Penn State University Implements Updated Background Check Policy

Posted on August 12, 2012 by firstcontacthr

Prior to the NCAA and Big Ten Conference sanctions, board of trustee decisions following the Freeh Report and the release of chilling voicemails left by Jerry Sandusky on a victim’s phone, the looming question of Penn State’s next steps still remain. The image of the university is undoubtedly tarnished after the Jerry Sandusky child sex abuse trial revealed university officials sat idle as children were victimized by the former assistant coach to the prestigious football team.

The university is still the subject of a number of investigations and the current president, Rodney Erickson says the university is cooperating fully. [Read more] Following the sanctions levied by the NCAA and Big Ten, credit ratings provider, Moody’s Corporation announced that it may cut the university’s current “Aa1” credit rating. A downgrade from Moody’s could make it more expensive for Penn State to borrow money – the school is already $1 billion in debt. [Read more]

Financial woes aside, the university has already begun taking steps to make a dent in replenishing the image it once had; removing the Joe Paterno statue from campus may not be enough.

Erickson announced earlier this month that the university would adopt a new background check procedure. On July 5, all current and future job candidates (including third-party candidates) must undergo a criminal background check prior to working for the university. HR99 as it’s called incorporates a “more comprehensive procedure that also ensures compliance with recently issued new guidance by the Equal Employment Opportunity Commission on background checks.”

Associate vice president of Human Resources, Susan Basso, says that “to provide the safest possible environment for our students, faculty, staff and visitors it is imperative that Penn State implements consistent and thorough background check procedures.”

First Contact HR has always recommended that higher education adhere to EEOC guidelines and adopt a comprehensive background check policy that meets their specific needs. No college or university is the same, yet identity verification, criminal records research, sex offender registry checks, employment and education verification and motor vehicle records review are all recommended services for any potential staff member of an educational institution.

Regarding the effectiveness of background checks, Jerry Sandusky had a criminal background and was even denied a volunteer coaching job in 2010 after Juniata College conducted a background check.

HR Professional Opinion:

Higher education institutions should audit their current practices and conduct an objective risk assessment. Student safety and security should be high priority and never subordinate to other objectives of the institution. Conducting comprehensive background checks that are in compliance with federal, state and local laws are key in protecting the institution’s reputation, hiring and retaining the right talent, while creating a culture that matches the institution’s goals, objectives and vision.

Higher education should evaluate all new hires, volunteers and contractors, considering the following factors against the work to be performed or held, the work performance location, and the degree of risk to the organization:

Any loyalty or terrorism issue;
Patterns of conduct (e.g., alcoholism/drug addiction, financial irresponsibility/major liabilities, dishonesty, un-employability for Negligence or misconduct, criminal conduct);
Felony and misdemeanor offenses;
Drug manufacturing/trafficking/sale;
Significant honesty issue (e.g., extortion, armed robbery, embezzlement, perjury);
Criminal sexual misconduct;
Serious violent behavior (e.g., rape, aggravated assault, arson, child abuse, manslaughter);
Illegal use of firearms/explosives; and
Employment related misconduct involving dishonesty, policy violations, criminal or violent behavior.

Further, prior to taking any adverse action against any subject, First Contact HR recommends consideration of the following:

The nature, extent and seriousness of the conduct;
The circumstances surrounding the conduct;
The frequency of the conduct;
How recently the conduct occurred;
The individual’s age and maturity at the time of the conduct;
The presence or absence of rehabilitation and other pertinent behavior changes;
The potential for pressure, coercion, exploitation, or duress;
The likelihood of continuation of the conduct;
How, and if, the conduct bears upon potential job responsibilities; and
The individual’s employment history before and after the conduct.

New Guidance issued by EEOC on Criminal Background Checks

Posted on May 7, 2012 by firstcontacthr

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on use of arrest and conviction records in employment decisions.

As a result, the new EEOC Enforcement Guidance aims to prohibit employers from using “blanket prohibitions” against hiring anyone with any kind of a criminal records, no matter how old the conviction and no matter what the prior offense may have been. When making employment decisions based on conviction records, employers should take a three (3) factor approach:

The nature or gravity of the offense or conduct;
The time elapsed since the offense, conviction; and/or completion of the sentence; and
The nature of the job sought or held.

More specifically, the Enforcement Guidance provides two circumstances in which an employer’s criminal conviction policy will “consistently meet” Title VII’s “job-related” and consistent with business necessity” defense. According to the EEOC, these circumstances include:

employers who are able to validate their use of background screening policies and practices as a business necessity will meet the defense, or;
develop a targeted, three (3) factor screening approach (as outlined above), and provide subjects with criminal records an opportunity for an “individualized assessment.”

Other defenses for employers to consider involve compliance with federal or state laws that are specific to their business. For instance, the FDIC Act requires banks to conduct criminal background checks on applicants and restricts their ability to hire individuals with certain conviction histories. Under these circumstances, this would be valid defense for claim of discrimination brought by an applicant or employee under title VII.

HR Professional Opinion

With the new EEOC Enforcement Guidance in place, here are some best practice tips and action steps for employers to consider:

Best Practice tips for employers:

Eliminate policies and practices that impose blanket prohibitions to employment based on any conviction;
Do not request arrest records from applicants;
Educate and train hiring managers and decision-makers about appropriate use of conviction history in hiring and promotion, and separation;
Revise screening procedures to ensure that they are job related and consistent with business necessity;
Do not ask applicants for disclosure of convictions that are not job related and consistent with business necessity, and;
Keep information about applicants’ and employees’ conviction history confidential.

