Steps to Follow When Making an Adverse Employment Decision

 

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).

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Affirmative Action Plan: Is Your Organization Required to Have One?

Recent news of the United States Supreme Court’s Affirmative Action ruling sheds light on the importance of having an Affirmative Action Plan which adheres to the legal requirements set forth over 5 decades ago.  In a 5-3 decision, the Court upheld a race-based affirmative action policy of the University of Texas at Austin.  Abigail Fisher, a Caucasian woman, sued the school over what she deemed to be racial discrimination after she was denied admissions to the school in 2008.

The University’s admissions protocol consists of a two-pronged approach: 75% of the student body is filled with public high school students who finish in the top 10% of their graduating class, while the remaining 25% of seats are filled based on a number of factors, one of which is race. This Top Ten Rule is known as a “holistic” approach to admissions decisions.  Their policy is meant to increase black and Hispanic admissions at the University, which historically were lacking.

Based on her academics, Abigail Fisher did not qualify for admissions under the 10% rule, making it necessary for her to compete for the limited number of enrollment slots remaining.  Ultimately, she was not accepted into the University.

What is the Goal of Affirmative Action?

Although Affirmative Action in the area of education, which is aimed at student enrollment, differs from employment-related Affirmative Action, aimed at hiring and employment practices, the intent of both is the same: to ensure certain protected classes receive an equal opportunity for consideration in education and employment and, in the case of employment, an equal chance to advance in the organization.

Who Needs a Written Affirmative Action Plan?

Government contractors and subcontractors with at least 50 employees, and a government contract of $50,000 or more, are required to have a written plan that is updated annually. The applicable laws cover minorities and women,[1] veterans[2] and people with disabilities.[3] Additionally, a financial institution that is a Federal Deposit Insurance Corporation (FDIC) must comply with Affirmative Action laws.[4]

Who Enforces Affirmative Action Regulations?

The United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) oversees and enforces the obligations of affirmative action and equal opportunity programs required for those organizations doing business with the federal government.  The OFCCP has the power to conduct audits on organizations required to have an Affirmative Action Plan in place, obtain Conciliation Agreements from those in violation of regulatory requirements, and recommend enforcement action(s) to the Solicitor of Labor. Penalties for non-compliance may include monetary penalties, including back wages to applicants negatively impacted, and/or debarment.  Companies who are debarred lose the right to hold federal government contracts in the future.

How First Contact HR Can Keep Your Organization Compliant?

Our Affirmative Action specialists can create a custom Plan for your organization that meets all the necessary legal requirements.  We can update your Plan annually and accomplish all of these goals while offering a competitive price and accessibility to our Affirmative Action Team for any questions or support needs.  Please contact us today to get started!


[1] Executive Order 11246 on Nondiscrimination under Federal Contracts, Subpart B, Sec. 202(1)

[2] Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.

[3] Section 503 of the Rehabilitation Act of 1973, as amended.

[4] 41 CFR 60-1.3; 41 CFR 60-250.2; 60-300.2; 60-741.2


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Do Background Checks Contribute to Unemployment?

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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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Government Shutdown and its Impact on HR

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

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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Top 10 Background Check Trends for 2013

The rising popularity of background checks has given rise to new trends for vetting new hires and employees by organizations across the U.S.The growth of background checks also permeates other areas such as screening of volunteers, contractors, business partners, board members, housing tenants and even purchasers of guns. Here’s a list of the latest 10 ten trends for 2013 complied by First Contact HR.

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How to Conduct a Proper Employment Background Check [Infographic]

Employers today know all too well the importance of conducting a background check on new hires. Their reasons however may vary as to why they perform background checks. In our recent infographic on “Why You Need to Background Check,” we graphically illustrated some of the reasons for background screening.

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City of Newark to Implement EEOC Suggestions on Criminal Background Checks

A recent ordinance has been passed that will change the way most employers in Newark, New Jersey are allowed to use and conduct criminal background searches on applicants. Effective November 18th 2012, the ordinance will have a significant impact on the process of hiring new employees for all employers of five or more people that do business in, employ in, or take applications from, the city of Newark.

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Why You Need To Background Check [Infographic]

Your new potential hire has just left your office following a final interview. You feel great about their attitude and they appear to have the pedigree of a top candidate. They have all the signs for success: a resume full of great experience, stories about converting tough clients, and the charisma/charm and character you’ve only ever read about in hiring books.

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Accuracy in Employee Background Checks is Cited as Priority by NAPBS in 2013

The National Association of Professional Background Screeners (NAPBS) released 5 tips for conducting effective employee background checks in 2013.

The Association’s guidance is targeted to all employers that utilize employment background checks to vet employees for job opportunities. Company roles in human resources, legal compliance, risk management, finance and general management should review the full press release.

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