Video: Closing the Gaps: Getting the Most Out of Your Screening Program | Duration: 3424s | Summary: Closing the Gaps: Getting the Most Out of Your Screening Program

Transcript for "Closing the Gaps: Getting the Most Out of Your Screening Program": Thank you all for joining us for today's presentation on securing your workforce, what employers must know about background checks. My name is Christine Redko, and I'm a client account executive here at Shield Screening. As we allow a few more people to join, I'm going to cover some housekeeping items. We will have a q and a session at the end of this presentation. As our speaker goes through the presentation, if you have any questions or want additional information on a topic, please type them into the q and a section on the right hand side of your control panel. I will bring those up at the end of the presentation. Just a reminder, this webinar is being recorded, and we will send out a link to the recording so you can watch it on demand. That link will be shareable. So if you think this information would be beneficial to someone within or outside of your organization, please pass it along. Shield Screening is an HRCI recertification provider, and this presentation is approved for 1 hour of general HR credit. We will send a follow-up email with a certificate of completion and the HRCI program number by Friday, along with a recording of the presentation. Okay. Now that we've got those items out of the way, I will turn it over to Vu Do, vice president of compliance with Shield Screening. Take it away, Vu Do. Thank you, Christine. Hi, everyone. It's great to be with you this afternoon. I am excited about the hour before us talking about one of my favorite topics, background screening compliance. I'm sure one of your very own as well. As Christine mentioned, we are colleagues. We are we've been in the background screening space for many years now. For me personally, over 2 decades now, and and much of that time working closely with employers, helping them navigate the complexities of background checks. And so with the hour before us, we'll get started. There's a lot to cover. But before we do that, just a quick and friendly reminder that that the information we're gonna be sharing and discussing today is provided to you strictly for informational and educational purposes and not, as legal advice. So we highly encourage you to work with qualified counsel who specialize in this area to help you navigate your many responsibilities. And with that, let's get started. Before I dive into the agenda, just a quick reminder reset about our topic today. So today, we're gonna cover securing your workforce, what employers must know about background checks. Obviously, securing your workforce includes running background checks so that you can make an informed hiring decision decision. And you wanna do that for security purposes, for safety purposes, also for liability, wanting to offset that because whether through insurance or risk mitigation. But more importantly, sometimes what employers fail to consider is that the risks that their organizations face result from their, potentially, lack of understanding for their compliance obligations. So today, we wanna focus on the areas that have key areas of responsibilities for employers, first and foremost being the Fair Credit Reporting Act. We'll go over those explicit responsibilities in that primary section, and then I'll cover at a high level, Ban the Box and Fair Chance Act and explain those policies to you so that you can help understand, 1, whether it applies to you and then how you would work with counsel to help navigate those responsibilities. We'll also touch upon what the EOC has to say about how employers can and should use conviction records and maybe even arrest records. We'll get to that section. And then sort of the bonus section we have before us is adjudication. This, I think, probably applies primarily to large employers, but I think there's a lot to be learned in terms of what model works best for employers as they navigate some of those challenges. And then we'll wrap up our session with a question and answer portion, and and help get to any of the questions that you may have. So with that, we'll get started. But before we do, just to whet our appetites as we jump into all things background screening compliance, let's take about 10 seconds or so and answer this following poll question. True or false? Employers can conduct background checks at any time during the employment process. So what do you think? Take a second or so to respond to the poll, whether or not you believe that employers can conduct background checks at any time during the employment process. We've got some respondents, and I'll give it another 5 or 10 seconds before we do that. Maybe if you can navigate that on your dashboard. Okay. So let's take a look at how we did. I'm seeing that we have more respondents saying false, and the answer would be true. If an employer has obtained proper consent, employers can run background checks throughout the course of employment. We'll get into the details of that shortly when we come to that slide, but good job, everyone. Thanks for participating with that quick poll. Okay. So now we're gonna jump into what is the FCRA, what's the Fair Credit Reporting Act, and how do employers comply with the FCRA. Before I kind of get into the nitty gritty of it, I want to familiarize you with some basic terms that I'm going to be using throughout the presentation today. The first is a consumer report. The FCRA defines what a consumer report is. And while I won't get into the technicalities of that definition, understand that I'll use the term consumer report and background check interchangeably in the hour before us because a background check is a type of consumer report under the FCRA. Also, for purposes of our talk, a background screening company is a type of consumer reporting agency or CRA for short. CRAs are regulated under the FCRA in terms of what work what work we put out, what work product we put out, how we go about our business. Additionally, a consumer is defined under the Fair Credit Reporting Act. For purposes of our talk, a consumer is an applicant or a volunteer or an employee or sometimes an independent contractor. They are, in essence, the subject of a background check report. And then lastly, I'll use the term end user from time to time. And an end user is defined as the entity or person who uses a consumer report to make certain, evaluation purposes, right, for the consumer. And here would be you all, an employer, or an organization who orders and uses background check reports. So now that we are many experts in all things FCRA, let's delve into what the Fair Credit Reporting Act is. At the most basic and fundamental level for purposes of our talk, the FCRA is a federal consumer protection statute. It's been with us since 1970, so for a number of decades now. And as we think about what the FCRA is within the the realm of background screening, think about it this way. A consumer or an applicant or employee is going to have information about them put together a mask, you know, built a report built about