Background checks aren’t just a box to tick—they’re critical to any hiring process

Picture this: a high-profile hire for one of the most important jobs in the world, and nobody bothered to run a background check. That’s reportedly what happened when Trump tapped Pete Hegseth, a Fox News personality and former army officer, as his Secretary of Defense. While the details of the story are unfolding, there are in his past allegations of sexual assault (that Hegseth denies), a settlement payment, and a nondisclosure agreement. 

It’s a striking reminder of something every employer should know: background checks aren’t just a box to tick—they’re critical.

I’m not in Kansas anymore … or ever (an unemployment fraud story)

What's wrong with this photo?

Why “ban the box” doesn’t work for employers or employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Defining (and defending) my role as an attorney: more on the employment of registered sex offenders

On Tuesday, I posted something that I did not imagine would be all that controversial, You just found out you hired a sex offender. Now what? Boy howdy was I wrong.

Over at Workforce.com (which syndicates my blog daily), the post had received (so far) 117 (mostly) alarmingly negative comments.

You just found out you hired a sex offender. Now what?

A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

A cautionary tale on why we background check employees

A cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby, and Corbie Leslie filed a lawsuit against The Scott Fetzer Company (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Everything you want to know about employee polygraph tests

Lie detector tests, have been all over the news lately. Reports suggest that Donald Trump wants to administer these examinations to the entire White House staff to identify the author of the anonymous New York Times op-ed.

There are no laws prohibiting the White House from using polygraphs in this manner. The federal law that regulates their use in the workplace—the Employee Polygraph Protection Act of 1988—does not apply to the government.

For private-sector employers, however, the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.

A cautionary tale about an attempted fraud (updated, 11:25 am)

I was recently the target of a highly sophisticated legal-services fraud. Thankfully, this scam set off my Spidey sense from the beginning, and I did not fall for it. I'm sharing so that others can learn the lengths that some will go to steal from professionals. (My apologies in advance. This post is long, but I think it's worth your time.)

Are you ready for rolling background checks of employees?

Last week, Bloomberg published an article warning businesses to get ready for rolling background checks at work — the practice of running regular background checks of existing workers in addition to the routine pre-employment screening.

I bring this story your attention not only because it's quality information, but also because it happens to quote yours truly (thanks to Mike Sasso for the interview):

Should employers still test for marijuana?

Photo by Michael Fischer from Pexels

Ohio’s medical marijuana program is set to be fully operational by September 2018. Ohio will join 28 other states, and the District of Columbia, in which doctors can legally prescribe marijuana to treat certain medical conditions.

Ohio’s medical marijuana law does not require that employers accommodate employees’ lawful use of medical marijuana. It also permits employers still to maintain drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Yet, with the lawful use of marijuana spreading, employers are asking if it still makes sense to test for it as part of pre-employment drug screenings.

Maternity leave does not guarantee continued employment

By Grand Parc CC BY 2.0 via Wiki Commons

Michelle Bailey worked in the human resources department of Oakwood Healthcare. During her maternity leave, her immediate supervisor and others assumed her responsibilities, and discovered certain deficiencies in how she performed her job.

Discovery of those deficiencies led the supervisor to review Bailey’s qualifications as set forth in her employment application. That review, in turn, uncovered an application Bailey had submitted for a different position at Oakwood two years earlier. A comparison of Bailey’s two resumés on file lead to the conclusion that Bailey had falsified her later application by exaggerating her prior experience and qualifications.

That discovery, coupled with the performance deficiencies, caused Oakwood to terminate Bailey’s employment upon her return from maternity leave.

Ohio introduces employee background check legislation

It’s been a busy couple of months for employers, keeping up with the employment-related legislation popping up in Columbus. First, we had the Employment Law Uniformity Act, then the Pregnancy Reasonable Accommodation Act, next the Family and Medical Leave Insurance Benefits Act, and finally the Medical Marijuana Act.

Next on the docket? Legislation to regulate how employers compile and use certain background information in the hiring process.

