All posts by Les Rosen

New California Case Underscores Employers Confidential and Privacy Obligations Regarding Employment Screening Background Reports

A new California privacy case underscores the need for employers to respect the privacy of job applicants and maintain confidentially, regardless of whether information is shared in written form or in conversation. Although the case did not involve background checks, it concerned discussion of an employee’s personal medical condition with co-workers. The case is Ignat vs. YUM! Brands, Inc. filed March 18, 2013 for the California Fourth Appellate District. Continue reading

New York Social Security Number Protection Law Amendment Allows Employers to Request SSN for Background Checks

New York law signed by Governor Andrew Cuomo in August 2012 that amended the state’s 2008 Social Security Number Protection Law has caused some concern for New York employers conducting background checks. However, a review of the law demonstrates that when it comes to background checks conducted under the federal Fair Credit Reporting Act (FCRA) and state law, the law does not impede an employer’s ability to utilize a Social Security number (SSN). Continue reading

Allegation of Failure to Update FCRA Compliance Forms by National Retailer Leads to 3 Million Dollar Settlement

A large national retailer has settled an employment class action lawsuit for $3 million that alleged the company violated the federal Fair Credit Reporting Act (FCRA) by failing to send proper notices to nearly 65,000 plaintiffs who were job applicants. More detailed information about the settlement reached in Pitt v. KMart Corp., Case No. 11-cv-00697 is available at: Continue reading

Background Screening Industry Faces Greater Scrutiny after Accuracy of Criminal Background Checks Questioned

In 2012, after reported cases of inaccurate criminal background checks costing job seekers employment, the background screening industry faced greater scrutiny over accuracy of reports. This increased attention included a Federal Trade Commission (FTC) report recommending regulations on data brokers, the FTC charging companies with alleged Fair Credit Reporting Act (FCRA) violations, a National Consumer Law Center (NCLC) report on inaccurate background checks, two New York Times editorials, the Consumer Financial Protection Bureau (CFPB) increasing supervision of background checks, and an NBC Today Show report on background check errors. In response, the National Association of Professional Background Screeners (NAPBS) refuted reports critical of the screening industry and pointed to an accreditation program created to improve accuracy. This focus on accuracy is Trend 1 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

EEOC Updates Guidance on Criminal Records to Prevent Employment Discrimination during Background Checks

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – voted 4 to 1 to update the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. According to the EEOC, the updated Guidance builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago and focuses on employment discrimination based on race and national origin. This greater focus by the EEOC on how employers use criminal records is Trend 2 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Ban the Box Movement Removing Question about Criminal Records from Job Applications Spreads Across United States

In December 2012, Pittsburgh, Pennsylvania and Wilmington, Delaware became the latest U.S. cities to join the growing “ban the box” movement when the City Council passed legislation that eliminated the check box asking about criminal history from job applications for the city. Pittsburgh joined other U.S. cities such as Boston, Chicago, Detroit, Philadelphia, San Francisco, Seattle, and Washington DC in banning the box. Reports from the National Employment Law Project (NELP) reveal more than 40 cities and counties and seven states have adopted “ban the box” policies that remove questions about criminal history from job application forms and delay them until later in the hiring process to ensure that qualified job applicants with arrest or conviction records are not unfairly shut out from employment opportunities. This growing trend is Number 3 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

New Privacy Laws for Collection and Use of Personal Data of Consumers Focus on Background Checks

In an effort to create stronger privacy protections for consumers, several states passed laws in 2012 regarding the collection and use of Personally Identifiable Information (PII) of applicants and employees by employers during background checks, or had important privacy regulations passed in previous years take effect. In addition, the Federal Trade Commission (FTC) is requiring nine data broker companies that collect and sell personal information of consumers to reveal their privacy practices or lack thereof. The increased regulations for greater privacy protections for data collected during background checks is Trend Number 4 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Offshoring Personal Data of Americans to Foreign Countries for Background Checks Opposed by Many US Screening Firms

When applicants in the United States apply for jobs, they usually undergo a background check using a disclosure and consent form required by law where they provide Personally Identifiable Information (“PII”) such as name, date of birth, and Social Security number (“SSN”).  What many job applicants and employers do not know is that certain U.S. background check firms “offshore” PII to foreign call centers and data processing locations beyond the protection of U.S. privacy and identity theft laws. However, many screening companies oppose the practice of “offshoring” out of concern that the practice provides little protection against identity theft and loss of privacy. The controversy over offshoring and employer concerns about the process is Trend Number 5 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

Class Action Lawsuits for Violations of Fair Credit Reporting Act Becoming More Common for Consumer Reporting Agencies

More and more background screening firms – also known as Consumer Reporting Agencies or “CRAs” – are facing lawsuits concerning the accuracy of background check reports and the failure to meet the guidelines of the federal Fair Credit Reporting Act (FCRA) that regulates background checks and the collection, dissemination, and use of consumer information in the United States. It is anticipated that in 2013, this trend towards lawsuits will continue as the government and job applicants become more familiar with the FCRA. This is Trend Number 6 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading

New E-Verify State Laws for 2013 Will Add to Already Confusing Patchwork of Regulations for Employers

On January 1, 2013, new E-Verify laws will take effect in Georgia, North Carolina, Pennsylvania, and Tennessee requiring many private employers to register for and begin using the federal E-Verify electronic employment eligibility verification system. This trend of states making their own laws for E-verify, an internet-based program that compares information from Form I-9s to government records to confirm that newly hired or current employees are authorized to work in the United States, only adds to the already confusing patchwork of regulations for employers to follow to maintain legal compliance. This is Trend Number 7 of the 6th Annual ‘ESR Top Ten Background Check Trends for 2013’ available at Continue reading