The EEOC is Cracking Down on Employers with Pre-Employment Physical Ability Tests

The EEOC’s Strategic Enforcement Plan (SEP) focuses, in part, on eliminating class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

Since issuing the SEP, the agency has filed lawsuits against employers to ensure that there is a level playing field for women and individuals with disabilities, among other classes.  Recent cases demonstrate this with regard to pre-employment Physical Ability Tests (PATs) for job applicants.  The EEOC is pursuing employers where the PAT being used may be disparately impacting women – and, the EEOC is winning.  In the most recent case, $3.2 million was awarded to a class of female applicants, who were disproportionately turned away from a job because of the results of the PAT.

Given this impact, and especially in light of the size of the recent judgment, it is crucial for employers to understand the issues surrounding PATs.  The EEOC is searching for any disparate impact a PAT could have.  If one is found, the employer has the burden of showing (1) the use of the PAT is job-related and (2) the PAT is consistent with business necessity.  In order to show business necessity, the PAT must be predictive of the individual’s ability to perform essential job tasks.  The employer must also show that no alternative practice could achieve his or her objectives with less adverse impact.

The EEOC lists Best Practices for Employment Testing.  Those include:

  • Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
  • Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
  • If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
  • To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
  • Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

The following are some recommendations specifically for employers conducting PATs:

  • Ensure the PAT is properly validated (actually testing physical abilities that workers need on the job)
    • Use a professional job analyst/consultant (appropriate employee safety experts)
      • Include measurements of frequency, weight, durations, tools, and distances involved in performing physical tasks
    • Have the analyst document the verifiable physical tasks necessary for the specific job (not a class of jobs)
  • Design/Redesign a PAT to simulate job tasks or test minimum level of fitness required to safely and effectively perform the job.
  • Revalidate PATs to make sure tests are still measuring only necessary job tasks.

While PATs are useful tools to improve worker safety, they can result in disparate treatment leading to claims of discrimination.  Employers should pay close attention to their practices, consider the above recommendations, and be aware of the EEOC’s continued pursuit of employers who are not doing enough to ensure that women and people with disabilities have a fair chance to obtain a position that may involve a pre-employment physical ability test.

 

Long-Awaited Decision in California Clarifies Interpretation of Two State Statutes Affecting Background Screeners

On August 20, 2018, the Supreme Court of California held that the state’s Investigative Consumer Reporting Agencies Act (“ICRAA”) was not unconstitutionally vague as applied to employer background checks, despite some overlap with another state statute, the Consumer Credit Reporting Agencies Act (“CCRAA”).  In Connor v. First Student, Inc., a conflict between two courts of appeal about whether the ICRAA applied if a background screener did not obtain the information from personal interviews was resolved.  The case had a long and interesting history and had been pending for eight years.

While the statutes involved in this case have some differences, including the information they govern, the obligations and limitations they impose, and the remedies they provide for violations, they have something important in common.  Both the ICRAA and the CCRAA govern reports that contain information relating to character and creditworthiness, which was based on public information and personal interviews and used during the employment background screening process.  As such, the background check involved in this case was found to be an investigative consumer report under the ICRAA, triggering its application, and even though the CCRAA also applied, the defendants were not exempt from the requirements under ICRAA before conducting the background check.

Key takeaways from the court’s ruling in Connor include:

(1) partial overlap between two statutes does not render one unconstitutionally vague; and

(2) the ICRAA and CCRAA can coexist, as both acts are sufficiently clear, and each regulates information that the other does not.

With this decision, California companies should confirm with their background screener whether or not they fall under the ICRAA and are complying with its provisions, as well as with the CCRAA.

6 Simple Steps for Ensuring Background Screening Compliance

Take even just a quick glance at the Hire Image newsfeed, and you won’t be able to miss the barrage of stories about employers with class action lawsuits alleging violations of the Fair Credit Reporting Act (FCRA) to newer and more restrictive state, county, or city-specific laws that impose additional responsibilities during the hiring process. The legal requirements by which employers must abide are becoming increasingly convoluted and duplicative as laws are implemented at every level of government. Over the past year, many large employers, Wells Fargo, Chuck E. Cheese, and Home Depot to name just a few, have been tripped up by avoidable mistakes. From background check disclosure forms riddled with extra information, to the lack of a signed authorization, or improper adverse action steps, judges determined that basic FCRA rules had been broken.

