E-Verify users should be aware of a new enhanced security feature. This recent update detects and prevents the potential fraudulent use of Social Security numbers (SSN) for employment eligibility verification, thus helping to combat identity fraud.
In a press release issued on November 18, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that the new safeguard enables USCIS to lock a Social Security number that appears to be misused by an individual, protecting it from further potential misuse in E-Verify. If an employee attempts to use a locked Social Security number, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration (SSA) field office.
If the employee contests the TNC and the SSA field office confirms the employee’s identity correctly matches the SSN, the TNC result will automatically be updated to an “Employment Authorized” status in E-Verify. USCIS encourages employees who successfully confirm their identities to call in order to find out about available resources on identity theft and fraud prevention.
E-Verify is offered by the Department of Homeland Security and allows employers to quickly verify the employment eligibility of new employees.
Earlier this week, the 2013 NorthCoast 99 winners were announced. Corporate Screening would like to congratulate all of the winners of this prestigious award. We would especially like to congratulate our clients, including:
Akron Children’s Hospital
Bialosky + Partners Architects
EMH Health Care
Panther Expedited Services, Inc.
Southwest General Health Center
The MetroHealth System
The Reserves Network
Western Reserve Hospital
We would also like to recognize University Hospitals for receiving the Workplace & Community Impact Award, which recognizes that make a unique and remarkable impact on the community and in the workplace, and lead by example through the practices they demonstrate.
And congratulations to Southwest General Health Center and The MetroHealth System for achieving the Legacy Award for having won a NorthCoast 99 award for 10 years.
To view the entire list of NorthCoast 99 winners, click here.
More EEOC news: BMW has requested that a federal judge dismiss the complaint filed in June against it by the Equal Employment Opportunity Commission (EEOC). The company also asked for the U.S. District Court in Spartanburg, SC to rule that the EEOC pay its attorneys’ fees.
The EEOC claimed that BMW’s criminal records policy had a disparate impact on African American employees and applicants, violating Title VII of the Civil Rights Act of 1964. The company denies that it engaged in unlawful employment practices. For more information about the case, read the June CS blog .
In recent background screening news of importance to employers, on August 9, 2013, a lawsuit by the Equal Employment Opportunity Commission (EEOC) against Freeman, Inc. was dismissed by a federal district court judge in Maryland without trial. The EEOC had alleged that Freeman, Inc., a service provider for corporate events, discriminated against African-American, Hispanic and male applicants by examining their criminal records and against African-Americans by reviewing credit histories for employment purposes. Their practices allegedly caused a disparate impact against these minority applicants in violation of Title VII of the Civil Rights Act of 1964.
Judge Roger Titus, of the U.S. District Court for the District of Maryland, did not mince words in dismantling the reports submitted by the EEOC’s statistical expert, Dr. Kevin R. Murphy, noting the reports contained errors, flawed data and were unreliable. Through the discovery process of the case, the expert was provided with the entirety of the hiring data of the Defendant, but Judge Titus noted the expert “cherry-picked” individuals to help bolster the EEOC’s claims of disparate impact. The Judge also categorized the expert’s methods to correct the report as “laughable.” With its data related directly to the Defendant eviscerated, the EEOC attempted to use nation statistics contained in the report to demonstrate disparate impact. The court ruled that the EEOC couldn’t demonstrate disparate impact based on national criminal justice statistics.
The Judge was also conscious of the chilling effect of blindly accepting the data proffered by the EEOC could have on employers; “[I]ndeed, any rational employer in the United States should pause to consider the implications of actions of this nature brought based upon such inadequate data. By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.”
Judge Titus also rejected the EEOC’s contention “that it had no duty to identify the specific aspect of Freeman’s policies that caused the alleged disparate impact and could merely rely upon the policy in general in support of its claims – a tactic frequently advanced by the EEOC in these type of cases.” (Source: Court Dismisses EEOC’s Background Check Lawsuit Basded On Its Relaince on “Laughable” and “Unreliable” Expert Report Filled Of “Effors and Analytical Fallacies”). And the court acknowledged that there are business reasons for conducting criminal background checks.
While the EEOC is expected to appeal this ruling, it is a good news for employers that use criminal background checks as part of their hiring process; however it is not a blanket ruling to use background checks indiscriminately. Freeman’s defense was strengthened by their nuanced approach to background screening which catered checks to the position sought, i.e. credit checks only for certain positions and the absence of a bright-line policy prohibiting the hiring individuals with criminal records. Indeed decisions to not hire an applicant because of a particular conviction “were reviewed and approved by Defendant’s senior vice president for human resources or vice president of benefits and compliance.
