Tag Archives: Background check

“Convicts Shall Apply” – So Says the State of Minnesota (And Illinois is Likely Next)

Contributed By Jeffrey A. Risch

In line with a minority but growing trend, on May 13, 2013 Minnesota enacted the Criminal Background Check Act.  The new law, effective January 1, 2014, restricts an employer’s ability to request any criminal history (including actual convictions) from a job applicant.  The new law allows employers to only consider or require disclosure of an applicant’s criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made.  Violations will be investigated and monetary penalties assessed, exclusively by and through the Minnesota Department of Human Rights.  Exceptions do exist for employers who have a statutory duty to inquire, request and consider criminal convictions or histories. Minnesota joins other states like Massachusetts and Hawaii with the so-called “BAN THE BOX” legislation directed at private and public employers.  And, Illinois is likely next…

Illinois’ proposed Employee Background Check Act (HB 3005), would prohibit any employer, on the face of an employment application or through any other means, from inquiring into, considering or requiring disclosure of the criminal record or criminal history of a candidate for employment until the candidate has been selected for an interview by the employer or, if there is not an interview, before a conditional offer of employment is made to the candidate.  However, such restrictions would not apply to employers who are required to exclude candidates from employment because of municipal, state, or federal law or regulation.  Also, under the proposed law, if an employer hires a candidate pursuant to the law, the employer shall have a rebuttable presumption in any legal proceeding against the employer regarding the employment of the candidate that the employer performed its due diligence and acted in good faith in hiring such candidate. The Illinois Department of Labor would investigate and assess monetary penalties for willful and knowing violations.

All employers should pause and carefully review their applications as well as their hiring practices.  The “one size fits all” approach is done (and has been for quite some time) for multi-state employers.  Also, under EEO and anti-discrimination laws, most employers are strictly prohibited from using criminal convictions or histories as a per se basis to deny employment or other opportunities in the workplace.

SmithAmundsen LLC continues to monitor such developments on a local, regional and national basis for our clients and contacts.

Multi-State Employers: Do These New State Laws Pertain To You?

Contributed by Heather Bailey

Arizona Min. WageBe sure you’ve increased minimum wage to $7.80.

California Criminal Background Checks:  Effective January 1, 2013, if you perform background checks by obtaining state criminal history information, you must start giving applicants  a copy of their state summary criminal history information – promptly – if this information played a part in any adverse action like not hiring them for the job.

Florida Min. Wage:  Minimum wage now equals $7.79 per hour.

Georgia Criminal Records:  In July, arrest and criminal records access is going to change. For example, access will no longer be for any arrest and employers must supply either fingerprints or detailed information regarding the individual, such as full name, address, Social Security number, race, sex, and date of birth, which is accompanied by a signed consent on a form approved by the Georgia Bureau of Investigation’s Crime Information Center.

Illinois Workplace Violence Initiative:  The Illinois Chamber of Commerce is actively working on legislation that will give employers an avenue to get temporary restraining orders when persons cause threat of violence in the workplace.   Stay tuned for this much needed legislation!

Michigan Employee Private Social Media:  In December 2012, Michigan joined the bandwagon of prohibiting employers from requiring employees and applicants to give up their social media logins and passwords and from taking adverse action against them should they not comply with the request.  Effective March 28, 2013, Michigan will become one of our nation’s right to work states.  So, generally, employers cannot require employees to join or remain a member of a union.  Finally, you may now be able to collect a minimal administrative fee (i.e., $1-$2) for child support garnishments each time a deduction is made.

Missouri Min. Wage:  Minimum wage is raised to $7.35 an hour – be sure you’ve made this increase!

New Jersey Posting Requirements:  If you have 50 or more employees, there are new notice and posting requirements in place from the New Jersey Department of Labor and Workforce Development and Department of Law and Public Safety’s Division on Civil Rights for gender equality in the workforce and anti-discrimination.

Vermont Min. Wage: Your minimum wage went up too – $8.60 per hour.

State laws change every day.  Make sure you are aware of them all for the states in which you have employees!

Updated Fair Credit Reporting Act – What Does That Mean For Employers Who Perform Background Checks?

Contributed by Heather Bailey

Not too much.  However, effective July 2011 pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, there is a new sheriff in town and its name is the Consumer Financial Protection Bureau, which will now have the rulemaking and enforcement powers over the FCRA instead of the Federal Trade Commission. 