Imagine adding into the mix all of the special requirements associated with local laws, and the risk of non-compliance increases exponentially. Much like a pilot ensures a safer flight by completing a pre-flight checklist EVERY time, HR professionals can reduce the risk in their background screening programs by committing to following a step by step process. Hire Image has developed COMPLY to clarify the required steps and provide a repeatable process that should be applied with every background check.


C
andidate notification (stand-alone disclosure)

Obtain candidate’s signed authorization AND provide

Mandatory FCRA summary of rights and state disclosures

Pre-adverse notification (if applicable)

Leave time for candidate to dispute

You decide. Hire, or Not (send adverse action letter)

Candidate Notification

One of the most common violations cited in FCRA lawsuits has to do with a disclosure that doesn’t meet requirements. Prior to obtaining a background check report for employment purposes, a clear and conspicuous disclosure must be made in writing to the applicant, notifying them that they may be the subject of a background check. The disclosure document must consist solely of the disclosure and, therefore, should never:

  • Include release of liability language or any other extraneous information
  • Be embedded in other hiring documents such as the employment application
  • Include state specific disclosures or notices

Obtain Candidate’s Signed Authorization

An applicant’s signed consent must be collected prior to initiating a background check. The signature can be collected on paper or electronically. If you utilize an online system that manages capturing the signature, it is important that the system meets the requirements of the Federal E-Sign Act. The Hire Image system meets these requirements, but if you use another provider or ATS system it is important to verify that their technology complies with E-Sign. Certain states require additional authorization as well.

Mandatory FCRA Summary of Rights and state disclosures

Prior to initiating a background check, applicants must receive a copy of the FCRA summary of rights. It is important that the most current version of the document is in use at all times. Even seemingly minor issues are considered a violation. Some states also require that applicants be provided with specific disclosures or notifications.

Pre-Adverse notification

If it is determined that you will not hire someone based in whole or in part on contents of the background check report, you MUST:

  • Provide notice in writing to the applicant. The notice must include:
    • Name, address, and toll free number of the background screening agency that produced the report.
    • A statement that the background screening agency did not make the decision to take adverse action and cannot provide specific information as to why action was taken.
  • Provide a copy of the FCRA summary of rights
  • Provide a copy of the background check report.
  • Provide information and/or documents required by state or local law- this could include but is not limited to, listing the specific information from the report that is the basis for potential action and enclosing locations specific notices.

Leave time for dispute

The FCRA states vaguely that a “reasonable” amount of time must be allowed for dispute prior to taking final adverse action. It is generally acknowledged that a reasonable amount of time is not required to exceed 5 business days from the time the applicant reviews a copy of the report. If the applicant disputes information on the background check report, the background screening agency has up to 30 days to re-investigate and submit new information if applicable. If the applicant doesn’t dispute, final adverse action can take place once the dispute period has ended. Implementing a dispute period of 7 business days will cover nearly all jurisdictional situations. However there are several locations with unique dispute time requirements.

You Decide – Hire or Not (send adverse action notice)

Once you’ve received new information from your background screening agency in the case of a dispute, or the dispute period has expired, the final decision can be made regarding whether or not employment will be denied or an offer rescinded. This final step also requires that you:

  • Provide notice to the applicant in writing. The notice must include:
    • Name, address, and toll free number of the background screening agency that produced the report.
    • A statement that the background screening agency did not make the decision to take adverse action and cannot provide specific information as to why action was taken.
    • Notice of the applicant’s right to receive a free copy of the report by submitting a written request to the consumer reporting agency no later than 60 days after receipt of the notice
  • Provide information and/or documents required by state or local law- this could include but is not limited to, listing the specific information from the report that is the basis for potential action and enclosing locations specific notices.

While COMPLY can help remind you to complete each step in the background screening process, it is only a guide. Hire Image does not provide legal advice and this information doesn’t cover every possible nuance of the screening process or your legal obligations for compliance. We recommend that you work closely with your employment attorney and background screening agency to verify that your program and processes address the various laws at each level of government.

 

Background Screening: Best Practices for Written Communications in the HR Process

One often overlooked but critically important step in the recruitment and hiring process is proper written communication. From the interview to the offer, issues can arise from not doing what is required in a consistent, fair manner and “to the letter of the law.”

Improper or untimely communications can impact compliance with laws, rules and regulations when it comes to hiring practices, particularly as it involves the employment background check process. For example, lawsuits can arise when a company fails to obtain an authorization in writing from a candidate prior to conducting a background screening, or when a company does not send an “adverse action” letter at the right time during the hiring process. Such communications are simple and often inexpensive ways to avoid costly legal action against your workplace.