It will be interesting to see if this ruling has any impact on the actions brought by the EEOC against BMW and Dollar General which we told you about back in June. The dismissal of EEOC v. Freeman is sure to be just one battle of many between employers and the EEOC. Corporate Screening will continue to keep you apprised developments related to the EEOC and background screening.
You can read the entire court decision here.
Back in June, we told you about the EEOC bringing lawsuits against BMW and Dollar General for their background screening policies that may violate Title VII of the 1964 Civil Rights Act. These are the first major lawsuits brought by the EEOC based on their new Enforcement Guidance issued on April 25, 2012, which contends that certain background screening programs may have a disparate racial impact. Employers that utilize a “bright-line” policy of denying employment based on certain or any criminal convictions may violate Title VII, and instead employers should utilize an “individualized assessment” of the criminal information. Basically, employers should take each situation on a case-by-case basis.
The EEOC actions against BMW and Dollar General have led to much debate in the legal world and now the top lawman from nine different states have weighed in on the debate. Nine Attorneys General, led by Patrick Morrisey of West Virginia, submitted a letter to the EEOC, not mincing any words, that outlines their concerns with the lawsuits and the EEOC’s rational for bringing the lawsuits.
In the letter, Morrisey outlines what the AGs believe are the misguided applications of the protections afforded under Title VII. They call attention to the fact that “neither lawsuit alleges overt racial discrimination or discriminatory intent on the part of the companies…every individual who fails a criminal background check is equally refused employment.” While the EEOC is likely to argue that their enforcement is based on the unintentional consequences of the types of background screening programs employed by BMW and Dollar General and intent should not be a factor, the lack of intent to discriminate is a argument BMW and Dollar General could use to bolster their defense.
The letter also proffers the argument that through this application of Title VII protections, the EEOC is creating a new protected class that is not a part of the Civil Rights Act. Convicted criminal are not a protected class, but the manner in which the EEOC is enforcing Title VII is ipso facto creating a new protected class. Morrisey writes, “We are troubled that your agency’s true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals.” Later he notes, “But no matter how unfair a bright-line criminal background check might seem to some, it is not your agency’s role to expand the protections of Title VII under the pretext of preventing racial discrimination.”
Another aspect of the EEOC’s enforcement that caught the ire of the AG’s is the assertion that the EEOC preempts state and local law regarding the use of criminal offense for certain positions like Registered Nurses, Commercial Drivers, et cetera; “[T]his gross federal overreach is further exacerbated by your agency’s claimed preemption of state and local law. The guidance document purports to supersede state and local hiring laws that impose bright-line criminal background restrictions that are narrowly tailored.”
The letter also addresses the burden the individualized assessments can place on employers; “[F]orcing employers to undertake more individualized assessments will add significant costs. Employers will have to spend more time and money evaluating applicants that they would not have previously considered due to their criminal history and, in many cases, are unlikely to hire even after more thorough vetting.”
Finally, the AG’s urge the EEOC to rescind the Enforcement Guidance published April 25, 2012. While that seems unlikely, it remains to be seen what kind of impact the formal concerns expressed by the Attorneys General will have on future enforcements by the EEOC and the defense of any actions brought by the EEOC.
To read the letter in its entirety, click here.
Corporate Screening will continue to keep you apprised of any developments related to the EEOC’s enforcement actions.
Buffalo is the latest city to implement the “Ban the Box” initiative. New legislation will forbid employers from asking whether an applicant has been convicted of a crime on an application or directly. The law will affect the city, its vendors, as well as public and private employers within the city with 15 or more employees. Originally proposed to be effective immediately, an amendment was filed that will delay the effective date to January 1, 2014.
It should be noted that employers are not prevented from asking about convictions during the interview, only from asking about them before an interview. It there is no interview, employers are required to let the applicant know if there will be a criminal background check prior to when the employment will begin.
Exemptions from this law include:
• The Police Department, the Fire Department, and any employer hiring for positions such as police officer or peace officer.
• Public and private schools and providers of direct services to children, young adults, senior citizens, and the physically or mentally disabled.
• Employers hiring for licensed trades or professions i.e. physicians and attorneys (including interns and apprentices), may ask applicants the same questions asked by the trade or professional licensing body pursuant to New York law.
• In cases where certain convictions or violations are a bar to employment under New York or federal law
Employers that violate this new law may be subject to a civil action, and fines or penalties.
