Message from the Editor:
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
EMPLOYMENT SCREENING NEWS
Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories
The Louisiana State Legislature passed House Bill (HB) No. 707, which prohibits discrimination in employment based on criminal history records that provides criteria for employers making hiring decisions in conjunction with criminal history records. Effective Aug. 1, 2021, HB 707/Act No. 406 specifically states that “[u] nless otherwise provided by law, when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.” In addition, the statute states that “[w]hen considering other types of criminal history records, an employer shall make an individual assessment of whether an applicant’s criminal history record has a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.”
The Evolution of Applicant Tracking Systems and Expert ATS Software Predictions for 2022
Around since the 1990s, Applicant Tracking Systems (ATS) started as a tool to process and store resumes automatically and have evolved to include things like resume parsing, job board posting, and recruiting analytics. About 75 percent of recruiters use an ATS, which now includes mobile capabilities, branded career sites, candidate texting, employee referral program management, interview tools, compliance and record-keeping tools, recruiting analytics, and reporting and cloud-based data storage. Many even include digital onboarding features. In 2022, experts predict ATS software will mimic social media and that ATSs will match rejected candidates to new positions.
CFPB Takes Action to Stop False Identification by Background Screeners
The Consumer Financial Protection Bureau (CFPB) has issued an advisory opinion that affirms that consumer reporting agencies are in violation of the law if they engage in shoddy name-matching procedures. The risk of mistaken identity from name-only matching is greater among Hispanic, Black and Asian communities because there is less surname diversity compared to the white population. The advisory opinion holds consumer reporting companies responsible for using reasonable procedures to assure maximum possible accuracy.
Law Proposed in Florida Would Require Background Checks on Maintenance Workers in Apartments
Florida Senator Linda Stewart has proposed a law that would dig up a maintenance worker’s past. Miya’s Law, named after Miya Marcano, who was killed by a maintenance worker who had a key to her apartment, would require apartment complexes with five units or more to give tenants 24 hours’ notice before entering an apartment. Under current law, complexes only need to provide 12 hours’ notice. Property managers also would be required to do background checks on all employees that have access to apartments.
Are You Ready? The Annual Clearinghouse Query Deadline is Fast Approaching
New in 2021, employers must run at least one Clearinghouse query on each of their CDL drivers annually by January 5, 2022. Failure to run this annual survey could lead to fines of up to $2,500 per driver. Employers have the option of running either a full or limited query, but if a limited query shows that there is information on a driver’s record, a full query will be required within 24 hours. Steps to meet this requirement include 1. Employer registration, 2. Driver registration, 3. Providing a limited consent form and, 4. Enacting a record keeping system that includes signed consent forms.
DRUG SCREENING ISSUES
NYSDOL Issues Guidance Regarding Employee Use of Cannabis
The New York State Department of Labor (NYSDOL) has published guidance regarding employee cannabis use. The guidance provides some additional information on the NYSDOL’s interpretation of “impairment,” clarifies an employer’s ability to discipline based on use and possession at the worksite, confirms the circumstances under which employers may drug test for cannabis and clarifies the reach of the law. Employers should continue to review existing relevant policies, consider the law’s impact on any collective bargaining agreement, assess the roles which the employer considers “safety sensitive” and clearly communicate the employer’s expectations to employees regarding drug use and possession in the workplace.
Tight Labor Market Affects Drug Testing Policies
The COVID-19 pandemic has caused an increase in the need for workers in various industries, including construction. In response, some employers are rethinking their hiring process, including relaxing drug testing policies. With more and more states moving toward legalizing medical and recreational marijuana use, the move makes sense as a way to address the tight labor market. The strategy could either attract the best workers or the ones who can’t get hired other places, according to Mark Pew, principal of The RxProfessor LLC.
Popular Drug Test Cheat Devices & How To Combat Them
Where there is testing, unfortunately, there is also cheating. We are living in the golden age of products that claim to help an individual pass a drug screen. Cheat devices are available from private sellers online, but they are also widely available in places as accessible to the public as Walmart. There is a different product for every type of test that can be administered, and each product is used differently and makes different promises to its consumers.
Employers need to stay up to date on the multitude of devices that are continually coming on the market and what should be done to combat them when they are encountered.
The most prevalent cheating schemes typically involve use of the following: Synthetic Urine, Drug Detox Kits, Oral Fluid Tampering Mouthwash and Hair Specimen Tampering Shampoos and Powders.
In addition, the deep dark depths of the internet offer other tips such as drinking bleach or consuming an entire bottle of the vitamin Niacin the day before a drug screen.