them that uses information, and that information is gonna be relied upon by you all, employers or prospective employers. And it's going to decide whether or not they get a job. So the FCRA regulates the fairness of that information. Is it complete? Is it accurate? And it gives and affords certain rights to consumers to say, well, if someone does that, if someone pulls information about you and relies upon that information to make a decision on whether or not you get a job, you need to be told that. You need to be you need to get permission for that to happen. You are also entitled to a copy of that report. And if that information is used against you to deny you a job or reject your application, you need to be given information, for that so that you can look at that that report and review it and then potentially contact the party that provided it. We'll cover all that shortly, but the FCRA protects consumers' rights in in that instance as we talk about background checks for employment purposes. Now you might be thinking, okay, boo. Now we're ready. We're ready to understand all of our obligations. But why should we comply? Well, separate and apart from the fact that it's a federal law and you need to comply as employers, some of the incentives, operate by way of the damages, for violations and liabilities for violations of the Fair Credit Reporting Act, which fall primarily under 2 sections. You can be found, in noncompliance if you are negligent and you don't follow the FCRA or if you're willful in violating the FCRA. And if you are found to be negligently noncompliant, then you could be liable for actual damages in attorney's fees. And what does that look like when we're talking about background checks for employment? So for example, if you deny somebody a job because of the background check and didn't follow the law, arguably, those actual damages could take the form of maybe that person's potential salary, or, any any fees or any any finances they may have incurred. Let's say if they had left their current job, moved, so taking their children out of their school to accept another job that you're offering them, and then that fell through because of some of, you know, some actions that we took. So that that could be under actual damages. Separate and apart from that, potential attorney's fees. Now I think the more concerning of the 2 would be if you were found to be in willful noncompliance or if there was a willful violation of the FCRA. Here, you would be liable for actual damages or statutory damages within the realm of 100 to $1,000 per violation, separate and apart from that, or attorneys fees. And then the most scared of that, it would be uncapped punitive damages. Right? So what that would look like in a class action situation is if you had, you know, the the more class members you had, you would multiply that by a 1,000, and then you would look on tacking on top of that uncapped punitive damages. So that could be a very, very large number. And some of the cases we'll go through shortly point to that very outcome. And that's that's something scary for employers to pay attention and very much an incentive for them to get things right. And then lastly, when it comes to, you know, damages and and also what employers potentially could be, found liable for, criminal charges. So if someone intentionally obtains information, consumer reporting information under false pretenses, They could face criminal charges as well and that means prison time up to 2 years. So employers should understand that. And sometimes in an organization, and I won't disclose more than this, but personally in my 20 or so years in this business, I have encountered in a past organization a situation where one of our clients was unaware that one of their employees was doing this very thing, pulling information, ordering information on, people that that that individual knew, but did not have authorization to pull that in to pull their information. So that could potentially be, very risky for that employer client. So you need to ensure that your people are properly trained, that there's oversight over that. So this is a key area to pay attention to. Okay. So in the next few slides, we'll talk about the various types of obligations for end users when they're using background check reports. We'll talk about the fact that they have to have a legal permissible purpose in the law, that they need to make a proper disclosure. They've got to obtain written consent. They need to make a certification to a background check company that they're ordering their report from. And lastly, that if they use a report to take a negative action against a consumer that is an applicant or employee, that they follow the multi step adverse action process. So now we'll get into each of those individually so you can better understand your obligations under each each of these areas. Now the employment permissible purpose is defined under the Fair Credit Reporting Act section 604 as a purpose for, of evaluating a consumer for employment, promotion, reassignment, or retention as an employee. And when we talk about an employment permissible purpose, I tend to look at this in 2 ways. One is what is the time frame that, you would consider something to be an employment permissible purpose? So don't mistake it for when someone is just technically your employee. It also extends to that preemployment phase when someone is merely an applicant. So what that means is if you're gonna run a background check on an applicant, FCRA applies. If you run a background check on an existing employee, background check applies. And it applies up until the point that they're no longer your employee. So if they're no longer your employee, keep in mind that that employment period ends, you technically no longer have a permissible purpose. So what you can't do is run background checks on someone who was a former employee where you no longer have a permissible purpose. Right? So I think about it from a time frame perspective but also from a scope perspective. Who are the populations, where this would apply? Where running a background check would apply under the employment permissible purpose. Well, the FTC asset will create job applicants. Right? This is the preemployment phase, but also, obviously, current employees. So let's say that you wanna background check on someone that you want to hire. You extend the job offer under conditional, conditional job offer they accept, and they become an employee. And then your maybe your company has a policy for running recurring background checks every year or every 2 years. So those are still, you know, background checks for for employment purposes. So current employees. And then what about volunteers? Volunteers aren't technically employees in the sense that they're not compensated, but the FTC has opined and said that you need to look at this, you know, broadly, and that, you know, it still applies. So it applies to volunteers as well. And FTC, it's one of its opinion letters. It's very explicit to state that, when it comes to nonprofits, even churches, FCRA applies. Same goes for interns and then even potentially independent contractors. So keep