In addition to the new law, employers must still comply with Article 23-A of the New York Correction Law and the New York Human Rights Law (N.Y. Exec. Law § 296(15)) when considering an applicant’s prior criminal conviction in determining suitability for employment.
Update to Seattle “Ban the Box” Legislation
Seattle’s newest “Ban the Box” legislation, reported in this blog on June 17, 2013, will go into effect on November 1, 2013.
Cautions to Employers
Employers, please review your hiring practices. If you are in Buffalo or another city, jurisdiction or state that requires employers to remove the question about criminal conviction from your employment application, make sure this question is removed. And be careful about when you do ask about any criminal convictions by waiting to do so until later in the interview process.
Access to public records in California is under attack again by the State legislature.
Most of us in the background screening industry are aware of open records laws in various states that require governmental agencies and other publically funded organizations to allow timely access to public records and meetings. Currently in California, local governments must respond to document requests for public records within ten days and need to provide them in electronic format if that is the way they are available. A Mercury News editorial on June 18, 2013 (http://www.mercurynews.com/opinion/ci_23485981/mercury-news-editorial-public-records-act-must-be), points out that a change by the California legislature to the Public Records Act would mean that local officials could provide documents on their own timetable instead of the currently mandated ten day response time, and would not need to provide a written reason if they deny access to the records. The rationale for this change in law is cost savings, according to the editorial. They believe that ending the Public Records Act mandates on access would save the state “tens of millions of dollars” according to California’s Legislative Analyst’s Office (LAO).
In a follow up article on June 20, 2013, (http://www.mercurynews.com/california-budget/ci_23496254/california-assembly-restore-public-records-act?source=pkg) the paper claims that the changes being considered by the legislature “would allow more than 2,000 local government agencies across the state, such as counties, cities, school districts and water and sewer districts, to opt out of the Public Records Act on a yearly basis.”
While this is in the legislature in California, it’s an issue that people around the country should be taking very seriously. Our government is supposed to work for the people. Part of its role is transparency, and as such, the government maintains records for the public’s use. In the Ohio public records law there is a quote that puts into perspective the reason we need access to public records. The quote from Ohio Supreme Court Justice Charles Zimmerman states: “The rule in Ohio is that public records are the people’s records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same. Patterson v. Ayers, 171 Ohio St. 369 (1960).”
If records are not for us (the public) to view (with the exception of confidential information), then we have to ask, what is the government maintaining them for?
In recent months, Corporate Screening has communicated information about states and municipalities that have initiated or passed “Ban the Box” legislation in this blog and in our client alerts. “Ban the Box” legislation has been in effect in Seattle for public jobs since 2009. On June 10, 2013, Seattle’s city council unanimously passed legislation, that if signed by the mayor (which is expected), will make the city the latest in preventing private employers about asking about criminal convictions during the initial hiring process.
The key features of the law are as follows:
• It “Bans the Box,” that is, it prevents employers from asking on applications if a candidate has been arrested or convicted of a crime;
• It prohibits employers from taking adverse action based solely on an criminal history unless they have shared the information on which they have based their decision with the candidate, provided them with the opportunity to explain or correct the information, and hold the position open for at least two days after notifying the applicant; and
• Employers can deny employment if they have a “legitimate business reason.” This would be if the employer has a good faith reason to believe the applicant would pose harm to people, property or business reputation.
The law affects private employers with one or more employees, and applies to positions that work with the city of Seattle at least 50 percent of the time. It will not apply for positions in certain fields, such as law enforcement and security, as well as to positions with direct contact with children, elderly persons or disabled people.
As Corporate Screening has noted in the past, the “Ban the Box” movement is gaining momentum, and not just in the public sector. The private sector will increasingly be affected by this. We recommend all employers use this as an opportunity to review their hiring processes.
Last spring the EEOC issued updated guidance for the use of criminal background checks. Now it has begun to take action against employers that it claims discriminate against applicants or employees through the use of background checks. The agency filed suits against BMW in South Carolina and Dollar General in Illinois, alleging that the practices of each discriminate against African-Americans, who have higher arrest and conviction rates than whites. These are the first lawsuits of this type since the guidance was issued last spring
BMW’s criminal conviction policy, in place since 1994, denies facility access to BMW employees and contractor employees with certain criminal convictions. The company has no time limit with regard to the convictions. This policy affected dozens of employees that worked for a contractor that staffed a South Carolina BMW facility. The contractor’s policy was to limit review to convictions within the prior seven years. When the contract ended and employees re-applied with a new contractor, all employees were required to be re-screened and it was discovered that some employees had criminal convictions that violated BMW’s blanket exclusion policy. They were therefore not re-hired and were terminated.
