Tag Archives: Federal laws

Congress Urges President Obama to Ban the Box

 BanTheBox

Written By ESR News Blog Editor Thomas Ahearn

More than 70 members of the U.S. House of Representatives have sent a letter to President Barack Obama urging him to “Ban the Box” on job applications and adopt a federal fair chance hiring policy at the federal level, according to a press release on the website of Congresswoman Barbara Lee (CA-13), one of the co-leaders of this Ban the Box effort. Continue reading

House Bill 2865 Seeks to Provide Fairness and Accuracy in FBI Criminal Background Checks for Employment

A bill introduced in the U.S. House of Representatives – ‘H.R. 2865 – Fairness and Accuracy in Employment Background Checks Act of 2013’ – seeks to provide safeguards with respect to the Federal Bureau of Investigation (FBI) criminal background checks prepared for employment purposes. The complete text of H.R. 2865 is available at http://www.govtrack.us/congress/bills/113/hr2865/text. Continue reading

Maine Revises State Fair Credit Reporting Act to be More Consistent with Federal FCRA

Maine Governor Paul LePage signed LD 1410 in June of 2013 to update the state’s consumer reporting law by adopting most of the provisions of the federal Fair Credit Reporting Act (FCRA), 15 United States Code, Section 1681 et seq., as amended. LD 1410 incorporates the federal fair credit reporting laws into state law while preserving enhanced protections found in current state law in Maine. The full text of LD 1410 is available at http://www.mainelegislature.org/legis/bills/bills_126th/billtexts/SP050401.asp. Continue reading

News Reports about Bank Firing Employee for 40 Year Old Shoplifting Charge Do Not Tell Entire Story

Recent news reports about how an employee of Wells Fargo in Milwaukee, Wisconsin was fired after a background check uncovered two 40-year-old shoplifting arrests from 1972 when she was 18 do not tell the entire story, according to one safe hiring expert, since there are two avenues that allow applicants and employees with minor offenses to work at banks. A Wells Fargo spokesman said the 58-year-old woman, who worked in customer service in the Home Mortgage department for five years and received numerous recognition awards, was terminated because Federal Deposit Insurance Corporation (FDIC) law prohibits the bank “from hiring or continuing the employment of any person who we know has a criminal record involving dishonesty or breach of trust.” Continue reading

Federal and California Background Screening Laws Examined as Safe Hiring Webinar Series Concludes April 4

Attorney and safe hiring expert Lester Rosen, CEO of background check firm Employment Screening Resources (ESR), will present the webinar ‘Caution Advised: Complying with Federal and California Law for Pre-employment Screening and How to Avoid Pitfalls and Traps’ on Wednesday, April 4, 2012 from 10:30 AM to 12:00 PM PST. The webinar is the last of four sessions in ‘A Guide to the Essentials of Safe Hiring eProgram Series’ presented for the Northern California Human Resources Association (NCHRA). For more information, visit: https://m360.nchra.org/event.aspx?eventID=38882&instance=0. Continue reading

U.S. Supreme Court Ponders Question Whether Employment Background Checks by Government Ever Too Invasive

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

A Law Blog on the Wall Street Journal (WSJ) website asks if there are limits to what the government can ask during background checks for employees of defense contractors and at what point – if any – does a government background check into the drug use history of low-level employees violate the constitutional right to privacy of those employees.

The WSJ Law Blog cites an account from the LA Times in which the U.S. Supreme Court was called upon to ponder this interesting question during a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks due to the fact that Caltech runs the Jet Propulsion Laboratory under a contract with NASA.

Although the Caltech scientists won earlier at the Ninth Circuit, which held that questions on background checks violated their constitutional right to privacy, the LA Times story indicated most Supreme Court justices were more inclined to uphold the background checks as they explored the limits to what the government should be allowed to ask.

While the Times reported some justices would not close the door to all claims of privacy, the acting U.S. solicitor general urged the justices to rule that the government could ask open-ended questions of its employees and contract workers during background checks. A transcript of the Supreme Court arguments can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf .

However, Employment Screening Resources (ESR) believes it is important to keep in mind that the type of government security background check discussed in the WSJ Law Blog – and by the Supreme Court – is much more in-depth than what private sector employers perform during background checks of their employees.

In the private sector, background checks are done by private companies for private employers, and not the government. Private sector background checks are focused on those things that a person has done in their public lives, such as where they worked, what schools they attended, or public records concerning criminal matters.

For a summary of the more limited tools used in the private sector for background checks, visit the Employment Screening Resources (ESR) ‘Services’ page at http://www.ESRcheck.com/services/.