in mind that for all those populations, the Fair Credit Reporting Act still applies. Okay. So the next area of responsibility seems really straightforward, but it continues to be a challenge for employers, unfortunately. And here, the Fair Credit Reporting Act says, look. An employer cannot procure or basically order a background check unless the following has happened. It needs to make a proper disclosure, in a clear and conspicuous document that is solely the disclosure, no other document. And it needs to be in a standalone document unencumbered by extraneous information, basically a disclosure by itself. I keep reemphasizing the fact that it's got to be solely a disclosure because this is where employers get into trouble. So you've got the disclosure requirement, then you've got an authorization requirement. So the authorization says in writing, you know, you're given, permission to run a background check and to compute a consumer report. Your authorization is where you would probably want to include some evergreen language which says something to the effect of, you know, during the course of your employment. Right? We talked about that earlier about not just the preemployment phase, but extending until they no longer are employee of yours. You can continue to run background checks. What that means is you don't have to reseek or reobtain authorization each and every time so long as you have that every great language in your authorization, and then you are properly named there too. And you might think, okay. Well, this is really straightforward. Obviously, no. I've got to make the proper disclosure. I get an authorization. What's the big deal? Well, the big deal is for over a decade now, I'd say probably, you know, a dozen years, we continue to see very large class actions settled by employers on the national scale and even on the smaller level. And it's because the the requirement is so technical, and it's also very straightforward. Right? If you get it wrong, then you get it wrong. You know, earlier this year, we saw 2 cases, 2 class actions settled out of California. The first is Esparza v Maryland MarketSource, and they settled for just under $1,200,000. The allegation being that, Maryland MarketSource didn't make a proper disclosure. They included other information, other forms in their disclosure, and, that wasn't proper. And the other class action was settled by Salvation Army out of California, and, that was for 1,870,000. And the allegation against Salvation Army is that they included their disclosure in their employment application packet. We've seen this allegation against other employers nationwide in the past. And so you've got to be careful here. Again, make sure it's on a separate document. What that means sometimes, though, is that if you are are appending it, if you are including it in a PDF, and there's a continuity in the pagination, you wanna be careful. You wanna keep that separate. And if you are presenting this information online electronically, that, you know, a a scroll through, a separate screen, you need you need to design in such a way where you can argue and and show and demonstrate that disclosure is on a screen by itself or it's on a form by itself and it's not part of a continuous document. Also the allegation against Salvation Army is that their disclosure contained a liability waiver, so a release of liability. And that's been that has been established by the 9th Circuit. So California included there. It and it would definitely be, you know, argued as a willful violation because in that case, in Syed case, that court has already established that including a liability release would be a willful violation of the Fair Credit Reporting Act. So please, please be careful and work closely with your counsel to review your disclosure form for that. And then lastly, that, that employer failed to provide a summary of rights document as is required. So disclosure, authorization, very important. Keep it separate. Now we get to the end user certification. We just talked about how employers have to make a disclosure and they have to get written consent. What they may not realize is that consent does not have to be given to the consumer reporting agency, meaning you don't have to give it to your background check company. Many times you do. You do give a copy of the consent because that's most logistically, most convenient. So that way, when the background check is being processed, the background check company can give a copy of that signed consent to the party that's requiring it to complete the verification, whether it's a former employer or a school or maybe a court to fulfill, a criminal record search, for instance. But that so while it's not required by law under FCRA, what is required by the FCRA is that you, as the end user, make the following certification. You certify that you have obtained consent, that you did make a proper disclosure, that you are complying with all aspects of the Fair Credit Reporting Act, and that you're not gonna violate EEO laws, in use of this information. So that certification step is essential. And then lastly, we'll talk about your adverse action responsibilities. So up until this point, you have told your consumer, hey, applicant. We might run a background check on you. And then when you actually do run a background check, you get their written permission, and then you review the information. And what about when negative information comes back? What about when there's information that comes back that would lead you to potentially rescind an offer of employment or, put a pause on someone's ability to get promoted within your company or anything other any other adverse action. And here, there's some definition around what constitutes an adverse action. Like I said, it could be rejecting an applicant. It could be resending a conditional drop offer or a reassignment or terminating an existing employee or denying them a promotion. All these things constitute a negative action, and therefore, there's a separate set of responsibilities you're subject to. It's a 2 step process. So the first step would be if any negative information in the report is causing you to reconsider that decision, then you need to take the following steps. You need to issue a written pre adverse action notice that contains very specific information. You need to give that employee route again a copy of their back line check report. The one that you relied upon that contains that negative information so they can see it as well and get a chance to review it. You need to give them a copy of the summary of rights document that is provided by the FTC, and then you need to allow them an amount of time, that's fair that will give them the chance to review the report and contact the background check company to dispute any information that they think could be, incomplete or inaccurate. And, of course, your pre adverse action notification, that notice, contains the contact information of the background check company that prepared their report. So first step is pre adverse. When it comes to that waiting period, while the FTC or rather the FCRA itself is silent on what that waiting period is, the