Criminal Checks News

This week, the U.S. Equal Employment Opportunity Commission (EEOC) passed new guidance that affects how employers use arrest and conviction records in their employment decisions under Title VII of the Civil Rights Act of 1964.

While it appears the guidance calls for a tighter screening process, employers retain their right to use criminal reports in employment decisions. Employers should review the Enforcement Guidance with their legal counsel to determine how the Enforcement Guidance will impact their background screening programs.

Criminal background checks remain an important part of the pre-employment screening process, to protect the workplace and make better hiring decisions. Some employers are required by state laws to conduct background checks for certain roles (for example, some positions in the health care industry).

To learn more about the Enforcement Guidance, see these useful resources:

Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (The Enforcement Guidance)

EEOC Press release on Enforcement Guidance

EEOC QA on the Enforcement Guidance

Recorded Webinar: Understanding the Nuances of the Updated EEOC Enforcement Guidance

Littler Mendelson, the premier U.S. employment law firm, shares insights on the updated Enforcement Guidance.

Insights that will help you evaluate potential changes to your background screening policies and procedures.

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When an organization addresses medical marijuana in its drug-free workplace policy, it must carefully consider both state and federal regulations. However, regulations vary widely from state to state and often state regulations directly contradict federal law which makes addressing medical marijuana in a drug-free workplace policy complex.

Additionally, employers that have workers in multiple states or operate in a federally regulated industry, face further challenges in including medical marijuana in their drug-free workplace policy.

Today, 16 states allow medical marijuana usage and about a dozen more states have pending legislation regarding its usage. Each state law contains varying restrictions around when marijuana may be used, how it can be obtained, and how much a person can purchase and possess. Some states even have regulations that protect medical marijuana users from employment discrimination.

In order to help mitigate safety, legal and regulatory risks, it is vital for employers to carefully consider how it will address medical marijuana in its drug-free workplace policy. Below are some of the differences between state and federal regulations that may impact an employer’s drug screening program.

1. Illegal Federal Status
Under the Controlled Substances Act, marijuana remains a Schedule I classified drug. This means that even if a state decriminalizes medical marijuana usage, the federal government still considers the possession, prescription or use of the drug as illegal.

In 2009, the Department of Justice (DOJ) issued guidelines to help federal prosecutors handle cases in states with medical marijuana legislation. The guidelines indicated that while marijuana is considered a dangerous drug, individuals with serious illnesses who use it as part of a recommended treatment regimen and comply with existing state law will not be a target for prosecution. There is very little additional recent federal guidance on this

In 2010, Massachusetts lawmakers passed the Criminal Offender Record Information (CORI) reform bill to create more employment opportunities for individuals with prior criminal offenses. The Department of Criminal Justice Information Services (DCJIS) will be rolling out new CORI regulations.

Employers must obtain authorization from applicants before obtaining a CORI report and employers have certain notice obligations before making an adverse decision. An employer must also provide a process for an applicant to correct or respond to CORI findings.

Reports themselves will only include 10 years of past felony information and five years of misdemeanor history with the exception of certain crimes. There will also be a more stringent requirement for an employer to store report findings and account for which individuals have accessed a CORI report.

Several gray areas surrounding the new regulations have left many employers wondering how the new laws will affect their hiring procedures. We’ll review five unanswered questions about the CORI reform law and propose what an employer should consider when implementing changes.

1. How will CORI reform impact data storage?
The proposed regulations change how the actual CORI documents should be stored when a consumer reporting agency (CRA) requests CORI on behalf of an employer. If the proposed regulations are adopted, HireRight would not store a copy of the CORI report on its system. As legislators get closer to finalizing these details, HireRight will provide further information for employers on document storage.

2. What if I perform national, county court or federal criminal searches?
The CORI database only contains information about crimes investigated and prosecuted by the Commonwealth of Massachusetts and does not include information related to federal crimes or crimes committed in other states. Employers conducting national criminal record searches, county court record searches, or both, will

As the workforce of many organizations becomes more globalized, new challenges are created in maintaining an effective and compliant employment background screening program.

Organizations that expand their operations overseas, or utilize workers who have lived, studied, or worked in a foreign country, must ensure that they adapt their background screening policies to address this global workforce, or they may be exposed to security and compliance risks.

As the 2011 HireRight Employment Screening Benchmarking Report illustrates, some of the risks and challenges of global background screening include varying international regulations on employment background screening as well as cultural and social differences in the hiring process.

These challenges can make it difficult for employers to verify identity, criminal record history, education and other background checks that are common practices for U.S-based workers.

To help mitigate the risks of making poor international hiring decisions and falling out of compliance, organizations should evaluate and update their background screening programs to include multi-national background checks. Here are five best practices for a successful global background screening policy.

