This & That Tuesday: Harassment, Background Check Guidance

 

January 27, 2015

 

Hello Marty,

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

January 27, Labor Law Update 2015, Irwindale Chamber of Commerce

Information at: Human Resources 4U

 

February 5-6, What Employers Need to Know About Human Resources, Seminar

http://www.trainhr.com/ and go to Seminar Search – by month

 

February 11, Webinar on Discipline

http://www.trainhr.com/ and go to Webinar Search – by month

 

February 11, Labor Law Update 2015, Pomona Chamber of Commerce

Information at Human Resources 4U

 

February 12, Labor Law Update 2015, Glendora Chamber of Commerce

Information at Human Resources 4U

 

February 21, Labor Law Update 2015, Institute of Management Accountants, San Gabriel Valley

Information at: Human Resources 4U

 

March 11, Labor Law Update 2015, National Association of Women in Construction

Information at Human Resources 4U

 

Jackson County Pays $1.4 Million to Five Former Employees for Harassment

Jackson County (KS) will pay $1.4 million to settle sexual and racial harassment complaints brought by five former employees of the assessment department. No details of the alleged mistreatment were included in the settlement agreement approved by the County Legislature. All five women signed agreements requiring them to keep the substance of their claims confidential. But the document said the abusive behavior dated to the 1990s and continued until recently.

 

At least six county employees either engaged in the improper conduct or knew about it and did not report it, a county official said. All have left the payroll either through resignation, termination or retirement.

 

The women came forward with their concerns in the fall, a county official said. Heads of the department were thought to have no knowledge of any inappropriate conduct during the time it allegedly took place.

 

One of the women will receive half of the total, another gets $400,000, a third $150,000 and the other two $75,000 each.

 

Federal Agencies Offer Background Check Guidance

Complying with federal and state laws on background checks is no easy task, and the laws in this area just keep expanding. Recently, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws, and the Federal Trade Commission (FTC), which enforces the Fair Credit Reporting Act (FCRA), offered some joint informal guidance on employment background checks.

 

The guidance documents, one for employers and one for job applicants/employees, are easy to understand and a good reminder of an employer’s legal obligations. However, California employers need to remember that although these federal rules apply universally, additional state restrictions apply on obtaining and using background check information.

 

The EEOC has certainly placed background checks in its crosshairs – going after widespread background checking practices that it believes discriminate against a protected class.

 

The FTC has also upped its enforcement activity against entities that compile, maintain and sell sensitive consumer information and against employers who use employment screening tools.

 

Plus, there is increased class action activity and settlements related to FCRA violations, including technical violations. The FCRA provides specific rules for running background checks. An example of recent class action activity: In October 2013, a $2.5 million settlement was reached in a class action suit that claimed Domino’s willfully violated the FCRA by taking adverse action against applicants without providing the proper FCRA notices. The lawsuit also alleged that Domino’s buried the required notices instead of providing a “stand-alone” document.

 

Federal vs. California

Of course, nothing in California is simple. Applicants and employees in California are entitled to the FCRA rights, plus additional rights under the state’s Consumer Credit Reporting Act (Civil Code section 1785) and Investigative Consumer Reporting Agencies Act (Civil Code section 1786).

 

These laws prohibit credit checks (with limited exceptions) and require additional and more extensive notice during the background check process.

 

The federal guidance outlines the following key tips, which even California employers should keep in mind.

 

Before Obtaining Background Information

Treat all job applicants and employees equally without regard to race, national origin, sex, disability, age, religion genetic information or any other protected characteristic.

 

Don’t ask for genetic information; if somehow you obtained it, don’t use it to make employment decisions. Don’t ask for medical information before you have made a conditional job offer.

 

If you use a third party to get background information, make sure you inform the applicant/employee using a “stand-alone” document to provide notice and get written permission for the background check.

 

In California you also need to include a box for the applicant/employee to check if he/she wants a copy of the report. Consumer credit reports are prohibited except in certain limited situations and you must tell the applicant/employee which exemption allows you to access his/her consumer credit report. Use the Notice and Authorization to Obtain Consumer Credit Report form

 

If you want an investigative report (information about a person’s character, general reputation, personal characteristics and lifestyle), you must also tell the applicant/employee of his/her right to a description of the nature and scope of the investigation.

 

California law provides a broader definition of investigative consumer report and requires additional information to be disclosed. Use the Disclosure and Authorization to Obtain Investigative Consumer Report form

 

Provide a certification to the company that you obtained the report from. The certification should state that you: notified the applicant and got his/her permission for the report; complied with all of the FCRA requirements; and won’t discriminate or otherwise misuse the information.

 

Use the Certification to Consumer Credit Reporting Agency form.

 

Using the Background Information

Apply the same standards to all employees when using background information, regardless of race, age and so forth. Be on the lookout for employment decisions that may result in a disparate impact against a particular protected class. For instance, your screening criteria could end up excluding mostly people over the age of 40.

 

If you plan to reject an applicant, fire an employee or take any other type of adverse action based on the information obtained from the background checking agency, follow the FCRA rules, and give the applicant/employee:

• A pre-adverse action disclosure notice that includes a copy of the consumer report you relied on (use the Pre-Adverse Action Disclosure notice); and

• A copy of the FCRA notice, “A Summary of Your Rights under the Fair Credit Reporting Act.”
  This allows the person an opportunity to explain any negative information.

 

After taking adverse action, tell the applicant/employee:

• That the adverse decision (rejection, firing, etc.) was because of information in the report;

• The name, address and phone number of the company that provided the report

• That the company selling the report did not make the hiring decision and can’t give specific reasons for it; and

• That he/she has the right to dispute the report and may obtain an additional free report within 60 days.
  Use the Adverse Action Notice form 

 

Factoids

• The contingent workforce is expected to grow by 30% over the next 3 years

• More than 50,000 401(k) plans failed their nondiscrimination testing in 2012

• 80% of companies now provide benefits to couples in same-sex marriages which is a 34% increase since the DOMA decsion

• Almost 1 in 10 adults has limited English abilities, more than 2.5 times as many as in 1980

• In the past year 28% of employers increased their benefit offerings, 9% decreased them and 63% left them the same.

 

Quotes

“People do not care how much you know until they know how much you care.”

~Theodore Roosevelt~