FTC has said, well, 5 days is a reasonable amount of time. So 5 days has been the standard adopted time frame for when you wait between issuing the pre adverse and then potentially taking that second step that we'll talk about shortly. But I wanna pause here and talk about what happens when you give somebody a pre adverse form and that applicant then decides to dispute. So if they decide to dispute and they're following the instructions of the pre adverse form, then they're going to contact the background check company that made the report, and they're gonna tell them, hey. I wanna dispute this information. It's not correct. What your background check company will do is then contact you and say, hey. Let's put a pause on your decision. Let's stop the clock, if you will, and then allow us the chance to fulfill our legal duty, which is to conduct a reinvestigation. The background check company has 30 days to complete it. Shield and pretty much every other background check company wants to complete it as quick as quickly as possible and as accurately as possible. It's in our best interest to get you your report back as quickly as possible so that you as employers can make your decision. But importantly, this is affecting the consumer who's waiting on starting their job. So, we want to and all background check companies, generally want to complete it and make sure that it's accurate, and timely. So they'll you'll put a pause on it. And then once that reinvestigation is complete, you'll be notified, and then you'll have a chance to then make your decision based on the updated report. But there could be 2 potential outcomes post reinvestigation. The background check company can potentially affirm their original findings and say, nope. Everything's correct. We're gonna confirm our original findings and, you know, use this information to make your final decision. Or they'll say, okay. We've amended the report. We've made these changes. So please rely on this new report to make your final decision. And if your final decision includes not moving forward, then that would be a final post adverse action step. This is step number 2. And in step number 2, you have to give them a written notice. It can be actually orally or electronically in writing, but, of course, it's highly recommended that you give them something in writing. And it contains very specific information. The notice should tell them and identify, again, who the background check company is with proper contact information. It would tell them and explain that the background check company did not make the hiring decision, and they don't know what's behind it. And a lot of times, for those of us in the CRA world, we consistently have to respond to inquiries from applicants because they think that, we made the decision when, of course, that is in fact not the case. And then lastly, you need to provide some other information in that notice, which lets the consumer know some of their additional rights. Now this is a 2 step process, and it's under the FCRA, which is the federal statute. And we'll talk short in the next few slides about some of the extra steps that may apply beyond the Fair Credit Reporting Act. But you might think, well, the FCRA has been with us for 40 years for more than 40 years. Clearly, employers know what to do, but we're seeing that cases still abound. Walgreens settled earlier this year in Illinois for $2,250,000. This case is a little nuanced because here, you know, the allegation is that Walgreens sent information that may constitute a pre adverse where it was not intended. What do I mean by that? So in this case, the applicants for Walgreens who were rejected, probably something in their in Walgreens' internal system where they place that applicant under a separate status, in their HR IS system or or or their platform, and it said, well, we're gonna reject this candidate because of, post adverse or information in their report. When they placed them in that status and there was a disposition email that was triggered and sent, So that disposition email preceded the applicant's receipt of the official pre adverse. Right? So, again, FCRA says, if you're gonna tell somebody that you may not move forward, give them a pre adverse notice And then wait, let them dispute, and then send the final adverse. But when that disposition email was triggered by the system, arguably, said the plaintiff, that constitutes a pre adverse. So that would be in violation of of the requirements under the pre adverse requirement. In any case, it was settled. All this to say, pay particular attention to your policies and policies. And if need be, work with counsel to review what your process is and what information is getting sent out and and what's included and not included. What's the timing? What's the execution? What is your system doing? What's your software doing? Work with your providers. And so, just, you know, take heed of that and and see if you need to internally scrutinize what your process is. So before I move on to the next session section, quick review. We said under the Fair Credit Reporting Act, right, federal consumer production statute, what do employers need to do? You need to have a permissible purpose. That's employment. That applies to applicants as well as existing employees. It applies to volunteers and interns and employees and independent contractors. You know? It applies. And what applies? Make a proper disclosure. Basically, tell them you're gonna run a background check, get their written permission, give a certification to your background check company. And if negative information comes back in the report, all that 2 step adverse action process. Okay. So now we'll talk in high level overview because this can get complicated. We'll talk about Ban the Box and Fair Chance Law. Just know that there is a proliferation of ban the box and fair chance. Right now we're looking at 37 states, also DC and a 150 other cities. And I don't quite honestly, from the time I put this together, there may be more because weekly we're hearing about, you know, emerging, ban the box and fair chance, acts and ordinances and policies coming into effect. And so, you know, employers need to pay attention if these apply to them in their jurisdictions and what the flavor of that, requirement looks like. If I take a step back and talk to you about the goal of Band A Box, if there are chance, and what it means and basically what it is, it essentially acknowledges that many, many Americans have conviction records. They have criminal history. So we cannot, as a society, exclude from employment everybody with with criminal history, right, because it's just simply not relevant. And we've got to get people reintegrated and back to work. And so these policies are put into effect to help provide greater employment opportunity for individuals who have been, who've touched and who have been part of the criminal justice system and who have criminal history, and it relies upon a number of policies to move them forward. So the ban the box and ban the box refers to that checkbox in an employment application that asks, have you ever been convicted of a crime? And so one of the