PDQ Legal

Senator Enzi Sends Letter to EEOC 12/20/2011

Revised guidelines regarding the use of criminal records and credit checks in employment background screening are expected from the Equal Employment Opportunity Commission (EEOC) this year. Senator Michael B. Enzi (R-Wyo.), Ranking Member of the Committee on Health, Education, Labor and Pensions (HELP), the Committee that oversees the EEOC, recently sent a letter to the EEOC strongly urging the Commission to allow input from all stakeholders prior to implementation of the new guidelines and to be mindful regarding how future guidelines can negatively affect businesses with respect to the hiring process, especially in the current economic climate.

To view this letter, please click here: Letter to the EEOC:

Private Georgia Employers and Mandatory E-Verify Use to Begin January 2012

The Georgia Illegal Immigration Reform and Enforcement Act (H.B. 87) mandates that every private employer with more than ten (10) employees must enroll in E-Verify by 2013. Specifically, the law mandates that private Georgia businesses with 500 or more employees participate in the federal E-Verify program effective January 1, 2012. Georgia businesses with 100 to 499 employees must participate in the federal E-Verify program effective July 1, 2012, and Georgia businesses with more than ten (10) but fewer than 100 employees must participate in the federal E-Verify program effective July 1, 2013.

Proof that a private employer is participating in E-Verify, which will be required, can be demonstrated by completion of an affidavit of compliance (to be found on the Georgia Attorney General’s website).

California Bill Restricting the Use of Credit Reports for Employment Purposes on Governor’s Brown’s Desk

California Assembly Bill No. 22 (AB 22), which limits credit checks of job applicants by most employers, is on Governor Jerry Brown’s desk for his signature. If passed, California would join Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington in restricting the use of credit checks by most employers for employment decisions.

Though previous attempts at similar legislation were vetoed by former Governor Arnold Schwarzenegger, many believe this legislation will pass.

If signed by Governor Brown, this bill would prohibit an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report for employment purposes unless the position of the person for whom the report is sought is:

*1. position in the state Department of Justice;

*2. a managerial position;

*3. that of a sworn peace officer or other law enforcement position;

*4. a position for which the information contained in the report is required by law to be disclosed or obtained;

*5. a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment;

*6. a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf;

*7. a position that involves access to confidential or proprietary information, as specified; or

*8. a position that involves regular access to $10,000 or more of cash.

Not only does AB 22 require written notice informing the person for whom a consumer credit report is sought for employment purposes, but it also requires the person be informed of the specific reason for obtaining the report.

SHRM Study: Drug Testing by Employers

The Society for Human Resource Management (SHRM), in a study commissioned by the Drug and Alcohol Testing Association (DATIA), found that 57% of employers conduct drug tests on all job candidates.

The poll, which was released in September 2011, surveyed 1,058 randomly selected Human Resource professionals. It reported that 69% of employers who currently drug test job applicants have done so for seven years or more while 12% have used drug tests for five to six years.

Other key findings include:

• 39% of small businesses with fewer than 100 employees had a drug-testing policy for job candidates; • 56% of businesses with 100 to 499 employees required pre-employment drug testing; • 62% of medium-sized businesses with 500 to 2,499 employees reported that they required drug testing; and • 71% of large organizations with 2,500 or more employees required all job applicants to take a pre-employment drug test..

The Texas Auditor’s Office recently reported

“Data in the DPS’s (Department of Public Safety) Computerized Criminal History System is not complete, and users may not receive a reliable result from criminal history background checks that are conducted based on the data in that system.” The Audit also provided, “A significant number of prosecutor and court records are not reported to DPS, which impairs the quality of information that DPS uses to conduct criminal history background checks,”

Although Texas law requires prosecutors and courts to send that data to DPS within weeks, DPS has no authority to penalize these agencies for failing to do same.

Therefore, a more accurate criminal record history check in the State of Texas would include conducting county criminal checks in the counties in which the subject has resided over the last seven years, rather than simply relying on the Texas statewide DPS database.

Connecticut to Restrict the Use of Credit History in Employment Decisions

Connecticut has joined five other states (Hawaii, Illinois, Maryland, Oregon, and Washington) that prohibit the use of credit history in employment decisions.

Governor Dannel Malloy of Connecticut has signed into law S.B. 361 (effective October 1, 2011), which will prohibit certain employers from using credit reports in making hiring and employment decisions. The law applies to all employers in Connecticut with at least one employee.