Here are some best practices to follow when it comes to written communications and background screening:

  • Review your applications – online and in hard copy – on an annual basis at a minimum to ensure they are compliant with current laws. It is strongly advised that you consider removing the box that questions applicants about being convicted of a crime. Many states and local jurisdictions have already “banned the box,” with more states as well as the federal government expected to follow suit.
  • Make sure your applications and all related documents and forms are professional looking and worded so they are easy to read and understand. These documents should provide the applicant with a good impression of your company.
  • Provide a stand-alone disclosure in writing to the applicant that he/she will be subject to background screening. Make sure this disclosure is free of any extraneous information such as “release of liability” and other such language.
  • Obtain a signed authorization from the applicant, indicating his/her consent to conduct a background check.
  • If you are considering not hiring an applicant based on the results of the screening report, provide them with a copy of the report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” This paperwork must be sent in a timely manner, generally 5-10 business days.
  • If you are not planning to hire a candidate based on what was revealed in a background screening report, the applicant must be notified via a two-step “adverse action process.” The applicant has a right to dispute the results.
  • In addition to federal requirements, background screening requirements can be found in state law, international law or regulated industries that also need to be taken into consideration. Make sure that your hiring documents and process takes this into account.

A few more points to consider:

CONSISTENCY: It’s important that your background screening process be applied consistantly to all applicants being considered for the same job title. For example, while your program may include variations in the type of searches that comprise a background check based on the positions at your company, all candidates applying for the same position must undergo an identical screening process. From the application itself to the pre-employment paperwork, uniformity is key in avoiding discrimination issues.

SOCIAL MEDIA: Dealing with social media as it pertains to learning information about applicants can be particularly tricky. While many employers check an applicant’s social media sites, what they learn about the applicant just by viewing the site even briefly could open a company up to discrimination lawsuits and violations of privacy laws. Consider leaving investigations into your applicant’s background to an accredited background screening firm so you do not unwittingly stumble into an area that puts you and your company at risk.

An effective hiring process is one in which the communication between the employer and the applicant is a two-way street. A professional and accredited background screening company – working together with their legal counsel and yours – can help you navigate that street and steer clear of any costly pitfalls.

Healthcare Screening: Keeping Patients Safe and Your Organization Compliant

If your organization provides healthcare services, you already know that the nature of your business makes it inherently risky.  Whether we’re talking about a delicate medical procedure or billing for services rendered, danger exists. If you employ or contract with the wrong people the consequences could be costly.  A comprehensive healthcare-enhanced background screening program will help mitigate your risk, keep your patients safe, and protect your organization’s image by making it much more likely you will exclude those candidates with an unsavory past.

Because you’re providing services to vulnerable populations and billing governmental agencies that require a deeper investigation into the professional conduct of the providers and organizations that receive their funds, it’s required that your background screening process cast a wide net. In order to be in compliance under the Affordable Care Act (ACA) and to avoid civil monetary penalties (CMPs) for employing or contracting with excluded providers, that broad spectrum investigation must, at a minimum, determine if a provider appears on the Office of Inspector General’s (OIG) List of Excluded Individuals and Entities (LEIE). Seems easy enough right?  Unfortunately, OIG recently released a report showing that 12% of providers who were terminated for cause in one state continued to participate in other States’ Medicaid programs nearly 2 years later.  The issue at hand is that there is no single reliable source today for identifying providers who have been terminated from a state program and must be excluded from participation in any other state. This makes it mandatory to check all available state specific exclusion lists in addition to the LEIE.

To address this daunting task, Hire Image offers a comprehensive healthcare specific search called MedScan USA (available for both individual providers and entities). MedScan USA provides sanction information about medical providers, contractors, non-medical providers and organizations.  It also provides disciplinary action taken by state agencies, licensing and certification agencies for all 50 states and the District of Columbia and much more.  The data sources are from more than 1200 direct primary sources. Some of these sources include:

  • Patriot Act (OFAC, FBI, FinCen, etc.)
  • Office of Inspector General (OIG)
  • General Services Administration (GSA)
    • System for Award Management (SAM)
  • Federal Drug Administration(FDA)
  • Drug Enforcement Administration(DEA)
  • Health and Human Services(HHS)
    • Office of Research Integrity (ORI)
    • Public Health Service (PHS)
  • Tri Care Sanctions List
  • State specific exclusion lists