first things that it does is it can prohibit or restrict employers from inquiring about asking about, criminal history from the outset on the application in an interview. And it typically asks or has employers delay that question until a conditional job offer has been extended. And in some cases, it's so restrictive as to say that employers can't even mention, background checks that they're going to be run. Right? And that would be I'm I'm giving a nod and and thinking about New York City in particular. But so if if any of these ban the box laws apply to you, take a look and understand how they apply to you with respect to the criminal history question. Separate apart from that, there may be restrictions on the types of, and time frames around criminal history the employer can inquire about. So let's say you can't ask about criminal history at the beginning, but when you do ask about it, what can you ask about? Sometimes the restriction is you cannot ask about, you know, this type of criminal history or that type of criminal history, and you can only ask about it within the last 7 years or the last 5 years. So you need to pay attention to what those restrictions are with respect to what you can ask and when you can ask them. And then, additionally, you may be restricted as employer from what type of criminal history you can even consider. So let's say you don't ask about that, but, that information is returned in the background check report or that information may be voluntarily disclosed, unprompted by your applicants, what can you consider? Some of the restrictions say you can't consider things like, misdemeanors of of a certain type within a certain time frame or felonies that are too old. You have to understand what those requirements are specific to band of box or fan channels that may apply to you. Now, another requirement would be that employers have to conduct individualized assessment, thinking about the West Coast in LA or even California. Right? In some some cases, those are those requirements go beyond just conducting an individualized assessment. Sometimes you have to give a copy of that individualized assessment to the applicant. And then lastly, the acquisition process. Some of it extends beyond what the Fair Credit Reporting Act requires. So under the Fair Credit Reporting Act, for example, you have to wait 5 days. Well, in Philadelphia, you need to wait 10 days. So that clock is extended for consumers to be able to dispute and reach back out. Also things like there might be specific language you have to include in the pre adverse or final adverse notice. As I mentioned earlier, you might have to get a copy of the individualized assessment that you're gonna conduct, or you have to, let's say, identify, you know, what specifically what criminal history in the report is the basis for your pre adverse or final adverse, among other responsibilities. So make sure that you get very familiar. And here I have sort of just a high level identification. It's not an exhaustive or comprehensive list by any measure, but it calls out some of the ones with the more onerous, requirements. Of that, I would point to the most recent one coming out of California's or rather Los Angeles County Fair Chance Ordinance, unincorporated areas of LA Counties. That went to effect earlier this month, and that one is very, very burdensome. Employers in the area that fall under these requirements should take a very close look and review their processes, and work closely to ensure that they comply. But if you recognize that you are any in any of these jurisdictions or they may apply to see you as an employer or maybe any of your branches or locations, I urge you to take a look if you're not already in compliance, but to take a look and then to work with your counsel to move forward and understand what those restrictions mean, and then you have to potentially make changes to your policies or your processes. And if you have questions, also work together with your screening provider, to help understand how you can meet those obligations. Okay? Now so we've covered so far what the federal SCRA says about how employers have to use background checks, what they can and cannot do. We have talked high level about whether or not Ban the Box or the Fan Chance Act may apply to you. Now what does the EEOC, the Equal Employment Opportunity Commission, one of the federal agencies, say when it comes to how employers should use conviction records? The EEOC issued its guidance back in 2012, so it's been with us for over a dozen years now. And it said, look, employers. You should not be using arrest information to consider whether or not to move forward with an individual because arrest information is not reliable. You should consider convictions. And if you do consider conviction records, you should do so within a certain parameter and take the following actions. Now the be I wanna be clear. The EEOC does not say you cannot consider, It says that you can consider the facts underlying an arrest, and that may be important for some of you who work with specifically vulnerable populations where you could argue and justify your use or your consideration of the that arresting information because you work with those vulnerable populations. But, of course, that's for your organization to decide, but I wanna point that out. In its enforcement guidance, the EUC says, look, employers. You should not be instituting any blanket bans, meaning you should not have a policy that says we do not hire felons. We do not hire anybody with, felonies over, within the last 7 years, or we do not like, no outright bans. No red frontline policies, if you will. And then the EOC goes on to to explain its position on disparate impact. And I'll take a moment to read this for you, and we'll go over it together. And you can, of course, revisit or research it on your own, and I highly encourage that. But the EEOC takes the position that criminal record exclusions have a disparate impact. Meaning, if you employ a facially neutral policy, a policy that says, hey. We run a background check on everybody, and we do so universally. But because African Americans and Latino men and Hispanic men are incarcerated and arrested at a disproportionately higher rate than general population, the EEOC argues that your sort of generic or general or facially neutral policy would still have an adverse impact or disparate impact rather on those populations. So in order for you to, you know, escape sort of claims that you are violating title 7, then you need to do the following things, like conduct an individualized assessment. So what is an individualized assessment? That essentially is an exercise that you engage in to determine is this criminal history, is there a nexus between the criminal history, and the position sought or held? And can I use it relative to what I'm considering this person for? What that would mean is when you get the criminal history back on the background check report, you assess, what's the nature and seriousness or gravity of the crime? Is it a petty theft crime? Is it a murder? Is it a homicide? Is it a shoplifting crime? How how old is this crime? What's the time