Employer Action Steps:

Review background screening policies and practices in light of the new guidance, and;
Make adjustments needed to the extent practices cannot be justified as job related and consistent with business necessity, and;
Recruiters and job interviewers must be trained in connection with the EEOC’s Guidance in order to be credible witnesses in any challenge the employer’s hiring, promotion, or separation decision-making.

Employers Face Class Action Lawsuits for Online Applications in Violation of Fair Credit Reporting Act

Posted on February 2, 2012 by firstcontacthr

In a response to a lack of communication during the online application process, the National Law Forum reports that an increasing number of job seekers are suing employers who are in violation of the Fair Credit Reporting Act (FCRA).

In a recent class action lawsuit against K-Mart, prosecutors say that the online applications that they filled out for positions at K-Mart are in violation of the FCRA. The retailer allegedly utilizes buttons on their online applications that either say “decline” or “accept.” These buttons are the only means offered by K-Mart to obtain an applicant’s consent to submit to a background. Apparently, this simple button click is not the correct way to obtain a background check authorization from an applicant.

According to the Fair Credit Reporting Act, in order to provide full disclosure to a job applicant:

a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.

The simplicity of a “decline” or “accept” button does not constitute a written authorization, prosecutors say. Employers who utilize online job applications argue that under the Electronic Signatures in Global and National Commerce Act (E-Sign), electronically authorizing background checks are permitted. However, E-sign only applies to consumers or customers, not job applicants.

HR Professional Opinion:

(The comments below are part of First Contact HR’s opinion column where we offer the writer’s opinion on this post’s specific topic and thus should not be taken as legal advice.)

While it is certainly okay to obtain a background check authorization from an online job application, it is important to keep in mind that the authorization must:

Provide a clear and conspicuous disclosure in writing to the applicant that a consumer report for employment purposes will be procured;
The consumer has authorized in writing (such as e-mail, mouse click “yes” )the procurement of the report, and;
The electronic authorization must be “capable of being retained and accurately reproduced for later reference for the benefit of the consumer. Learn more

Regarding the K-Mart matter, it appears the company failed to satisfy the FCRA requirement stated above by requesting applicants merely to click a mouse button labeled “accept” or “decline.”

Although an electronic signature may prove to be a legally valid authorization to conduct a background check (under the FCRA), job applicants may be reluctant to accept the electronically-signed authorization and may require an actual hardcopy signature. To be safe, it might be prudent to stick with hardcopy signatures that are stored electronically with respect to background check authorizations.

Pepsi Beverages pays $3.1M to Settle Discrimination Charges

Posted on January 16, 2012 by firstcontacthr

PepsiCo Inc.’s bottling unit, Pepsi Beverages, has agreed to settle federal racial-discrimination charges as well as pledged to provide job training and new roles, according to the U.S. Equal Employment Opportunity Commission.

PepsiCo Inc. provided a statement that said the EEOC did not find any intentional discrimination. However, the company’s former criminal background check policy disproportionately barred approximately 300 black job applicants from employment. The EEOC, which enforces employment discrimination laws, said in a release that based on an investigation, “found reasonable cause to believe” that PepsiCo Inc.’s former criminal background check policy discriminated against black people.

The former policy and practice exercised by the company used the checks to screen out job applicants who had arrest records – even if they were never convicted of a crime. The policy resulted in limiting job opportunities for minorities, who statistically have higher arrest rates than whites.

The monetary settlement is being allocated in part to the claims process but primarily to division amongst black applicants for new positions at Pepsi. The company has also agreed to submit regular reports to the EEOC on its hiring process and offer anti-discrimination training to hiring managers.

Read EEOC press release: http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm

HR Professional Opinion:

(The comments below are part of First Contact HR’s opinion column where we offer the writer’s opinion on this post’s specific topic and thus should not be taken as legal advice.)

While it is unfortunate, PepsiCo Inc. was faced with claims of discrimination; it is commendable that the company has recognized its discriminatory policy and is taking steps towards creating a more diverse work environment. In the case of hiring, the EEOC clearly states: “There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

Pepsi overlooked this guideline, which could have been avoided had their HR department worked with a background screening company that could make sure their screening policies were aligned with the EEOC guidelines. Pepsi’s former policy not only limited employment opportunities for minorities by considering arrest records as a component of background screening, it also failed to take into consideration the applicant’s arrest as it related to the specific job.

First Contact HR advises its clients to only consider criminal conviction records that are job related before taking any adverse action against job candidates. Further, First Contact HR recommends employers always exercise good judgment and proposes the following ten (10) criteria for employers to consider when criminal record hits are discovered in background screening reports:

The nature, extent and seriousness of the conduct /conviction;
The circumstances surrounding the conduct;
The frequency of the conduct;
How recently the conduct occurred;
The individual’s age and maturity at the time of the conduct;
The presence or absence of rehabilitation and other pertinent behavior changes;
The potential for pressure, coercion, exploitation, or duress;
The likelihood of continuation of the conduct;
How, and if, the conduct bears upon potential job responsibilities; and
The individual’s employment history before and after the conduct.