An employer’s best defense is to work closely with their drug screening team involved in collections to ensure they are following ‘best practice’ protocols and practices and are not taking shortcuts during the collection process.
E-VERIFY & IMMIGRATION STATUS
Discrimination Settlement Highlights Risks of Non-Compliant Electronic I-9 Software
Following an extensive 19 state (and the District of Columbia) Department of Justice investigation into the I-9 practices of Ascension Health Alliance, the DOJ’s Immigrant and Employee Rights Section (IER) discovered that from at least Jan. 1, 2018, to April 30, 2020, the health care organization used a custom-made electronic I-9 platform that improperly sent e-mails requesting updated work authorization documentation to all non-U.S. citizen employees, in advance of the expiration date recorded on their I-9. Ascension was alleged to have required non-U.S. citizen employees to present new documents in order to continue working in some instances. Ascension has agreed to pay a civil penalty of $84,832 for its unlawful document requests. It must also train its employees on the requirements of the INA’s anti-discrimination provision and is subject to monitoring for a three-year period to ensure they are complying with the agreement. The business also must ensure initial and ongoing training of those supervising their technology vendor.
How can a company’s HR software contribute to I-9 discrimination?
DOJ’s Immigrant and Employee Rights Section (IER) has noted in settlement agreements some common electronic I-9 problems that can lead an employer down the unfair documentary path. These include the following:
1) Prompting employer to reverify when not required: typically this happens when a system improperly considers an I-9 to be subject to re-verification or looks only at an expiration date in Section 1
2) Prompting employees to provide updated documents when not required: similar to the above, this often happens through a system-generated email,
3) Forcing employees to provide an expiration date for their work authorization in Section 1, even though “N/A” is acceptable
4) Requiring a social security number in Section 1 without regard to E-Verify participation 5) Restricting the document options in Section 2 (or 3) based on the employee’s attestation in Section 1, which does not account for innocent mistakes or changes in an employee’s status
6)Section 3 document options only showing List A documents, instead of both Lists A and C (i.e., those demonstrating work authorization)
7) Section 3 automatically populating the same document type that was used in Section 2, which can lead to improper demands for specific documents (such as EADs)
8)Improper submittal of an employee to E-Verify (e.g., existing hire with non-FAR employer, I-9 with receipt for lost, stolen, damaged, current employee with previously E-Verify result, etc.)
DHS Increases Civil Penalties for I-9 Paperwork Violations as of October 19, 2021
Employers should take a look at their current I-9 policies and procedures to reduce the chances of errors and mistakes and avoid increasing fines. Effective October 19, 2021, the Department of Homeland Security has imposed adjustments to a wide variety of civil monetary penalties, including Form I-9 paperwork fines. Where association violations occurred after Nov. 2, 2015, civil penalties will increase from $234-$2,332 to $237-$2,360. In addition to reviewing current I-9 policies and practices, employers should improve their process by utilizing a smart electronic I-9 system, and correct historical I-9s before it’s too late.
Lawsuit reveals the dangers of asking immigration related questions during the hiring process
When it comes to hiring protocol and immigration in the U.S., HR folks are caught between a rock and a hard place. On the one hand, you need to ensure you’re only hiring a legal applicant, but at the same time, you also have to avoid treating a candidate differently during the hiring process based on an individual’s real or perceived citizenship or immigration status.
The more you try to safeguard against an immigration or I-9 audit, the higher the likelihood that you may inadvertently treat non-citizen employees differently in ways which are not allowed by federal or state laws.
In a recent cased filed by plaintiff, Royer Ramirez Ruiz, a Washington-state resident and an approved member of the Deferred Action for Childhood Arrivals (DACA) program.
A technical recruiter contacted Ruiz about some open engineering positions at Zoom, which eventually led to a series of interviews. Ruiz was rejected for the position and subsequently filed a lawsuit in federal court in Seattle, alleging that Zoom discriminated against Ruiz when it rejected him for a job position solely on the basis of his citizenship or immigration status. Ruiz is seeking damages from Zoom for lost wages and emotional distress.
DATA PROTECTION & PRIVACY
2021 Year-in-Review – U.S. State Privacy Legislation
The COVID-19 pandemic has rapidly accelerated our reliance on digital services and platforms, which brings new challenges and expectations for data privacy. But, to date, there has been little movement towards all-encompassing federal privacy legislation. Therefore, the issue of consumer data privacy has been left to the states to decide. During 2021, 23 states introduced some form of all- encompassing data privacy legislation to address the absence of federal privacy laws, with only two becoming law: Virginia and Colorado.
The 2021 legislative session affirms that more comprehensive data privacy laws are coming.