elapsed since it happened? Is it 25 years old? Is it 2 years old? Right? Different impacts, different consideration. What's the nature of the job at hand? So what what position is being sought or held? If you have somebody who has a DUI from 20 years ago, is that relevant to them getting a job as a cashier in a grocery store? Arguably not. Right? And so I'm using a very extreme example that's straightforward. Sometimes organizations find it very, very challenging because it's arguable what some of these things are. But all this is so you've got to have a policy. You've got to have a policy in place, your screening policy, that that outlines and identifies these categories of offenses or crimes and the positions throughout your organization to create some sort of, navigable plan where you know how to respond to, your assessment of certain information that comes back on reports. Now in conducting your individualized assessment, what should it include? It should include notice to the individual to say this information about you came back and afford them the opportunity to, beyond disputing it, maybe prove to you why they don't think it's relevant, maybe make a case for themselves by providing information about their rehabilitation efforts or to show you evidence or proof of how consistent they've been performing for the last x amount of time in a certain role. So it it what it does essentially is it opens a conversation and allows you to engage that individual who's gonna be your potential employee to talk about how they're still qualified despite criminal history. And so that's something to keep in mind if you haven't already looked at the EOC's enforcement guidance. Okay? And you'll see that once the guidance was issued, that individualized assessment was adopted, in different flavors of fair chance and ban the box. And we talked about how we see that out in California and other jurisdictions. Is this still relevant? Yes. It is. EOC took took action against an employer earlier this year. Sheetz, you may know them. They are chain and convenience stores. They are in 6 states, and they have, 600 locations or or more than 600 locations rather. And the EEOC alleged that when in their hiring practice and their screening practices, even though the policy looked neutral on its face, the effect was that it excluded, a very distinct, you know, dynamic of the population. Basically, there was greater impact, disproportionately screened out, native Americans and African Americans and, Alaska natives and other multiracial applicants. And so the EEOC alleged that this conduct violates title 7 because title 7 would mean that conduct it prohibits facial neutral employment practices that cause a discriminatory impact. And so we would read read readably between the lines, excuse me, and probably there was not an individualized assessment, conducted by sheets. And so here's another area to say, and this recent action tells us that the EOC is constantly taking a look at particularly large employers where there is greater impact to consumers. So, another reason for us to pay attention. Okay. And I'm looking at the time just to make sure. I think I'm moving along okay. This last area before we get into our q and a is adjudication considerations. Now for those of you who may not be familiar with the term, when I say adjudication, I'm referring to, a practice whereby, and this is probably particularly truer for larger employers who need some help, but they engage in a process of whether filtering or flagging or identifying, reviewing reports, macro check reports, so that they know how to take, a final apply final status or an action to that report. Meaning, do I move forward with this individual? Do I rereview their record or report, or do I reject this applicant? And for employers who deal with a lot of applicants, they may lean on and rely upon a partnership with their background shot company. Now, the the use of an adjudication service or a flagging service can present some challenges and risks to both organizations because understand that the background track background check company treats this as, an administrative task. A service whereby at the direction of their clients, their employer clients, they are applying a certain filter or, an adjudication flag. What they are not doing is taking the hiring metrics and making hiring decisions. They are not defying or considering themselves to be a co employer or an agent of the employer. That's critical because that's a different difference in the liabilities. Right? And they're certainly not that. And how do you, both the bankruptcy company and that employer, you know, avoid being determined or or deemed a co employer? And among other things, how do you has an employer prove and demonstrate that they are fair in their assessment of background check results? Because what I wanna make clear is employers have an obligation and should be looking at each and every background check report result to make decisions. So with that understanding of adjudication, we all wanna talk 1st and foremost about the model for adjudication. It's as a it's a best practice to employ a model whereby employers are saying, okay. Is a background check company green? Green flag, meaning everything is clear, and there's nothing negative or that, falls outside or is and they are concerned, or is there at least one item that should be reviewed? So that model looks like a green flag or a yellow flag, meaning good to go or look at the report and then make a decision. What we don't want to do is adopt a model where there's a green, red, and yellow flag, meaning an outright reject because the screening company maybe is relying on, the matrix by the employer and arguably allowing the employer not even to look at the report. Right? To say, oh, I've already made a decision on your behalf. So that's a very risky model, I think, for both organizations. And so my my second point I would reiterate is review all reports. And you can better demonstrate that by not employing a model that is red, yellow, green, but rather green, yellow, which is I review all reports. And then I make a decision, which takes us to our 3rd bullet point. It's important for the employer to initiate pre and final adverse action following review. Why? Because sometimes in your review, you may find that, oh, well, you know, I wanna make an allowance. I still I may have pre adverse this person, but I I I wanna move forward. You are afforded that flexibility and that latitude when you actually review reports as opposed to pushing through an automated service and there's no review. I I continue to reiterate, look at reports. That's very, very important. Also, there's been litigation in this area. We know that, state's attorneys general, especially in New York, have taken action against both employers or background check companies when they use, an employee label such as reject or disqualify or fail, because, again, the argument here is if it's the background check company putting on this label, they are the ones determining the employment status of the individual, which is not the case. So all this to say that it's important that you take a look at your