John Oliver shares his thoughts on “Ban the Box” #ShouldWeBanTheBox

On September 30, the Ohio House passed the Fair Hiring Act, which would prohibit the State of Ohio from including on any employment application for a state job any question concerning the criminal background of the applicant. The measure is now being considered by Ohio’s Senate, which is separately considering a different bill that would apply the same prohibition to all Ohio employers, public and private.

I’ve previously shared my thoughts on this brand of legislation, known as “Ban the Box.” Short version—I’m not a fan.

An injury without an injury? #SCOTUS, standing, and the Fair Credit Reporting Act.

Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. This case should answer a very important question for employers: Does a plaintiff have standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm? The implications of this case are huge.

It’s not illegal to give a negative job reference, but…

When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

BMW settles EEOC background-check lawsuit for a cool $1.6 mil

Last month, a South Carolina federal judge denied BMW’s attempt to dismiss an EEOC lawsuit which alleged that the company’s criminal background checks for job applicants had a discriminatory disparate impact on African American (opinion here).

In the wake of that decision and looming trial date at the end of this month, BWM and the EEOC have agreed to settle their differences. In exchange for the EEOC’s dismissal of its lawsuit, BMW will pay $1.6 million, and offer employment to 56 of the claimants and up to an additional 90 other African-American applicants identified by the EEOC.

Interesting, Judy Greenwald, at Business Insurance, quotes both BMW and the EEOC, each of which holds a very different opinion on what this settlement has to say about an employer’s use of criminal background checks:

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.”

At the end of the day, the resolution of this case has very little to do with the legality of criminal background checks (and whether they are discriminatory) and everything about two litigants buying off off the risk of a trial on the issue. For now, the safest course of action for employers is to follow the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (at least until the federal courts tells us otherwise).

Is a LinkedIn search subject to the Fair Credit Reporting Act

I’ve written a lot in the past few years about the pros and cons of companies using social media to conduct background checks on applicants and employees (e.g., here and here). One issue I’ve never considered, however, is whether the social media site is a “consumer reporting agency” subject to the Fair Credit Reporting Act, or the information compiled from such searches qualifies as a Consumer Report. The issue is significant, because if the social sites are CRAs, or their information are CRs, then employers who use these sites to conduct background searches are subject to the FCRA’s myriad pre- and post-screening notice, consent, and disclosure requirements.

Recently, a California federal court examined this very issue in Sweet v. LinkedIn Corporation [pdf], and concluded that LinkedIn’s Reference Search function does not render it subject to the FCRA.

Unlike other social sites, LinkedIn maintains a specific tool that helps employers’ reference checks—a premium tool called “Reference Search,” which creates “a list of people who have worked at the same company during the same time period as the member you’d like to learn more about.” More simply, Reference Search generates a list of potential employment references.

In Sweet, a group of unsuccessful job applicants argued that LinkedIn failed to comply with the FCRA in how it operates and maintains “Reference Search.” The court disagreed, concluding that LinkedIn’s Reference Search is not a Consumer Report under the FCRA.

LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference Searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers. The FCPA excludes from the definition of consumer report any “report containing information solely as to transactions or experiences between the consumer and the person making the report.”

In other words, because LinkedIn creates its databases solely from information submitted by its account holders, it falls outside the FCRA’s coverage.

While employers still have EEO concerns with the use of social networks for background checks, this case should give employers some relief, as it appears that the FCRA is one statute they needn’t worry about when using social media to vet candidates or for other employment purposes.

My latest column in Workforce: Absolut Commitment to Checking

In addition to my daily blogging, I also write a monthly column in Workforce Magazine. Here’s my latest from the March edition, discussing the import of the Fair Credit Reporting Act on employment background checks—Absolut Commitment to Checking. Enjoy.

	Look inside >
Absolut Commitment to Checking

FCRA class-action lawsuits should have your attention

In the last month alone, at least three huge national employers (Home Depot, Time Warner, and Michael Stores) have been hit with class action lawsuits alleging that their background screening practices for job applicants violate the Fair Credit Reporting Act.

What is the Fair Credit Reporting Act, and why must you, as an employer, pay attention to it? Thankfully, I have the answers, wrapped up in a tidy one-hour webinar I presented for BackTrack late last month. Enjoy!

EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.