Steps to Follow When Making an Adverse Employment Decision

Posted on March 19, 2018 by firstcontacthr

On occasion, employers must make the difficult decision to withdraw a job offer or terminate employment based on the results of a background check report. As a best practice and to fully comply with local, state and federal laws, the following steps are recommended.

Making an Adverse Employment Decision
Determine whether the criminal record or discrepancy in the background screening report will present an unacceptable business risk or impact the person’s ability to meet the expectations of the job. Consider the relevancy of the crime to the job requirements, for instance a “driving while intoxicated” violation may have no impact on an office job where driving is not required. Review the severity of the crime, such as misdemeanor versus felony and; the time that has passed since the crime was committed (e.g.,1 versus 15 years ago).

Individualized Assessment
Once a decision has been made to withdraw the job offer or terminate employment, it is best to contact the person as quickly as possible. Let them know the results of the background screening report, and give them the opportunity to explain any perceived discrepancy. If there is evidence that there is erroneous data in the report or other mitigating circumstances, tell them you will re-evaluate the data. If the report is accurate, state that you will be withdrawing the offer or terminating their employment.

Pre-Adverse Action Notice
Let the person know that you will be sending them a pre-adverse action letter. This will give them the opportunity to contact First Contact HR directly if they believe the background screening report is incorrect. This letter will also provide them with a copy of the background screening report, and a summary of their rights under the Fair Credit Reporting Act.

Adverse Action Letter
After waiting seven (7) days, you should send an adverse action letter, which confirms that you made the final decision to either withdraw the job offer or terminate employment.

Changes in Law
Generating pre-adverse and adverse action letters are generally easy and straight-forward. Many organizations utilize a template or an automated process for inserting the subject data into the letters. However, recent changes in laws for some jurisdictions require that for pre-adverse and adverse action notices an employer provide specific information relating to the reasons they are making an employment decision or other documents or information be provided. In these cases, employers will need to customize the letters for each subject in the following jurisdictions to ensure compliance with local laws: CA, MA, NJ, Seattle (WA), Montgomery and Prince George’s Counties (MD), Philadelphia (PA), Portland (OR), Austin (TX), Chicago (IL) and New York City (NY).

An Inside Look at Properly Conducting a Background Check (Part II)

Posted on March 2, 2017 by firstcontacthr

00013880 The importance of choosing a background screening company that prides itself on being more than a transactional organization, cannot be overstated. Employers need HR Investigators who dig deeper and go beyond the surface of uncovered information to ensure data accuracy and legal compliance. Without this thorough approach, employers may hire dangerous and/or unqualified people, or, conversely, job applicants may lose opportunities because their identity is not properly verified. Either of these outcomes is bad for business. Hiring decisions based on bad data can land an employer in court (or worse).

Talented investigators avoid potentially negative hiring decisions by putting forth the added review and research required of every background check they perform.

Below are two real-world cases of checks that needed the extra time and attention.

A Picture Worth a Thousand Words

When running a criminal background check with a name and date of birth provided by the job applicant, a serious sex offense was discovered. The names did not match up and the middle initial of the job applicant matched only the first name of the convicted sex offender. Additional research led the investigator to discover several alias names, one of which matched the applicant, with a matching date of birth. The sex offender registry listed an address that, although similar, did not match with the information the applicant provided. Rather than giving up, the investigator grew resourceful. She forwarded a copy of the sex offender’s photo from the online registry to our client and asked that they confirm whether it was their job applicant. Sure enough, the convict and the job applicant were the same person. These extra steps positively identified a rapist who went out of his way to avoid detection, including providing an invalid address. Had the investigator run the sex offender search and nothing more, this applicant’s record would have been returned as clean, and the employer may have made a hiring decision without critical information about the applicant’s character and past criminal activity.

Good Guy/Bad Guy

In another example based on actual events, a criminal records researcher prevented an uninformed hiring decision for another employer due to his keen instincts, due diligence and understanding of what constitutes a “red flag” when performing a background search. In this case, a job applicant’s information was run through the applicable state’s sex offender registry. The applicant’s name matched an offender, but the year of birth did not match. Further, a social security number trace did not verify. A call to the client to verify the SSN and date of birth led our investigator to an entirely different SSN and date of birth. The correct SSN was run and the address matched that of the sex offender. A Google search found that the education, prior job experience, and resume did match with the information provided by the job applicant. Unfortunately, there were two different individuals with identical information. The individual purporting to be the Good Guy was actually a Bad Guy. The Bad Guy found the Good Guy’s resume and other information online and copied it onto his employment application. A classic case of identity theft! Turns out, the Bad Guy had an extensive criminal record, including forgery, criminal trespassing, and stalking. The frightening part is that without the foresight to follow up with the client about the personally identifiable information initially provided by the applicant, the education and employment information would have checked out as there was an individual by the same name who studied and worked as put forth on the consent form. Had the investigator not contacted the client to confirm the SSN, this criminal would have skated through the background check and come out clean on the other side.