1. Outline the Existing Background Screening Process
Whether you have one or one hundred workers with an international background, research how the human resources department currently handles background screening for these individuals. If your organization has any offices or uses contractors overseas, then make a list of where each office is located and all of the foreign nations where workers in those locations may have lived, studied or worked previously.

Check with the management team for any plans that might affect a global background screening policy – such as outsourcing or international expansion. This information will help your organization to map out a global background screening policy going forward.

2. Check Employment Screening Regulations in Each Country
For each country where workers have personal, work

Since the passage of the 2010 Massachusetts Criminal Offender Record Information (CORI) reform bill, employers face ongoing changes in their use and access to criminal history information. By enhancing regulations around criminal history checks, the CORI bill aims to create greater employment opportunities for past criminal offenders.

CORI reform affects both regular employers and certain regulated employers, such as schools and long-term care facilities, which are required by law to obtain additional CORI information. Employers that do not abide by new CORI regulations may face steep fines as high as tens of thousands of dollars for each offense.

Below, we’ll review some of the main changes to CORI regulations that employers should be aware of:

Recent Changes
The changes in the CORI reform bill have been phased in over time. Effective November 2010, employers are prohibited from asking a Massachusetts applicant about their criminal history on a job application. Beginning May 4, 2012, access to CORI will change and information will be available through an iCORI website.

Limits on Report Information
The new regulations limit the information that will be available within a CORI report. Now a report will contain pending cases and convictions for 10 years for felony offenses and five years for misdemeanors. Some misdemeanors such as murder, manslaughter and sex offenses will remain on file for longer.

Sealed charges, or charges that are dismissed, resulted in no findings or resulted in a not-guilty decision, will no longer be included in a CORI report. While an individual may request to seal felony charges after 10 years and misdemeanor charges after 5 years, certain sex offenses and other crimes are not eligible for sealing.

New Employer Requirements
As long as an employer follows

Most human resources professionals are familiar with the complexities of managing the Form I-9. From ensuring proper completion of the form to verifying identity documents to proper document retention, the Form I-9 process remains a burdensome process for employers.

Recently, the U.S. Citizenship and Immigration Services (USCIS) estimated that organizations spend approximately one million hours per year managing the Form I-9 process.

To help address the burden of completing the Form I-9 and making other needed updates, the USCIS recently requested public comments on proposed revisions to the Form I-9. Specifically, the USCIS is seeking comment on the following topics:

• Expanded Form I-9 instructions and a revised layout.
• New, optional data fields to collect the employee’s email address and telephone number.
• New data fields to collect the foreign passport number and country of issuance. Only aliens authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.

Public comment on the proposed revisions is open until May 29, 2012. The current version of the Form I-9 expires August 31, 2012. Employers are advised to stay current on changes to the Form I-9, and prepare to update their process when the new version is released.

Ways to Streamline Your I-9 Program
To help alleviate the burden of managing I-9 forms, many employers turn to electronic I-9 systems that are designed to help ensure compliance, eliminate error-prone paper based processes, improve efficiency and streamline manual processes. Learn the nine essential features of an electronic I-9 solution to help streamline your process and reduce the risk of penalties associated with failing to comply with the I-9 regulations.

Free White Paper: Effectively Managing I-9 Employment Eligibility in the Face of

Employers that recently began requiring login credentials for a job candidate’s social media profile has created a firestorm around privacy concerns and the use of social media for pre-employment screening. While these cases bring the use of social media for background screening under the spotlight, studies indicate that a vast majority of organizations do not use social media as part of their screening program.

According to the 2011 HireRight Employment Screening Benchmarking Report, only 11 percent of employers include social media as part of their pre-employment screening program, and evidence is scant that many of those are requiring passwords. Nonetheless, it is critical that employers understand the perils of not only using social networking sites for background screening, but also the practice of requiring access to a job applicant’s private accounts.

Privacy Concerns
The ACLU has weighed in on the issue of requiring job candidates to either provide log-in credentials, “friend” the HR manager or log-in to their account during an interview, calling it an invasion of privacy.

In addition, the EEOC has also stated that they are watching the matter “very closely” and that the topic is being “elevating within the organization,” but the EEOC has not yet provided any guidance.

Increased Exposure to Risk
Employers that search social media profiles could be exposed to personal information (such as race, age, religion, etc.) that is considered a protected class under federal law. In addition, the information that is gleaned from a social media profile could be misinterpreted.

Asking for passwords as a condition of employment is another concern. U.S. Senators Charles Schumer and Richard Blumenthal have asked the Department of Justice to investigate whether asking for login credentials violates federal law, specifically, the Stored Communications