Effective January 1, 2013, the Bureau implemented an interim FCRA rule.  The good news is, there were no substantive changes in the way employers notify applicants and employees about background checks (i.e., the consent form, pre-adverse action notice, and post-adverse action notices if any such actions are taken).   The only change employers need to worry themselves with is the new “Summary of Your Rights Under the Fair Credit Reporting Act” notice that is given to applicable applicants and employees. The revised notice can be found at http://www.gpo.gov/fdsys/pkg/FR-2012-11-14/pdf/2012-27581.pdf, page 67748 (or page 5 of the actual document).

The only other significant change for employers is they will start receiving a “Notice to Users of Consumer Reports of their Obligations” from their vendors who perform the background checks as this is now required of them.  Be on the look-out for future updates to this existing law by the Consumer Financial Protection Bureau as it does not seem like it is done with its new authority.

If you do background checks on applicants and/or employees for any reason and you do not currently have a system in place for properly getting consent or notifying employees appropriately under the requirements of the FCRA, it is imperative you speak with counsel immediately to institute a practice for compliance.

EEOC Issues New Guidance on the Use of Arrest and Conviction Records in Employment Decisions

Contributed by Jill Cheskes

On April 24, 2012, by a 4-1 vote, the EEOC issued guidance that stated that Title VII does not prohibit the use of criminal background checks but that employers could violate Title VII if they intentionally discriminate against individuals with a criminal history or if their policies have a disparate impact based on race or national origin absent business necessity.  The EEOC stated that “individualized assessments” should occur when an employer receives negative information from a background check so as not to discriminate.  Nothing in Title VII requires any individualized assessment but the EEOC guidance now does.

Additionally, the EEOC stated that following state and local law may not be a defense.  The EEOC also recommended that employers “ban the box” on the application form that asks employees if they have been convicted of a felony.  The guidance does not, in any way, prohibit background checks, however, this suggestion of “banning the box” has been met with opposition. 

Practically speaking, there is little reason for an employer to do such a thing and certainly Title VII does not require it.  Quite honestly, an employer faces a host of other liability issues if they fail to perform a background check that would have revealed negative information.  At the end of the day, the guidance probably does not do more than most employers are likely already undertaking with these issues but the EEOC is now saying some of these things are required under Title VII. 

Employers are still able to use this information to deny employment but they must assess whether the hiring policies intentionally discriminate or have a disparate impact on minority candidates.

Friend Me??

Contributed by Julie Proscia

Back in the pre-digital day, employers checked up on potential employees by picking up the telephone (gasp-no not even a cell phone) and speaking with another real live individual. The controversy with this method revolved around what “not eligible for reemployment” really meant (by the way it means do NOT hire the person). Now prospective employers rarely call references but instead run digital background checks, surf the Internet and monitor LinkedIn and Facebook sites to ascertain who their potential new hire really is. There is an ever increasing number of employers that require applicants and employees to “friend” them on Facebook or turn over social media passwords, and this is causing a storm of controversy and sparking legislation in an attempt to safeguard privacy rights.

Illinois is one of a number of states that is struggling to respond to this dichotomy – the right to know versus too much knowledge. Currently pending, and on a Third Reading in the Illinois House, is an amendment to the Right to Privacy in the Workplace Act. The amendment would make it unlawful for any employer to ask any prospective employee to provide any username, password or other related account information in order to gain access to a social networking site where that prospective employee maintains an account or profile. The amendment would not reduce an employer’s right to promulgate and enforce lawful workplace policies regarding electronic communications and social media. If passed it may make the question, “friend me” just as illegal as “what religion are you?”

While the internet is a wonderful tool for knowledge, particularly on such philosophical issues as “is the Mango really the most popular fruit?” it is also a door into the secret life of not only your employees but also your applicants. It gives prospective employers the opportunity to peek behind the curtain and see what or who the individual really is.  While individuals’ resumes may state that they are hardworking and dedicated, their Facebook pages could reveal that last Saturday they had a lampshade on their head and a beer in their hand. The separation between the public and private is a question of boundaries – that is not easy. On one hand there is a legitimate argument that if a person puts information out for the world to see, it is fair game – on the other, there is the equally legitimate idea that whatever happens after 5:00 p.m. is personal time. This is the delicate balance that courts are just beginning to battle and that Illinois is examining.

Whether or not the legislation passes will only be the beginning of this debate. Stay tuned for more details. In the mean time, friend me, I am the attorney with the lamp shade on the left…

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