Sources:
http://blogs.wsj.com/law/2010/10/05/is-an-employment-background-check-ever-too-invasive/
http://www.latimes.com/news/nationworld/nation/wire/sc-dc-1006-court-drug-history-20101005,0,6356707.story
http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf

Defense Department Report on Fort Hood Shooting Calls for More Education about Workplace Violence

By Thomas Ahearn, ESR News Blog Writer

In the wake of the tragic shooting spree on November 5, 2009 at Fort Hood, Texas that took the lives of 13 military personnel and wounded 32 others, the Department of Defense (DoD) is calling for more education about workplace violence as part of its final review of the recommendations from the independent report “Protecting the Force: Lessons Learned from Fort Hood,” this according to a news release on Defense.gov.

As part of the “follow-on” review final report, the DoD will place a high priority on implementing a number of recommendations to strengthen policies, programs and procedures in several areas, one of which includes “educating commanders about the symptoms of potential workplace violence and the tools available to them to address it.”

More specifically, “Recommendation 2.6 a, b: Update Policies to Address Workplace Violence” in the follow-on report states the Independent Review found that “guidance concerning workplace violence” was insufficient and that these programs “may serve as useful resources for developing more comprehensive workplace violence prevention.” As for future action to address workplace violence, the report indicates DoD policy and guidance on the prevention of workplace violence will be developed by January 2011.

The report stems from an incident in which Army Major Nidal Hasan, an Army psychiatrist, allegedly opened fire on soldiers readying for deployment at Fort Hood. He has since been charged with 13 counts of murder and 32 counts of attempted murder.

The report underscores the need for the DoD to to broaden its force protection policies, programs, and procedures to go beyond their traditional focus on hostile external threats.  The final recommendations of the Fort Hood follow-on review can be found at: http://www.defense.gov/news/d20100820FortHoodFollowon.pdf.

Since the troubling incident at Fort Hood in November 2009, several other deadly cases of workplace violence have occurred that have garnered national media attention:

  • In January 2010, an employee at a manufacturing company in Missouri involved in a lawsuit filed against the company allegedly killed three people and then shot himself.
  • In February 2010, a professor supposedly upset about being denied tenure at a university in Alabama allegedly fatally shot three professors during a faculty meeting. 
  • In August 2010, a truck driver in Connecticut who purportedly stole from his company and resigned reportedly killed eight people and then shot himself with a handgun.

“Workplace violence” is loosely defined as threats, assaults, and violent acts – including murder – which occur in, or are related to, the workplace. All employers should consider having policies, practices, and procedures to address the subject of workplace violence.

For more information on workplace violence, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.defense.gov/news/newsarticle.aspx?id=60536
http://www.defense.gov/releases/release.aspx?releaseid=13816
http://www.defense.gov/news/d20100820FortHoodFollowon.pdf
http://www.cnn.com/2010/CRIME/01/08/factory.shootings/index.html?iref=allsearch
http://abcnews.go.com/GMA/alabama-university-shooting-suspect-amy-bishop-violent-past/story?id=9839348
http://www.esrcheck.com/wordpress/2010/02/17/family-of-alabama-university-shooting-victim-hope-tragedy-leads-to-more-thorough-background-checks/
http://www.cnn.com/2010/CRIME/08/03/connecticut.business.shootings/index.html?iref=allsearch

DOT Amends Procedures for Transportation Workplace Drug Testing Effective October 1, 2010

By Thomas Ahearn, ESR News Blog Writer

According to a recently published final rule in the Federal Register, The U.S. Department of Transportation (DOT) is amending procedures for transportation workplace drug and alcohol testing programs in an effort to create consistency with many new requirements established by the U.S. Department of Health and Human Services (HHS).

Full details of the final rule – which takes effect October 1, 2010 – are available at http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf. Some of the changes will affect the training of and procedures used by Medical Review Officers (MROs). Highlights of these changes include the following:

  • DOT now requires drug testing for Ecstasy (Methylenedioxymethamphetamine or MDMA).  The initial screening cut-off concentration for MDMA will be 500 ng/ml and the confirmatory cut-off concentration will be 250 ng/ml for MDMA, as well as Methylenedioxyamphetamine (MDA) and Methylenedioxyethylamphetamine (MDEA), drugs that are chemically similar to Ecstasy;
  • The drug test cutoff concentrations for cocaine have been lowered.  The initial screening test cutoff drops from 300 ng/ml to 150 ng/ml, and the confirmatory test cutoff concentration has been lowered from 150 ng/ml to 100 ng/ml;
  • The drug test cutoff concentrations for amphetamines have been lowered.  The initial screening test cutoff has been lowered from 1,000 ng/ml to 500 ng/ml, and the confirmatory drug test cutoff concentration has been lowered from 500 ng/ml to 250 ng/ml; and
  • Initial drug testing for 6-acetylmorphine (“6-AM,” a unique metabolite of heroin, considered to be definitive proof of heroin use) is now required.  Specific rules have been added to address the way in which Medical Review Officers (“MROs”) analyze and verify confirmed positive drug test results for 6-AM, codeine, and morphine.

