The two plaintiffs in the case allege that they were terminated from Domino’s based on undisclosed information in their background checks that was never shared with them by the company.

Domino’s alleged FCRA violations include:

(1)running background checks on employees without proper authorization; and

(2) “systematically” failing to provide employees with copies of their background checks prior to taking adverse employment action against them.

The Court went so far as to rule that the plaintiffs properly alleged that Domino’s violations were “willful.” According to the Court, “Domino’s fail[ed] to show that its interpretation of [FCRA] was ‘not objectively unreasonable.’”

Nichols Caster recently initiated a similar case against Capital One for FCRA violations. In this case, the lawsuit alleges that Capital One’s authorization form is flawed and that Capital One failed to provide copies of the background reports when it used them to take adverse employment actions.

How Can You Avoid FCRA Violations?

When you use consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, you must comply with the Fair Credit Reporting Act (FCRA). The FCRA is enforced by the Federal Trade Association and applies to companies who use third party consumer reporting agencies (background screening companies) to perform their employment background checks.

There are FCRA requirements that must be followed before you get a background check, before you take an adverse action, and after you take an adverse action.

Learn more about these requirements in our recent blog post, “Following FCRA Regulations is Smart for Employers.”

We encourage all employers to carefully review their employment screening policies and programs to ensure their ongoing compliance with the FCRA. Consult both your employment attorney and your background screening company. At Proforma, we offer FCRA compliance support to assist in your ongoing compliance.

We are happy to discuss your employment screening program. Request a free initial consultation today.

The New York Times reported on January 30, 2012 that Anita Collins, age 67, was charged with embezzling more than $1 million over seven years from the archdiocese.

While the Archdiocese does perform background checks on workers today, when Anita Collins was hired 8 years ago, a criminal background check was not performed. As a result they made what can only be described as a very costly mistake. According to the Times story, shortly before she was hired by the Archdiocese, she was on probation after pleading guilty to grand larceny for fraudulent acts performed while acting as a payroll clerk for a staffing agency. The Times goes on to say that prior to this in 1986, she was arrested on multiple counts of forgery, and ultimately convicted of a Class A misdemeanor. Applying for a finance job where there is no background screening requirement, “how Conveeeenient”!

When it comes to hiring workers, ‘faith’ just doesn’t cut it.

Every time we hear a story like this we have to stop and ask ourselves why an organization of any type would fail to check the background of someone who will be trusted with finances. Moreover, we would question the failure to perform some type of background on any worker, regardless of their position, considering employers have a legal ‘duty of care’ in the hiring process. Relying on blind faith, trust, luck, or anything other than facts is a practice that needs to be put to rest once and for all.

Too frequently, it is in hindsight that organizations discover the classic definition of a fraudster is personified by a trusted employee. Furthermore, the case of the church lady points to the broader risk management requirements of organizations that rely on the trustworthiness of people. If money talks, a case like this should have companies running to sign up for employment screening services and to secure the services of a risk management consultant to ensure proper controls are in place to avoid the losses that can occur when the wrong people are placed in a position of trust.

If you are concerned about the people you hire or the financial controls in place at your organization, we invite you to consult with a background screening expert here at Proforma Screening Solutions or with our partners at L&A, a risk management consulting firm.

In our experience, hiring upticks don’t usually arrive in Q1, but this year feels a bit different and we’re starting to think this could be a bigger and longer-lasting upswing. And so you don’t think we’re just overly optimistic, crazy or opportunistically looking for a new blog post , a recent ADP report corroborates our sense, noting a sharp rise in private-sector employment (with several caveats), and the unemployment rate hit a 3-year low in December 2011 according to the DOL.

With all the hoopla and high hopes for economic recovery, we couldn’t help but use this opportunity to suggest that HR and hiring managers make certain their employment screening programs are prepared to handle the demand they could face if this economy goes gangbusters.

3 Steps to Employment Screening Program Survival

How can you be sure your employment screening program will survive even a small uptick in hiring demand?

Automate Like Crazy

In the competition for the most talented, he who hires fastest, often wins the best candidates. If your employment screening process still involves piles of paper, dual entries, and snail mail, it’s time to automate. Your background screening provider should be able to equip you with a secure web-based solution that will integrate with your existing HR software or stand alone and enable you to submit orders, review and store reports, and obtain applicant “wet signatures” using the latest technology. All of this will reduce your time to hire and allow you to get more (and better!) hiring done.

