Author Archive

EEOC Record Keeping Comes to Background Checks

Tuesday, May 23rd, 2017

For many years now, the EEOC has required specific record keeping when a company uses some sort of applicant testing as a screening tool for employment.  Testing broadly refers to any part of the recruiting process where a decision can be made on an applicant as to them advancing in the process.  According to the Uniform Guidelines on Employee Selection Procedures (UGESP), companies have to collect applicant data when they make adverse decisions of employment based upon the performance of protecting status people through the use of “interviews, review of experience or education from application forms, work samples, physical requirements, and evaluations of performance” (UGESP).

While there is a partial reprieve for employers with less than 100 employees, these guidelines require employers to keep race, sex and ethnicity data on applicants, hires promotions and terminations (Section 15, UGESP).  This requirement is nothing new for those employers covered by federal affirmative action guidelines.  For all other employers, this news may be a bit unsettling.  As it was for Crothall Services Group.

In 2015, the EEOC filed a lawsuit against Crothall Services Group, Inc., ( 2:15-cv-03812, in the U.S. District Court for the Eastern District of Pennsylvania) for not keeping the above prescribed records as they related to their use of background screening.  The case was recently settled through the signing of a consent letter where Crothall, in regards to conducting background checks, agrees to “keep records identifying the person’s gender, race, and ethnicity. Once Crothall has reviewed any person’s criminal history information or conducted any criminal history assessment, it also has to keep records of the criminal history information, the results of any criminal history assessment, and any employment decision made based on any criminal history assessment. The decree further requires record keeping relating to complaints about Crothall’s use of criminal history information and assessments, including complaints of discrimination, and regular reporting to EEOC throughout the decree’s duration” (EEOC).

So this leaves employers with an interesting choice.  If you adhere to the letter of the guidelines and collect race/gender information on all applicants, then that means the government will have the data it needs to potentially extract backpay and other monies from your company for applicants adversely impacted by your selection procedures.  If you collect that data, you are strongly advised to document why each applicant didn’t progress through the various levels of your selection process.  You would also would want a clear process on how long you maintain such records (one-year requirement from EEOC for non-federal government contractors).  If on the other hand, you chose to not collect data on applicants, then you could potentially find yourself in a situation like Crothall and be forced by the EEOC to adopt such practices going forward.  It’s also yet to be seen how an NC court would rule in such a case.

Regardless of the direction you go, we strongly recommend reviewing your applicant recordkeeping procedures and all “tests” you use during the selection process.

We can also help you with your background checking needs.  For more information please contact Kevin W. von der Lippe at (919) 878-9222, (336) 668-7746 or by e-mail; kevin.vonderlippe@capital.org.

Kevin W. von der Lippe is a licensed private investigator at CAI and for 19 years has managed our detective agency and background checking business.  He is security minded and proficient with the federal Fair Credit Reporting Act (FCRA) and the enforcement of Title VII of the Civil Rights Act of 1964, as administered by the EEOC as it relates to background checks. Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

Are you using the new Form I-9?

Wednesday, February 1st, 2017

Beginning January 22nd, 2017, all employers are required to utilize the new Form I-9.  The new form was created to reduce confusion and the resulting technical errors by both employers and employees.  This new form can be completed digitally and contains pull-down menus, embedded calendars and the like.

However, employers who complete the new Form I-9 online using Adobe Reader or other PDF reader, will still be required to print the form, procure handwritten signatures and store in a safe and accessible place.  Furthermore, employers will also need to monitor re-verifications and updates with a calendaring system.  You will also have to use E-Verify as a separate system.    You can read more about the new form at the USCIS website; https://www.uscis.gov/i-9.

If this system still sounds complicated to you, CAI has an easier solution.  Our Form I-9 service offers a version of the electronic Form I-9 that allows you to complete and store your I-9s paperless, and with the assurance that you are filling out the form in a compliant manner.

In addition to the electronic I-9, our system can seamlessly incorporate E-Verify.