To ensure the safety of employees and to promote a safety conscious work environment, certain companies require a drug test for all new employees as a condition of employment, and a drug screen subsequent to a reportable traffic accident and a reportable workers compensation injury for current employees in certain occupations.

Employment Screening Resources (ESR) offers drug testing services as part of a comprehensive Safe Hiring Program that also includes employment/educational verifications and criminal background checks. For more information, visit the ESR website at http://www.ESRcheck.com.

Source:
http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf

New FTC Rules on Employment Verifications Do Not Affect Users of Consumer Reports

By Lester Rosen, President of ESR

Some employers may have read about new rules that went into effect July 1, 2010, that potentially affect the accuracy of employment verifications.  For employers concerned about the new rules, the short answer is that it does not affect how and when an employer receives a background report.  It also does not impact a standard response to a request for a past employment check. At most, it may only affect certain limited employers in their role as a “furnisher of information to third parties as defined by the federal Fair Credit Reporting Act (FCRA).

For example, it has been suggested that the new rules could potentially impact an employer that is utilizing a  third party services firm that routinely collects employment data such as payroll data or creates an employment database.

The new rules are at http://www.ftc.gov/os/2009/07/R611017factafrn.pdf. They stem from the Fair and Accurate Credit Transactions Act (FACTA) of 2003, which among other things, provided consumers a means to obtain free yearly credit report from the credit bureaus. The new law also required federal agencies to implement new rules aimed at promoting the accuracy and “integrityof information that furnishers provide to consumer reporting agencies.  A furnisher is a party that provides information.  The main thrust of the new regulations is aimed at organizations such as banks, financial institutions and credit card firms that provide data to the credit bureaus that are used to create consumer credit reports.

Although ESR cannot provide legal advice and it is possible that future clarifications may come out from the Federal Trade Commission or other sources, it certainly appears that the regulations do not affect an employer that simply responds to a standard request for a past employment check, and does not impact employers at all that are users of background reports.

Please contact Employment Screening Resources (ESR) at www.ESRcheck.com if you have any questions.

Source:

http://www.ftc.gov/os/2009/07/R611017factafrn.pdf

All GSA/FSS Contracts Mass Modified to Include E-Verify

By Thomas Ahearn, ESR News Staff Writer

On June 24, 2010, a mandatory mass modification — or “Mass Mod” — was issued requiring all U.S. General Services Administration/Federal Supply Services (GSA/FSS) contracts to include the most recent standard contract clauses, capture exceptions, and incorporate E-Verify into all contracts, according to the GSA.gov website.

E-Verify — a free, web-based Electronic Employment Eligibility Verification system — requires federal contractors to electronically verify the employment eligibility of employees working on federal contracts in the United States by comparing information from paper Employment Eligibility Verification (I-9) Forms to data in Department of Homeland Security (DHS) and Social Security Administration (SSA) databases.

E-Verify implements Executive Order 12989, and subsequent Federal Acquisition Regulation (FAR) rule, to require federal contractors to electronically verify the employment eligibility of employees working on federal contracts in the United States. The E-Verify modification incorporates FAR clause 52.222-54, Employment Eligibility Verification (January 2009), into all FSS contracts unless certain exceptions apply.

According to GSA.gov, so-called Mass Mods are initiated by the government when uniform changes to large numbers of GSA/FSS contracts are required, and are generally identical for all recipients unless there are contract-specific changes. Examples of Mass Mods include solicitation refreshes and the addition of contract requirements.

Contractors with a GSA/FSS contract are affected by this Mass Mod and must now verify the employment authorization of new employees and certain categories of existing employees with E-Verify. However, issues regarding compliance with E-Verify may be complicated and the consequences for violations of E-Verify can be severe, including the loss of federal contracts, civil penalties, and suspension from government contracting.

Some employers needing to comply with  E-Verify may use a designated third party agent to assist them with E-Verify compliance. One such authorized E-Verify Designated Agent –leading national background check provider Employment Screening Resources (ESR) — can help employers virtually eliminate errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce.

With over 200,000 employers currently using E-Verify and many believing that E-Verify should be mandatory, E-Verify Designated Agents ESR are helping businesses with the E-Verify process. For more information about the E-Verify Electronic Employment Eligibility Verification system, visit http://www.esrcheck.com/formi9.php.

Source: https://vsc.gsa.gov/eVerify_baseline_mod.pdf