Check Your Compliance

The EEOC has been hot on the tail of employers who rely on outdated or unfair hiring practices. Beyond that, there are many state, local, and federal laws that have changed recently and may impact the way your employment screening process runs. Even without these changes, it’s a good idea to review your program to ensure its ongoing compliance. The more people you hire with the wrong processes in place, the greater your risk of getting involved in a legal quagmire.

Leave it to the Experts

The easiest and safest way to scale your employment screening program is to turn it over to capable experts. A professional background screening company will be on top of changing trends and regulations, and can keep your program on track to ensure you get the full benefits of a well-run background screening program.

Let the experts here at Proforma Screening design and implement a program to help you make better hiring decisions in any economic climate.

Request a Free Consultation

Employers with “unnecessarily broad criminal background check policies” are wise to heed the warning laid out by the EEOC’s recent $3.1 million settlement with Pepsi Beverages. As reported by the Associated Press*, Pepsi was charged with racial discrimination for using criminal background checks to screen out job applicants, even if those applicants were not convicted of a crime.

According to the EEOC, using arrest and conviction records to deny employment can be illegal if it is not clearly job related. That’s because blanket criminal records policies can limit job opportunities for minorities who have disproportionately higher arrest and conviction rates than whites.

While Pepsi maintains that it did not intentionally discriminate (in our experience, most companies — and especially those the likes of Pepsi — do not set out to discriminate), the settlement sends a clear reminder to employers of all sizes about the need to reassess policies and ensure compliance with anti-discrimination laws.

So, What Should Your Employment Criminal Records Policy Look Like?

To avoid discrimination and still benefit from the role of employment screening in building a safer, more productive workforce, here is a summary of basic EEOC guidelines concerning the use of criminal records:

• Know the difference between ‘arrests’ and ‘convictions.’ Don’t assume that someone committed a crime based solely on an arrest record. It’s the convictions that tell the outcome of the arrest.

• Don’t jump to conclusions. Give your applicants a chance to explain the circumstances of an arrest.

• Keep things in perspective. Take into account the nature and seriousness of the arrest or conviction, as well as how long ago it happened. Consider the nature of the job and the risk an individual will present with a given criminal record. Deny employment only if it appears the applicant can’t be trusted to perform the job.

Have questions about your employment screening program?

The team at Proforma Screening Solutions is here to help. Ask a question or request a free initial consultation to discuss your program.

• Organizations compete on the basis of talent. As such, the quality of your hiring decisions has a clear and direct impact on your organization’s ability to compete.
• It’s not enough just to ‘check the box’. Employers are being held to exceedingly high standards when it comes to ensuring the safety of co-workers, customers, and the public at large. Safety begins with the people you hire.
• Regulatory attention around employer hiring practices is growing. Anti-discrimination, data protection, appropriate use of criminal records and credit reports, among other issues must be addressed. The practices of your background screening provider must be sound.

It is these realities, and many others, that make hiring the right people — and having the right processes in place to do so –so vitally important.

Introducing Our Free Background Screening Company Selection Matrix

Your employment screening provider plays a number of essential roles in enabling your organization to compete successfully, mitigate risks, maintain compliance, and build a safer work environment. Your selection should consider criteria around the provider’s background, quality, services offered, customer support, technology, data practices, compliance support, and pricing.

Our free background screening company selection matrix offers you a detailed checklist of 35 criteria you can use to conduct a side-by-side comparison of Proforma Screening Solutions and two or more other vendors.

Download the Background Screening Company Selection Matrix. (Available in Word or PDF)

The people at Call of the Wild suggest (and we agree) that if you recruit the right people, everything else falls nicely into place. On the other hand, hiring the wrong people can damage a large company and destroy a smaller one. A manager’s job, therefore, is to practice “tough love” when it comes to recruitment. Rather than trusting someone at face value or accepting low standards “for fear of upsetting someone” managers need to be ruthless in their selection of the right people.

Jack Welch pointed to three things every new hire must have: Integrity, intelligence, and maturity. These are the very qualities we strive to help clients predict through background screening. By assessing an individual’s past behaviors, credentials, and character hiring managers can make well-informed hiring decisions to drive their organizations to succeed.