adjudication model with your screening provider. And then separate apart from all that, if you as an employer are subject to fair chance act, or ban the box or fair chance ordinance that has some complexity around the adverse action process, notably in California, LA, maybe, I'm thinking about Illinois, some other jurisdictions where there's a multi step process, where there are some custom language. Make sure that your adjudication model accommodates for that and works around that and, gives that close consideration. Okay? So quick recap of what we covered today. FCRA obligations, Fair Chance Ban the Box. We talked about EOC enforcement, and their individualized assessment. And then lastly, education models. If you use it, make sure that you're using it properly and employ the best practices. And with that, I'm gonna take a pause. I know I went very, very quickly. Thank you for staying with me, and now I'm going to turn it over to Christine. Thanks, Vu. That was great. I know that was a lot of content for everyone, and I know you've been sending in some questions, so I will get to those in a moment. But before we get to the Q and A session, I wanted to share that our next webinar will be with our shield partner Cerebra on Tuesday, October 29th. The webinar will focus on biometrics in the background screening industry. Really fascinating subject. Additional information will be sent out soon, and we hope to see you there. So I'm gonna start answering the q and a, but partway through, maybe with 2 questions left, I will be launching a short survey for you to complete before the end of the webinar. And I will you'll see that pop up. And thank you in advance for filling that out. Once again, we'll send the HRCI certificate recording, anything else that you need within the next 24 hours. And so I will move over to some of the questions. So I'm gonna go in order of how they came in. And, Vu, you may have answered some of these, but I just wanna clarify just in case, the person didn't hear the answer or it was covered later after they asked the question. The first one is, is this adverse action only relating to credit reporting or all aspects of the background check process? Okay. Thank you. Yes. Good question. It would it's applies to everything in the background check report, including criminal history, which we know historically has been the main driver for employers taking adverse action. So criminal history records. Additionally, anything from employment. So for example, if your company for a position requires that, someone who's gonna be a nurse has completed x number of years under nursing and when you conduct an employment verification and looks like a person never worked there, arguably, it will be an adverse action against them because they didn't meet the required minimum number of years. Right? You have to pre adverse them because what you may find is, oh, there was a mistake made in the employment record. So every aspect of the backbreaking report, if you rely on any part of it to bring you to a negative action, a net risk action against your applicants, yes, you have to, employ the 2 step adverse action process. So good question. The next one that came in is, I am an HR rep on the Navajo Nation. I adjudicate background checks for new hire. Will these policies apply? Policies as far as, It says adjudicate in the question, but, we can follow-up with this, particular question afterwards, because it might be a little bit too low Yeah. Question. Okay. I wanna make sure I I can answer that. Me too. The next one that came in was when requesting pre adverse and adverse action through Shield, what does Shield take care of versus the employer needs to take care of when it comes to letters and notices? Great. So Shield provides, and helps employers meet their obligations under the Fair Credit Reporting Act. So it is a pre adverse action notice with the proper information. It is the correct waiting period where our team is working with you to say, go ahead and send a pre adverse, your past 5 days. We help you navigate the dispute reinvestigation process and then the final adverse. Separate and apart from that, if you have other obligations to which you are subject, you would want to work with your counsel to make sure that your, specific, you know, custom forms meet those as, separate obligations because you might have to do things like append other information or you might have to have a custom form and that's more dynamic. So we can have those conversations separately. But to reiterate, Shield works with you by providing assistance with regard to federal FCRA compliance. And another question just came in. Shield will automatically send the pre adverse action notice. That was a question that was sort of related. Yeah. No. That would not be the case. The employees order the pre adverse because, again, right, my emphasis earlier is you have to review the reports and you have to take the action. Right. Got it. By by order. We can certainly help with the overall process, though. Mhmm. Yes. Okay. There was also a question or a comment about drugs drug testing scheduling. And so, to the user that asked that, I we will address that separately. We can take a look at your drug screening program and your locations and make sure that that scheduling is smoother. So I will skip over that one. Here's a good one. Are there different requirements for international versus domestic background checks? Yes. There could be depending on what those countries may require by way of separate, authorization, separate disclosure. And when it comes to international, there are some nuances with respect to what flavor of international. For the most part, when we talk about international, we're talking about applicants who currently reside in the US but may have formerly lived somewhere else. And so we're running history to determine where they used to live. So that is the flavor of international we're talking about. And for purposes of, how we get that information, what can be included, there may be some differences. But it's an all that depends kind of an answer. Here's a very specific one. An employee completed the background check via shield screening. Next year, I run a Washington State Patrol FBI background check via the Washington State Patrol portal. Do I need to obtain permission from the employee to run the secondary check on the Washington state patrol FBI background check? Okay. So, what I do want to put out there is for purposes of your protection and ours, to the extent that you can. You wanna keep these generic and high level. And if you have very specific questions, you can send those to me directly, and I can help you. If you are a Xyue client, I can help you navigate that. But when when we do these things for you, these are considered consumer reports. Right? So they're subject to the Fair Credit Reporting Act. When you conduct searches yourselves, you may not be subject to the FCRA. So you might have to look at what the requirements are for you when you are conducting those other searches. But, arguably, look at the good set requirements when you're conducting those separate searches. But also keep in mind that it wouldn't