At First Contact HR, the real-life illustrations above are used as a teaching resource for all new HR Investigator hires. If a SSN does not verify, there is a name hit (even if other information does not match) and/or the job applicant lists all previous employers as “supervisor no longer there,” prudence requires follow up and additional research by a team of HR Investigators.

For more information about First Contact HR’s background screening services and human resources consulting solutions, please call 267-419-1390 or email us at client.services@firstcontacthr.com

An Inside Look at Properly Conducting a Background Check (Part 1)

Posted on December 21, 2016 by firstcontacthr

00013790 In 2014, nearly 90% of all employers performed some sort of background screening on potential job applicants.[1] The industry really began booming after 9/11 in an effort to, among other things, ensure workplace safety and protect companies from lawsuits for negligent hiring. Unfortunately, many background screening companies are transactional in nature and work within a “big box” mentality, which leads to increased quantity of screens but with a decreased quality review and follow-up. Recently, one of these larger background screening companies was successfully sued for violations of the Fair Credit Reporting Act (FCRA), having misidentified an individual on two separate occasions as a convicted felon. Because of these mistakes, that individual lost two job opportunities. According to court documents, the large screening company failed to follow its own procedures pertaining to persons with common names and failed to implement a practice with respect to individuals previously misidentified. The background investigators also failed to utilize publicly available information which would have led them to discover that – in one instance – the man they identified as the job applicant was actually in jail at the time the actual applicant applied for the position. Although this individual won in court and received a hefty award from the jury, the outcome of similar situations is often times less satisfying, and the burden unfortunately falls on the job applicant to “clear his good name.”

Here’s an inside look at properly conducting an employment background check by an HR Investigator at a reputable background screening firm.

Upon running a criminal background check with a name and date of birth provided by the job applicant, a serious sex offense was discovered. However, the names did not match up and the middle initial of the job applicant matched only the first name of the convicted sex offender. Additional research led the HR Investigator to discover several alias names, one of which matched the applicant, with a matching date of birth. The sex offender registry listed an address that, although similar, did not match with the information the applicant provided. Rather than giving up, the HR Investigator grew resourceful. She forwarded a copy of the sex offender’s photo from the registry website to the client and asked them to confirm whether it was their applicant or not. Sure enough, the convict and the job applicant were the same person. These extra steps positively identified a rapist who went out of his way to avoid detection, including providing an invalid zip code. Had the HR Investigator run the sex offender search and nothing more, this applicant’s record would have been returned as clean, and the client may have made a hiring decision without critical information about the applicant’s character and past crimes. This situation can easily happen when background checks are run by inexperienced in-house staff, or when the background screening firm relies totally on technology to push data to its clients or end users without properly reviewing the results.

Our advice to employers is simple: properly conducting the background screening PROCESS is critical. A bad hire can lead to theft, violence, high turnover, or unqualified staff. If information is simply pushed through in an effort to add one more transaction to the company books, without any quality control measures, you may want to get yourself a good lawyer… or a better background screening company.

[1]http://www.pbs.org/newshour/bb/background-checks-make-mistakes-applicants-left-little-recourse/

PA Act 153 Amendments

Posted on July 17, 2015 by firstcontacthr

Recently, the PA general assembly passed legislation aimed at providing relief to colleges and universities required to comply with the Act 153 background check requirements. The bill (HB 1276) passed the House with a vote of 190-5. It was ratified by the Senate with a unanimous vote.

The new language removes the background check requirement for employees of higher education whose direct contact with children is limited to either (A) prospective students visiting a campus, or (B) matriculated students who are enrolled at the institution. The bill also limits the need for background checks to only those on the administrative staff who have; routine interaction (i.e, “regular and repeated contact that is integral to a person’s employment or volunteer responsibilities”), and direct contact, with children. These changes remove the background check requirement for the majority of the faculty and staff at colleges and universities.

However, background checks are still required for any employee of a college or university if that individual is in direct contact with a student who is enrolled in a secondary school. This measure is intended to protect children who are in dual enrollment programs and concurrently attend high school while taking college courses. Also, background checks are still required for any college employee who has direct contact with children at summer youth camps or other youth oriented programs.

The effective date for volunteers to get certifications has been extended to August 25^th 2015, and the re-certification for background checks has been increased from every three years to every five years.

First Contact HR’s Recommendation:

Because these changes come amidst colleges already going through screening practices that may now be extraneous – we would advise colleges and universities to continue to background check the majority of their employees in order to keep their institutions safe. Parents of children going off to college will feel more at ease knowing that the school they have chosen did more than the bare-minimum with regard to their students’ well-being. Keeping up to date with background checks on all employees is still the best practice, and with the recent fee reductions it is now more affordable to ensure the school’s staff is fully vetted.

Do Background Checks Contribute to Unemployment?

Posted on January 2, 2015 by firstcontacthr

Photo: http://newsonia.com/

With the unemployment rate under constant review, one of the most important questions being asked is: “what factors are causing unemployment?”

Gaining occasional attention is the notion of background checks leading to higher unemployment since they can bar applicants with a criminal record from landing a job.