Highlights of our service include:

  • Electronically complete, sign and store the Form I-9.
  • Real time validation of data entered into the Form I-9.
  • Instant Employment Authorization.
  • Expiration Notices – Email notification of an employee’s expiring work authorization is sent out before it becomes a problem.
  • No servers or software to install or maintain.
  • Easy Searching – Search for stored forms to export, or print the PDF.
  • Audit Log – All actions (creation, view and print) relating to a form are tracked in the audit log.
  • Multiple permission levels for increased security.
  • Duplication Alert – User is notified when entering a form for an employee who already has a form on file, thus preventing employees from using the same SSN.
  • Remote employee authorization – we have notaries around the country who can verify documents.
  • Great Customer Service – You know and trust us, we are just a phone call or email away.

If you would like to learn more about our electronic I-9 services, please give us a call and ask for Brielle Earley or Kevin von der Lippe at 919-878-9222 or 336-668-7746.

Kevin W. von der Lippe is a licensed private investigator at CAI and for 19 years has managed our detective agency and background checking business.  He is security minded and proficient with the federal Fair Credit Reporting Act (FCRA) and the enforcement of Title VII of the Civil Rights Act of 1964, as administered by the EEOC as it relates to background checks. Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

Supreme Court and Technical Flaws of Background Checking Paperwork

Thursday, May 19th, 2016

The alarm bells for employers have been sounding for the last few years about getting your federal Fair Credit Reporting Act paperwork in order.  The proliferation of class action lawsuits around Printproper release forms and the pre-adverse and adverse action paperwork has cost companies millions of dollars.  In large part, the class action suits have been driven by a Ninth Circuit Court (the federal court that covers California) ruling that identified that technical flaws in your company’s background checking documents was “injury” enough to have standing.  This change in the barrier to having standing in federal court made the creation of class action lawsuits very easy to file, and to win.

The new six to two ruling sends the matter back to the Ninth Circuit, but essentially states that in many cases the plaintiffs have to show some injury beyond a technical flaw in the company’s process.  Will this ruling abate the rising tide of FCRA driven class action lawsuits?  Only time will tell.

Making critical hiring decisions for your company is a huge responsibility. Not only is it critical to the success of the company, but also the safety of your employees and getting it right isn’t easy. Last year, approximately 90% of businesses in the US did some sort of background check on prospective employees to help protect their companies against the significant liabilities of negligent hiring lawsuits.

Unfortunately, the number of businesses out of compliance with the latest background checking standards grows every year and regrettably, most hiring professionals do not realize it until they are named in ever more frequent class action lawsuits.

Chances are that you are ordering background checks, but are you compliant?

Background checks compiled by third parties, such as CAI’s detective agency*, are covered by the federal Fair Credit Reporting Act (FCRA).  The FCRA covers more than financial records; it also includes reports that research criminal records, employment records, education information, driving records and even something as simple as an address history.  The FCRA was broadened in scope in 1997, and is designed to provide a safeguard for the applicant who has an adverse action taken against them based upon the results reported in the background investigation.  That is, if the applicant is denied an employment opportunity in whole or part by information contained in a background check, he or she has the right to view the information and dispute the record.

How do you comply?

  1. Have a permissible purpose (employment).
  2. Obtain written consent from the applicant.
  3. Run the check through a reputable third party Consumer Reporting Agency (CRA), like CAI.
  4. Look at the results and decide if the applicant fits the needs of your company:
    1. If the record is clean, keep the authorization form in a secure place.
    2. If the applicant is not hired due to something uncovered in the background check, then you should do the following:
      1. Mail a copy of the report, and
      2. a summary of the applicant’s rights under the FCRA, and
      3. a pre-adverse action letter [that includes the third party’s (CRA’s) name and contact info to the applicant].
      4. If your company is in North Carolina, you also want to send a copy of the NC Security Freeze to the applicant.
      5. After a reasonable amount of time (around five business days) you want to mail the declination letter to your applicant. During this time you should hold the position to give the applicant a chance to respond.
      6. After the “reasonable time” you may hire the appropriate applicant, thus filling the position.
      7. Store the rejected applicant’s signed written consent for six years.  SHRM recommends that you store the negative report for two years.

Hiring can be very stressful and CAI knows that it is better to get it right the first time.

Kevin von der Lippe

Kevin W. von der Lippe is a licensed private investigator at CAI and for 19 years has managed our detective agency and background checking business.  He is security minded and proficient with the federal Fair Credit Reporting Act (FCRA) and the enforcement of Title VII of the Civil Rights Act of 1964, as administered by the EEOC as it relates to background checks. Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

Contact Kevin at 336-899-1150 or kevin.vonderlippe@capital.org. or www.capital.org