Read the Call of the Wild article here.

Listen to Proforma’s president David Lowers speak about the role of risk management in background screening:

To discuss your employment screening program, request a free consultation.

	#1: EEOC Focus on Criminal Background Checks Underscores Importance of a Holistic Approach This article was our #1 most-read in 2010 and 2011 and for good reason: employers today must understand that a holistic background screening approach is vital to the success and overall compliance of your program.
	#2: What Does the Supreme Court ruling in NASA v Nelson Say About Employment Background Checks The case of NASA v Nelson garnered much attention as a unanimous ruling from the Supreme Court found that the federal agency’s background checks are appropriate and do not represent a violation of privacy.
	#3: Does Resume Lying Affect Your Organization? You Betcha. Earning the number 3 spot in 2010 and 2011, this evergreen article points to the underlying issue of ‘trust’ when it comes to what your job applicants are claiming on their resumes.

#4: Should You Use Social Media to Investigate a Job Applicant?

The issue of social media was a hot one in 2011 and this article explores the risks and rewards of using social media to investigate job applicants.

#5: Negligent Hiring or Negligent Retention: Is there really a difference?

In an employment setting, negligent hiring and negligent retention are among the many potential sources of negligence claims. This article explores the difference between negligent hiring and negligent retention to support our contention that there is likely no difference in the duty of care owed by an employer.

#6: Employment Background Checks without Permission? Tisk-Tisk.

As evidenced by a proposed $5.9M settlement fixed to background checks done without permission, this article offers a stark reminder of the need to obtain consent before conducting any type of employment background check.

#7: California SB 909 Requires Consent to Send Personal Information Offshore

California made great strides in protecting sensitive personal information from being offshored without proper disclosures and request for consent.  The dangerous practice of offshoring PII is something we take seriously. Read this article to find out what you should know.

#8: California Bill Seeks to Ban Use of Pre-Employment Credit Checks

In a well-intentioned yet, we would argue, misguided attempt to limit the use of employment credit reports Assemblymember Mendoza of California sought to ban the use of consumer credit reports in the hiring process. This article presents our view of the situation.

#9: Extensive Background Checks Necessary for Positions of Extreme Trust and Influence

The recent story of a Virginia church that mistakenly hired a convicted felon is a shocking example of what can happen when the wrong person is hired. This article explores the need for extensive background checks when hiring people in roles of extreme trust and influence.

#10: Inspector General Releases Report, “Nursing Facilities’ Employment of Individuals with Criminal Convictions”

The Office of Inspector General’s evaluation of Medicare and Medicaid nursing facilities presented findings that are sure to alarm those of us with loved ones residing in any of the 15,728 Medicare-certified nursing facilities across the U.S. This article presents the findings.

This recent EEOC discussion letter targets an employer’s high school diploma requirement as a job qualification standard by suggesting that the requirement may “screen out” an individual who is unable to complete high school because of a learning disability.

As if we needed the EEOC to further demonstrate how out of touch the agency is with the things we need to face up to in this business climate, here they are giving employers yet another potential problem to address.

Background screening, which includes education verifications, is in place to help employers better predict how an individual will perform in a particular job. If an individual is unable to complete high school despite ADA accommodations schools are required to provide, is it not reasonable for an employer to assume that despite reasonable accommodations the individual is also likely to fall short on the job?

To be fair, all of this does circle back to the same old tried-and-true requirements of any employer that uses employment screening to make hiring and retention decisions:

• Ensure you have a clear business necessity. As with any type of background check or screening mechanism there needs to be a clear business necessity behind the screen. One good and common business necessity is the need to build a safe and qualified workforce. Another might be to reduce your hiring risks.
• Make sure the background check is job-related. If you’re requiring a high school diploma for a given position, ask yourself why? What bearing does the diploma have on one’s ability to perform the job in the manner required? You’ve got to be able to make the correlation. If you have a job that requires good reading and writing skills or other problem solving skills, you may be able to prove job-relatedness by requiring a high school diploma.
• Apply the same criteria consistently across all applicants for the same position. In other words, you can’t require a high school diploma for one person but not for another when both are applying for the same job. The criteria need to be consistently applied.