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USDA Performs Drug Tests for Recreational and Medical Marijuana, Even in States Where It’s Legal

Posted on July 29, 2014 by firstcontacthr

Although the number of states that are legalizing marijuana is increasing, the U.S. Department of Agriculture is sticking to their “Drug-Free Workplace” Program. In a memo to over 100,000 employees, the USDA stated that while some may be permitted by state law to use marijuana for recreational purposes, it “is not authorized under Federal law nor the Department’s Drug-Free Workplace program.”

Under this program, the USDA may conduct drug tests randomly, after an accident / unsafe practice, or if they are under reasonable suspicion that a worker is using drugs. These tests check for substances identified by the Drug Enforcement Administration as Schedule I or II. Schedule II drugs, such as cocaine, Ritalin, and methadone, are categorized as substances with accepted medical use but have the potential for abuse. Conversely, Schedule I drugs have no accepted medical use and boast an even greater abuse potential than Schedule II. These drugs include marijuana, heroin, and LSD. The Drug-Free Workplace program has conducted Schedule I and II drug tests since 1988 and shows no sign of adjusting to recent marijuana legalization laws.

The USDA memo reminds workers that everyone who tests positive for marijuana, no matter the state, will be disciplined – including those who use medical marijuana. The memo references Medical Review Officer Manual, stating, “State initiatives and laws, which make available to an individual a variety of illicit drugs by a physician’s prescription or recommendation, do not make the use of these illicit drugs permissible under the Federal Drug-Free Workplace Program.” This puts those using medical marijuana under the same jurisdiction as recreational users.

While that may seem harsh, it should be noted that marijuana is still illegal under federal law. Therefore, the USDA, as a federal agency, must maintain a marijuana-free policy. Additionally, working under the influence of marijuana can potentially threaten the safety, health, and security of other USDA workers and the American public.

However, an article on the subject does note that federal policy might be in for a change. The Food and Drug Administration is performing a study on marijuana’s safety and medicinal effects. Should the Administration downgrade marijuana from its Schedule I status, the USDA’s strict stance on the drug may change

Discovery of Sex Offenders Employed in Theme Parks Sparks Need for Stronger Background Checks

Posted on July 23, 2014 by firstcontacthr

iStock_000015651642Small Since 2006 at least 40 employees of national theme parks have been arrested for trying to elicit sex from minors, possessing child pornography, and committing other sex crimes involving children. These child predators worked at parks such as Disney World, Universal Studios, and SeaWorld. While none of these cases involved the children visiting these supposedly child friendly parks, these potentially dangerous employees put the safety of visiting children at risk.

This pattern of theme parks hiring employees with a history of committing child sex crimes is shocking and disturbing. Recently, 16 sex predators, some of which being theme park employees, were caught in a Florida sex sting operations. But how do these predators even become employed at children’s parks?

Disney World Spokesperson, Jacquee Wahler maintains that Disney works “closely with law enforcement and organizations like the National Center for Missing and Exploited Children” in order to strengthen efforts against hiring sex predators. She also states that they “have extensive measures in place, including pre-employment and ongoing criminal background checks and computer monitoring and firewalls.” Universal Studios and SeaWorld also described having thorough background checks. Still, despite these attempts, some sex offenders manage to get hired.

Ernie Allen, co-founder of the National Center for Missing and Exploited Children, speculates that this may be because most child predators don’t have criminal records. However, he points out that there is more that companies can do to prevent hiring sex predators. For instance, in the future, these companies could perform more diligent sex offender registry research and sex offender background checks in addition to their general pre-employment and background checks. By strengthening their pre-employment research and background checks, theme parks can avoid this disastrous scandal in the future.

Government Shutdown and its Impact on HR

Posted on October 12, 2013 by firstcontacthr

For the first time in 17 years, portions of the united states government are closed as the House of Representatives, the Senate and the White house were unable to reach an agreement to fund the federal government for the 2014 fiscal year.

While the affects of this government shutdown are broad and far reaching, the main cause for concern for human resource professionals should be that a number of government organizations such as; e-verify, and the Equal Employment Opportunity Commission (EEOC), have been either shutdown or severely limited.

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Anatomy of a Background Check

Posted on August 21, 2013 by firstcontacthr

Lately, there has been quite a bit of discourse on the topic of background screening in the news. Between the EEOC suing Dollar General and BMW over their alleged discriminatory screening practices, the Philadelphia building collapse in June,and the Snowden/NSA information leaking case, there’s certainly plenty to discuss. But what exactly is a background check?

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Minimize White-Collar Crime in the Workplace

Posted on July 23, 2013 by firstcontacthr

White-collar crime is on track to cost the USA more than $300 billion annually, with the trend steadily growing as technology takes a prominent role in day-to-day business, according to the FBI. White-collar crime is defined as nonviolent financial crimes – commercial or consumer fraud, embezzlement, bribery, etc.

Recently, Mike Levy, Chief of Computer Crimes, U.S. Attorney’s Office, presented “White-Collar Crime: Are You At Risk?” to Fort Washington Business Alliance (FWBA) members at Talamore Country Club in Pennsylvania. Mr. Levy shared how businesses can proactively prevent cyber-crime by managing disgruntled employees, installing software updates and uncovering phishing scams.

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