In the case of Dollar General, the EEOC filed suit on behalf of two African-Americans – the first an applicant, and the second an employee. The first was an applicant who was offered a conditional employment offer. The applicant had disclosed a six-year-old conviction for possession of a controlled substance, and had worked for another retailer as a cashier-stocker for four years. The offer was revoked because Dollar General uses that type of conviction as a disqualification factor for 10 years.
The second applicant was terminated after a criminal record report about her was mistaken – she did not have the conviction attributed to her. She communicated this to the store manager, but was fired nonetheless.
Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. In these cases, the claim by the EEOC is that of disparate impact – in these instances against African Americans.
Why Are these Lawsuits Important for Employers?
1. The EEOC lawsuit against BMW specifically addresses the applicability of Title VII to an employer’s use of contract staff. BMW used a contractor, but required the contractor to conduct background checks. BMW ultimately made the decision not to allow the contractors into their facilities and because their process is perceived by EEOC as overly broad and having disparate impact on protected classes, they are being investigated. So, despite the fact that BMW was not technically the employer they still made the employment decision with regards to who could work in their facilities.
2. BMW’s criminal conviction policy had no time limits. Thus it is a blanket exclusion, with no individualized assessment of the nature or gravity of the crimes, the age of the convictions and whether the convictions applied to the work being done.
3. In the case of the Dollar General employee who was fired after a criminal background check returned criminal activity that was incorrectly attributed to her, this would be a clear violation of the Federal Credit Reporting Act (FCRA) assuming Dollar General used a consumer reporting agency (CRA) to conduct their background reports. Despite the employee advising the store manager of the inaccurate information, the company did not reverse its decision.
Corporate Screening advises employers to review their hiring practice procedures, in light of these cases. Take a hard look at practices such as blanket exclusions, specific time limits for convictions, and whether or not your organization’s policy allows for individualized assessments in cases where criminal background checks return negative information.
In a recent client alert, Corporate Screening informed customers about a newly published Special Advisory Bulletin that provides guidance to the healthcare industry on the scope and frequency of screening employees and contractors to determine whether they are Office of Inspector General (OIG) excluded persons. We think this is an important topic for all employers working in or with the healthcare industry, and wanted to bring this information to their attention.
The Special Advisory Bulletin was issued on May 8, 2013 and the new bulletin replaces the 1999 Bulletin. A link to the new bulletin follows: http://oig.hhs.gov/exclusions/files/sab-05092013.pdf.
Background on the OIG
The Office of the Inspector General was established to identify and eliminate fraud, waste and abuse in the U.S. Department of Health And Human Services programs, and also to promote efficiency and economy in its operations. OIG is charged with excluding personnel who have engaged in fraud or abuse from Medicare, Medicaid and other federal healthcare programs.
An OIG exclusion means that no federal healthcare program payment can be made for “any items or services furnished (1) by an excluded person or (2) at the medical direction or on the prescription of an excluded person.” The exclusion remains even if a person changes from one healthcare profession to another while excluded, and the payment prohibition applies to all methods of federal healthcare program payments. It also applies to administrative and management services furnished by excluded persons.
Violations occur if an excluded person submits a claim for federal reimbursement. A person doing so may be subject to fines and assessments, criminal prosecutions or civil actions, and doing so may provide grounds for the OIG to deny reinstatement to federal healthcare programs. Employers that employ excluded persons may be subject to fines. Settlements may also reach into the millions of dollars.
Guidance in the bulletin recommends that determining whether a person is excluded should be done by checking the List of Excluded Individuals and Entities (LEIE). Additional guidelines provided in the new bulletin include:
• Frequency of screening. Providers should check the LEIE prior to employing or contracting persons, and “should periodically check the LEIE to determine the exclusion status of current employees and contractors.” The list is updated monthly, and providers can determine how frequently to check the list. But in 2011, Centers for Medicare & Medicaid Services (CMS) issued regulations mandating that states screen all enrolled providers on a monthly basis.
• Which individuals and entities should be screened? Providers should review job categories or contractual relationship to determine if an item or service is payable (wholly or in part) by federal healthcare program. If so, the persons associated with that contract or job category should be screened.
Corporate Screening recommends reviewing your job categories and contractual relationships regularly to determine which employees are subject to these guidelines. We offer OIG searches, including the ability to accurately and efficiently search thousands of employees, and other services that can help your organization remain compliant with federal, state and local laws and regulations. Contact us at 800-229-8606 or email us at Sales@CorporateScreening.com for more information.