S.B. 361 bans almost all employers from requiring job applicants or current employees to consent to a request for a credit report as a condition of employment. Exceptions to the statute are: employers that are financial institutions as defined under law; credit reports required to be obtained by employers by law; and credit reports “substantially related to the employee’s current or potential job.”

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.

U.S. Supreme Court Upholds Arizona’s 2007 E-Verify Law

On May 26, 2011, in a 5-3 decision, the U.S. Supreme Court upheld the 9th Circuit decision that federal law does not preempt the “Legal Arizona Workers Act”, nor does it impliedly preempt the mandatory use of E-Verify requirement. This decision resulted from a challenge to the Legal Arizona Workers Act of 2007 (which should not be confused with the 2010 Arizona “Support Our Law Enforcement and Safe Neighborhoods Act”).

If found to have violated the provision regarding knowingly employing an unauthorized worker, the Arizona employer will be ordered to terminate the employment of all unauthorized workers and file quarterly reports on all new hires for a three year probation period. For an initial violation of the Act, the employer may also have its business license suspended for a period not to exceed 10 business days. A second knowing violation will result in the permanent revocation of the employer’s business license for the location where the unauthorized worker performed work. For the first intentional violation, the employer will be required to terminate all unauthorized workers, file quarterly reports on all new hires for a five year probation period, and have its business license suspended for a minimum of 10 days. A second intentional violation requires the permanent revocation of all business licenses. For knowing and intentional violations, it is considered a second violation if it occurs at the same business location as the first violation, during the probation period. Other states have adopted similar legislation.

Maryland joins Illinois, Washington, Oregon, and Hawaii in restricting the use of credit reports in employment decisions.

On April 12, 2011, Governor O’Malley signed into legislation the Job Applicant Fairness Act, which goes into effect on October 1, 2011. This law prohibits most employers from using credit information in determining whether to deny employment to an applicant; terminate an employee; decide compensation; or evaluate other terms and conditions of employment, unless it meets timing and job-relatedness requirements. 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, are excluded from the Act’s prohibitions.

Some exceptions allow employers to request or use credit information where such information is related to a “bona fide purpose that is substantially job-related.” The “bona fide purpose” exception generally applies to those positions involving money-handling or other confidential job duties. If an employer chooses to request or use credit information for a “bona fide purpose”, it must disclose its intent to do so in writing to the employee or applicant.

Individuals who believe an employer has violated the Act must file a complaint with the Commissioner of Labor and Industry, and an investigation will take place. The Commissioner may assess a civil penalty of up to $500 for an initial violation, and up to $2,500 for repeat violations. Fifteen other states currently have legislation pending, as well as the Federal H.R. 321: Equal Employment for All Act, aiming to restrict employers’ use of credit reports.

E-Verify Self Check

USCIS-

The E-Verify Self Check (“Self Check”) service is a free, Internet-based application that can be used by a U.S. worker over the age of 16 to confirm his or her employment eligibility. The service is currently available in a limited area while it is evaluated and improved. After the user enters a small amount of information, the Self Check service will check that information against various government databases to determine the user’s work eligibility in the United States.

Self Check is part of E-Verify, a Department of Homeland Security program administered by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration. Please click on the link to the right for more information about E-Verify.

Background Self Check was developed in response to a request by Congress to create a service through which U.S. workers could check their own employment eligibility status outside of the employer focused E-Verify process. It is the first service offered directly to the U.S. workforce by the E-Verify Program.

Benefits of Self Check The E-Verify Self Check service will bring a number of benefits to both U.S. workers and businesses.

Self Check will give U.S. workers access to their employment eligibility status and take the mystery out of the employment eligibility confirmation process. In addition, employees will have useful knowledge in fighting employment eligibility related workplace discrimination.

For businesses, the employer focused E-Verify process will be streamlined and shortened by a reduction in the number of data mismatches and, as a result, a decrease in amount of time employers and employees spend resolving those mismatches.

Association to E-Verify Self Check is the first online service offered directly to the U.S. workforce by the E-Verify Program.

E-Verify is an Internet-based system that enables an employer, using information reported on an employee’s Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States.

The Self Check service enables U.S. workers to use the same information that employers enter into E-Verify and check it against the same databases that E-Verify checks. It was developed to allow U.S. workers to confirm their own eligibility to work in the United States and deal with any potential data mismatches that may be found before being hired and checked by an E-Verify participating employer.

To learn more about E-Verify, please visit http://www.uscis.gov/everify.