Some of the most common questions or concerns that arise with healthcare screening have to do with determining which persons or entities to screen and how often.  In the OIG’s updated Special Advisory Bulletin they provided guidance on these questions:

“…..review each job category or contractual relationship to determine whether the item or service being provided is directly or indirectly, in whole or in part, payable by a Federal health care program.  If the answer is yes, then the best mechanism for limiting CMP liability is to screen all persons that perform under that contract or that are in that job category”

“….screening employees and contractors each month best minimizes potential overpayment and CMP liability”

Even with the MedScan USA product addressing the compliancy needs of a healthcare organization both for initial and monthly screenings, there are other components of screening that are needed to safeguard the workplace and ensure the best possible hiring decisions. Adding the following components will provide the additional information needed to build the most comprehensive screening program.

  • Address and Social Security Number Trace –verifies the applicant’s social security number matches the applicant, and reveals alias names and previous addresses.
  • County and/or Statewide Criminal Records – Court records are searched for felony and/or misdemeanor records at the primary source of the record.
  • Nationwide Criminal Database –With over 500 million records from over 1,600 sources, this supplement to the local searches may uncover criminal activity that occurred outside of where the applicant lived or worked.
  • Sex Offender Registry Search –identifies individuals convicted of sex crimes by utilizing sex offender registries in all 50 states, the District of Columbia, the five principal US territories and federally recognized and registered Indian tribes.
  • Federal Criminal Search –includes violations of Federal law that are recorded in US District Courts. Federal crimes involve serious offenses such as embezzlement, robbery, drug trafficking, kidnapping, and internet crimes like child pornography.
  • Drug Testing w/ Expanded opiates and healthcare specific panels –Traditional 5 or 10 panel tests have been used for years across all industries, but they may not hit all the right targets for a healthcare organization. While it’s true that marijuana and cocaine still have the highest positivity rates, opiates like Oxycodone are on the rise. Adding expanded opiates to a drug panel will help uncover this. Healthcare specific panels can be tailored to add specific drugs of concern to the panel based on your organization’s needs.
  • Professional License Verification –verifies the credentials of medical professionals as well any other licensed individuals.
  • Education Verification –verifies graduation date and degree earned, but equally as important verifies the accreditation status of the institution (not a diploma mill).
  • Employment Verification -verifies the past employment of the applicant including, start date, end date and position. Other information obtained may include ending salary, reason for leaving, and eligibility for rehire.

 With the constantly changing rules and regulations in the healthcare industry, a comprehensive background screening program that both keeps you in compliance and your patients and employees safe requires frequent review. When was the last time you reviewed your organization’s screening program?  Contact us to learn how Hire Image can help streamline your processes and create the right screening program for your business.

Top 10 Background Screening Predictions for 2016

When it comes to background screening, drug testing and employment verification, human resource professionals and employment attorneys must keep pace with ever-changing rules, regulations, laws and more. What are the trends facing the industry for 2016, and what will have the greatest impact on the practice of human resources and employment law?

Here are Hire Image’s top 10 predictions for what’s still “hot” from last year and why, and what’s coming down the pike that demands attention and focus for 2016:

  1. “Ban the Box” initiatives will turn into “Fair Chance” policies

“Ban the Box” intends to create a situation where employers are required to wait until later in the hiring process before asking about an applicant’s criminal history. By removing the question about conviction history from the application, employers are unable to eliminate an applicant simply based on his or her answer and would be more likely to base the hiring decision on the applicant’s qualifications. As the movement has grown, so have its goals and requirements.  Rather than simply eliminating the criminal conviction checkbox, many of the laws now go further and require that an employer wait until after a conditional offer of employment to inquire about criminal history, limit the type or age of conviction records they consider, as well as conduct an individualized assessment of the applicant’s criminal past before choosing to rescind that offer. To date, seven states and the District of Columbia have implemented laws that impact private employers, and several major cities and counties have also taken up the cause within their own jurisdictions. San Francisco and New York City have adopted more comprehensive Fair Chance policies which proponents claim support a broader agenda of community economic development, criminal justice reform and civil rights protection. New “Ban the Box” laws introduced in 2016 will all likely include Fair Chance components. It is also expected that many of the current laws will be updated to incorporate Fair Chance components, as Philadelphia has chosen to do. Employers will need to understand and comply with not only the requirements under the Fair Credit Reporting Act (FCRA) when it comes to background checks, but also the added requirements of those laws in the states, counties, or cities in which they do business.

Click here for a list of all current “Ban the Box” laws.

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