necessarily hurt for you to give to get consent from and to give, disclosure to individuals that you're writing information about them. I do wanna be clear though that the FCRA allows for an exception for you not to notify an, an app an employee rather when you are running another report. That could be within an instance where you're conducting an investigation that is sensitive in nature. So in that instance, that's being an exception and it's a carve out exception, so it's not like you can use it as a blanket exception. If you were conducting an an investigation, you didn't wanna tip-off that individual, you could arguably, again, work with counsel, conduct a background check without getting consent in that instance. I'm going to launch the survey now. We have a few more questions, but I'm going to launch the survey. And just feel free to fill that out as we answer these last few questions. So, Vu, this is around annual rechecks. The person had asked if for existing employees that previously completed a background check authorization form, do I need to reobtain authorization to run the background check annually? And I know there are different rules, like, for California versus some of the other states, but what's your general, advice on that question for recheck? Yeah. Yeah. So general very common question. So, generally, when it comes to recheck, so long as the initial authorization that you obtain has the evergreen language, allows you to run other checks throughout the course of employment. Right? As long as the person is still employed, you have the right to obtain, you know, future consumer reports, then then you could do that without getting new consent. That's the general rule. Got it. Okay. There was also a question about the consent form, how long it's valid for. Can you answer that if you haven't already? No. No. No. I think that's a great question, and there's a nuance there. And I get this, and I all sort of break it down because I think when it's phrased that way, it makes me think that there's 2 ways to look at this. There's the everyday way, which was a question we just answered. Right? And and then there is how much is how long is valid for, meaning keep this in mind. Someone applied, responded to a job, a job posting, and then 30 days later, you're gonna run a background check on them. But they already gave you consent 30 days ago. And then let's say that you read a backward check. So, arguably, that consent form still applies. But let's say that they stayed in your queue and you didn't move forward then, and then 6 months or or 8 months has passed and you've said, oh, I wanna reuse this candidate. I think this is another position that opened up and they'd be great, so I'm gonna run a background check on them. You probably wanna get a new consent form from them because they gave permission in response to their, you know, to their interest in that one position. But you want them you wanna give them a chance to revoke consent or to to re consent, if you will. So I think the best practice is if it's over 30 days and you didn't use them when they gave consent and they're an applicant and did not move into the employee phase, to secure a new consent form. Sometimes I think depending on the organization, because we used to work with different types of employers who their onboarding or, sourcing process to look at applicants and then get into the next phase is very protracted, sometimes over a year depending. Sometimes in health care, it's a little different. And so in that instance, I think so long as there is a clear understanding with your applicant that, you know, you may assign the consent 12 months ago, but we're still gonna use it if we need to. But for the most part, I think 30 days is a good best practice. And then I'm going to close the survey now. You'll have 30 seconds to complete it while we ask this last question, so no pressure, but I wanna make sure that we do that. Okay. The final question, Vu, is about Ban the Box and Fair Chance. I know you talked about it a little bit, but how should a company get started with Ban the Box or Fair Chance Act compliance if it's something that's newer to them? Yeah. Great question. It's and it's so important because you're seeing a proliferation of it, and it can be really, really confusing. And employers may just be getting used to FCRA compliance themselves, or they may be experts, but, ban the box of air trans may be a step beyond that. And so what I would say is look at and see within your own jurisdiction where your company is based, where you hire at, where you have locations. See if there are any existing and potentially applicable laws. And that you should work with counsel to say, does this apply to us as an employer, or do we fall under an exception, or is there a reason that this wouldn't apply to us? Are we too small? Is it you know, do we not meet the definition, or are we, you know, a certain type of employer that this doesn't apply to because we're we're otherwise regulated? Maybe. And then beyond that, there is the very real work of saying, okay. What changes do we have to adopt to comply with these things? Do we have to change our application? Probably. Do we have to institute other measures within our our process? Most likely. Do we have to change some of our forms? Potentially. So all those things, and make sure there's a checkbox approach to that and that it's reviewed by counsel and that there's documentation, that there's a policy set up about how you comply with Fair Chance Act or the Fair Chance Ordinance. And then lastly, that you, train your employees in that area and that you keep a record of that training. So I think all those things in totality will help the employer should there ever be an action, or or any litigation in the area because there is, you know, strong evidence of your, you know, desire to comply and all the steps that you took. So I would go about it that way and and encourage you to, again, work with counsel in this area. Well, thank you everyone for attending. We will be sending out the recording, after this session. We will also, be looking at your questions. Anything we didn't answer, we will get to you, or if you need a little bit more information. And, Vu, thank you so much for your time. I know this was a lot of content to cover in a short time, and several of you commented on that as well. But I think when you listen to the recording, it'll some of it will be more clear. And, of course, we're always here as your account team, either through customer service or if you have a dedicated account manager. Do not hesitate to reach out to us, and we will get you the answers that you need and make sure you're compliant and, make your life a little easier. So thank you all for your time. Time. Yep. Yeah. And then lastly, I know there was a comment about a lot of content. So if you would like to give feedback, please do. We'd like to know what other content would be helpful to you or if more detailed com content would be helpful. I'd love to be able to work with you on that. And just thank you so much for your time. Thanks, Christine. Yeah. Thank you. Alright, everyone. Have a great day. Bye, everyone.