Here is specifically what the EEOC says about requiring a high school diploma, “Even where a challenged qualification standard, test, or other selection criterion (i.e. presence of high school diploma) is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

Ah, yes. It’s a great time to be an employer.

If you believe as we do that employment screening is essential to making better hiring decisions and managing hiring risks, and you want to work with a background screening company that can guide you through the compliance maze, give us a call. We’re here to help you build a better workforce, one good hire at a time.

Request a Free Consultation

Or speak to someone right away by calling (866) 276-6161.

This sad, but certainly not unheard of tale, features a teacher with a checkered past, a district trying to save time and money, and the life of a young girl that will forever be changed.

Had a comprehensive – or even a bit more thorough — background check been performed, it could have easily been discovered that the teacher had a sexual relationship with another student in Michigan prior to being hired in Horry County. This discovery was made when a school resource officer made a simple phone call to the teacher’s previous high school employer.

An Employment Screening Wake Up Call

Employers need to understand what it means to demonstrate a reasonable duty of care and how the cost of negligent hiring – both in tangible and intangible expense — can be far more detrimental than spending a few extra dollars to perform the right background check for the job.

In the case of Horry County Schools, remarks made by school security consultant, Kenneth Trump, are embedded with smart advice to school districts and private employers alike.

Be consistent in your employment screening practices.

A spokesperson for Horry County says that decisions on how far each background check should reach are made on a case by case basis. Trump questions the school district’s ‘trigger’ for digging deeper and says, “You have to dig to find the red flag to dig further…”

Don’t stop at minimum requirements.

Trump says that school districts historically have only done the minimum required under state law. This ‘check the box’ type of approach typically stems from budgetary and time limitations, but when you look at the idea of matching the risks of the position with an adequate background check it’s easy to find cases where the minimum just isn’t enough.

Our favorite quote from Trump:

“It’s doing their due diligence and it’s a cultural change,” he said. “If you’re doing a thorough background check, often it can be those things that are not said by a previous employer that can be as much a red flag as those things that are said.”

If your employment screening program could use a reality check, give us a call. We’re experts in crafting background screening programs that reduce your hiring risks and help you build a better workforce.

Request a Free Employment Screening Consultation Today

One University Chooses Trust Over Background Screening:

According to a recent article in the university’s independent student newspaper, not all student employees undergo background checks due to ‘overwhelming cost and effort’ involved in doing so. While some student employees are screened, many are not; including those handling cash at the university bookstore and those preparing food and operating cash registers for food services. The article also points out that while the campus transportation system will not hire anyone with even a single ticket in their background drivers are allowed to remain employed until they receive more than 2 tickets during their employment period.

“We’ve been very lucky”

The best part of the article, in my mind, is a quote from the bookstore director. He says, “We’ve been very lucky with the people we’ve hired.” And here’s another remarkable quote from the director of food services, “Food Services does everything in their power to provide food for campus in a safe and secure environment.” (He may have wanted to add, well, everything except for background screening our employees.)

What happens when luck runs out?

Now let me ask you this: If you ran a retail shop or a restaurant on a college campus, where there is a real or at least perceived obligation to create a safe environment for students and co-workers, wouldn’t you think background screening employees would be important? Wouldn’t you want to know for sure if someone you’re about to hire has something in their background that would make them unfit for the role?

And what do you think is going to happen if you’re a university director and one of your student employees harms another student? And what if their behavior was something you SHOULD have been able to predict based on something that could have been uncovered with a simple background check? Do you think the parents of the victim are going to be real pleased to hear you say, “we’ve been very lucky with the people we’ve hired?” Um… I don’t think so.

Then there’s that duty of reasonable care.

I think sometimes employers forget that they have an actual legal obligation to take reasonable care in the hiring process. Background screening is one valuable way to demonstrate reasonable care.

Whether hiring a cashier, a driver, a warehouse worker, a sales rep, or a temporary shelf-stocker, the plain truth is that it’s better to spend the average $29 upfront on a basic background check than it is to be sued for negligent hiring after that employee makes a catastrophic or even minor mistake that ends up hurting another person.

When we have a “good feeling” about someone and when we haven’t had any problems in the past, it’s tempting to continue on with the status quo and forgo background screening – especially for those low risk positions. But why take the chance? Unless you just like to gamble. BTW, try getting a gaming license without a background check!

Need help crafting your background screening policy?

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