers and in-house counsel being aware of state law restrictions pertaining to credit and background checks, particularly in
multistate businesses.

The law goes into effect on July 1, 2010, and makes it "an unlawful employment practice for an employer to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation or the terms, conditions or privileges of employment based on information in the credit history."

The new law does not affect an employer's ability to conduct criminal background checks or investigate a prospective employee's employment history."

Notably, the Oregon law differs from the federal Fair Credit Reporting Act. Under the federal act, an employer can make employment-related decisions based on credit history but, prior to running a credit check, must notify prospective employees in writing and receive their consent. Additionally, if the employer decides not to hire because of the credit report, the employer has disclosure, notice and other obligations. In contrast, the Oregon law creates an outright ban on the use of credit history in employment-related decisions.

There are four exceptions to the prohibition:

  1. Bank and credit union employers
  2. Employers that are required by state and federal law to use credit histories for employment purposes
  3. Public safety officer employers
  4. Employers that can demonstrate that credit information is "substantially job-related" and that provide written disclosure of the reasons for the use of the credit check


The statute does not further define what "substantially job-related" means, nor has the Oregon Bureau of Labor and Industries (BOLI) adopted rules to inform employers on how it will be applied.

In the absence of clear rules or guidance from BOLI, employers that intend to continue utilizing credit histories after July 1, 2010, should proceed with caution and consult legal counsel to determine whether they fit into one of the statute's exceptions. If they do not fit within an exception, employers should develop alternatives to current practices by July 1, 2010, to avoid penalties and civil liability. A violation of the new law is an unlawful employment practice, and an aggrieved individual can file a complaint with BOLI and a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney's fees.

Compliance steps:

  • Do not obtain credit histories for employees or applicants on or after July 1, 2010, unless your company fits squarely into an enumerated exception.
  • Seek counsel before concluding that credit information is "substantially job-related."
  • You may obtain criminal background checks as before.


Disclaimer: This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

(Source: Corporate Finance Law Blog of Davis Wright Tremaine LLP, March 30, 2010)

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Illinois Passes H.B. 5411 Regarding Medical Student Background Checks

Passed on March 12, 2010, House Bill 5411 (Rep. William Burns, D-Chicago) amends the Medical School Matriculant Criminal History Records Check Act. Criminal history record checks are required by law for students applying to medical school and were previously conducted by the Illinois State Police. This bill allows medical schools to use a criminal history record check entity approved by the State, as an option. There are concerns there may be out-of-state incidents in an applicant's history not easily identifiable by the state police. Each requesting medical school is solely responsible for any fees associated with using the entity.

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E-Verify Update 3/17/10

E-Verify Update - DHS Unveils Initiatives to Enhance E-Verify
Agreement with Department of Justice and Outreach Initiatives Will Strengthen E-Verify for Employers and Employees

Department of Homeland Security (DHS) Secretary Janet Napolitano today joined U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to announce a trio of initiatives to strengthen the efficiency and accuracy of the E-Verify system.

These initiatives include a new agreement with the Department of Justice that will streamline the adjudication process in cases of E-Verify misuse and discrimination; an informational telephone hotline for employees to provide a more timely, effective and seamless customer experience for workers seeking E-Verify information; and new training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish.

"E-Verify is a smart, simple and effective tool that helps employers across the country maintain a legal workforce," said Secretary Napolitano. "The initiatives announced today will provide essential information to workers about their rights and ensure that E-Verify is used fairly while bolstering the Department's efforts to protect critical employment opportunities."

"USCIS continues to partner with our federal colleagues, as well as industry and employee representatives, to build a verification program that is accurate, efficient and fair for employers and workers alike," said Director Mayorkas. "We look forward to working with our colleagues in the Department of Justice to ensure the continued integrity and improvement of E-Verify."

"This agreement will better enable us to protect individuals who are authorized to work in this country from national origin or citizenship-status discrimination," said Assistant Attorney General for Civil Rights Division Thomas Perez. "We will not hesitate to take action against employers who violate our nation's civil rights laws.‪"

The Memorandum of Agreement signed between USCIS and the Department of Justice's Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes protocol between USCIS and the Department of Justice for referring matters that fall within the agencies' respective jurisdictions.

The two new, educational training videos, explaining E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at
www.dhs.gov/e-verify and www.youtube.com/ushomelandsecurity.

Additionally, the USCIS E-Verify help line will now offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781 and will be active beginning April 5, 2010.

(Source: U.S. Department of Homeland Security, March 17, 2010)

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GEORGETOWN: Lewes cab company on probation for failure to do background checks

Dover – The Delaware Division of Motor Vehicles' has placed Comfort Ride Express Inc. of Lewes on Administrative Probation based on findings of a recent investigation associated with the death of a Lewes woman.

The DMV investigation was prompted by allegations that the individual accused of murdering a Lewes woman in November, 2009 was a valid driver working for Comfort Ride Express and had a criminal history that should have prevented him from working in such a capacity.

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A reality check for TV series producers

Questionable behavior of some wannabe stars has the reality TV industry rethinking its vetting processes.

Reporting from Los Angeles and New York - Michaele and Tareq Salahi were a reality TV producer's dream. Until they became a nightmare.

READ MORE

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Former UA Employee Slips Through Sex Offender Laws

FAYETTEVILLE, Ark. -- 40/29 News has learned that a former University of Arkansas employee, accused of breaking into a fraternity house, had a checkered past -- including a past arrest for sex crimes.

But at the time of his employment, his criminal past was never reviewed. And many are wondering how did he slip through the cracks?

READ MORE

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E-Verify Update

On August 26th, a federal district court in Maryland upheld DHS' E-Verify federal contractor rule and dismissed a Chamber of Commerce lawsuit to halt the implementation of the rule. The court held that contracting with the federal government is voluntary, thus they are not required to participate in the E-Verify system. The court further held that E-Verify is not limited to employment verification of new hires, since the Congress could have explicitly prohibited such an application, but did not. The ruling allows for the implementation of the E-Verify requirement for federal contractors to go into effect as scheduled on September 8, 2009.

(Source: Chamber of Commerce of the United States, et al. v. Napolitano, S.D. Md., Civil Action No. AW-08-3444, 8/26/09)

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