In my previous article, we reviewed The Fair Credit Reporting Act requirements under federal law. Creating a checklist to review background check providers is essential prior to implementing a process or changing vendors. As leaders, we need to ensure legal compliance at the federal, state and local levels related to background checks, while monitoring for ever-evolving legislation.
Below are the 6 areas to consider on a checklist:
- Accreditation: The National Association of Professional Background Screeners (NAPBS) has a certification program. This certification ensures background check providers meet minimum industry standards (written policies, etc.).
- Confirmation of Originally Sourced Information: Companies must confirm all information received from secondary sources prior to reporting to the organization. These companies are pulling millions of records from secondary databases, these databases are not always up-to-date, or records have changed. Ask for information and metrics on sourcing and mistakes.
- Reporting at Match Standards: Currently there is no legally required standard for what is considered a match. “Each CRA sets its own standards. If standards are not high enough, mistakes will occur. For example, since thousands of people have the same first and last name, additional information is required to be sure a criminal record belongs to the applicant:
- At least two primary identifiers (full name, date of birth, drivers license number, Social Security number) must match before reporting.
- All identifiers present both the criminal record and the applicants file must match before reporting.
- Apparent matches are reviewed by trained personnel before reporting.”[i]
- Flexible Reporting: Many organizations do not need every piece of information and all that information will cost us more money, which could add to confusion or biased decision making. Certain companies want to know about specific convictions that relate to job specifies (DUI/DWI & convictions in the past 10-years). Ensure the background check company can and will tailor reporting to the needs of your organization. Make this apart of the RFP process.
- Legal Compliance Expertise: The company must comply with FCRA and a variety of state and local laws, which will include “ban-the-box” legislation. If your organization operates in multiple countries, states and cities, ensure the background check company has legal expertise to meet your requirements and will meet the requirements as the laws change. Ask the questions upfront, trust but verify.
- Litigation History: How many of us ask this question? No litigation history is probably not easy to find, we live in a litigious society and anyone can be sued. There is a difference in technical mistakes and constantly being involved in class-action lawsuits for legal violations. Ask for this information, Google search this information and ask for references or settlement histories. The more information we have, the more informed our decision-making process will be.
Remember “ban-the-box” legislation in the State of Pennsylvania and throughout New York State. These laws will vary, depending on city and location. These are just a few thoughts on generating a checklist and questions to consider prior to selecting a background check provider. Ensure these companies will meet the legal regulations and the needs of your organization. Do not be afraid to ask questions and dig for information. Question information for accuracy before signing a contract with a third-party vendor. Be specific in your requests and needs as an organization. This is risk management and part of the due diligence process. If you are unclear on steps to take, seek guidance. Laws and regulations will continue to change, and they will continue to impact most organizations. More information means more informative decisions!
Department of Labor Rule Change: Regular Rates Requirements
“According to the USDOL, “[t]he proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate.” More specifically, the proposed rule seeks to clarify that employers may exclude the following from an employee’s regular rate of pay:
- The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services
- Payments for unused paid leave, including paid sick leave
- Reimbursed expenses, even if not incurred “solely” for the employer’s benefit
- Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements
- Discretionary bonuses
- Benefit plans, including accident, unemployment, and legal services
- Tuition programs, such as reimbursement programs or repayment of educational debt
The proposed rule also seeks to clarify whether other forms of compensation, such as payment for meal periods and “call-back” pay, must be included in the regular rate of pay.”[ii]
“Previously, the law provided that if an employee had four consecutive hours either between the opening of the polls and the start of his or her shift, or between the end of his or her shift and the closing of the polls, the employee would be deemed to have had sufficient time to vote and was not entitled to paid time off to vote. If the employee did not have this four-hour window of time, the employee was permitted to take up to two hours of paid time off to vote either at the beginning or end of his or her shift…The new law, which is effective immediately, makes several important changes. First, the amount of paid time off that must be granted for voting leave changes from “up to two hours” to “up to three hours…. The new law eliminates this outside limit of ten days and just requires employees to request the paid time off to vote not less than two working days before the date of the election. Finally, and perhaps most significantly, the new law eliminates the presumption that an employee is not entitled to paid time off to vote if he or she has four consecutive hours outside of work time to vote…Exactly which elections qualify for paid leave under this law also remains an open question, but the language of the law is certainly broad enough to support an interpretation that all federal, state, or local elections would be covered. Regardless of the number or type of elections that the law extends to, affected employers must begin to plan for substantial portions of their workforce to make requests to be absent for up to three hours on election days. This will almost certainly mean increased scheduling problems…Finally, the law requires that all employers post a notice of the paid time off to vote law at least ten working days before every election. Although this requirement has not changed in the new law, employers should be sure that their posters and voting leaving policies in their employee handbooks are updated to reflect the changes in the law.”[iii]
“Under the new law, all employees may request up to three hours of paid time off to vote, regardless of their work schedules, as long as the request is made at least two working days prior to the election. The employer may designate that any requested time be taken at the beginning or the end of shift.”[iv]
Update voting policies, postings and handbooks as needed under this change in the law.
NYC Ban on Pre-Employment Testing for Marijuana
On April 9, 2019, the NYC council passed legislation that bans pre-employment testing for marijuana. The bill will take effect a year from enactment. Exceptions to the new rule includes the following; construction workers, police officers, teachers, teacher’s aides, day care center employees, jobs that require supervision or care of patients in a medical, nursing home or group care facility, jobs that have the potential to impact health or safety of employees or members of the public and pre-employment testing required by federal law. Remember the DOT regulations on testing. Continue to monitor for changes on these regulations in the future. Remember, laws start in New York City and slowly work there way to the rest of the state.
Pittsburgh Pregnancy Accommodations for Employees and Partners
“The Pittsburgh City Code already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all the law’s anti-discrimination provisions apply to partners of pregnant workers as well.”[v]
New Jersey Pre-Tax Transportation Benefits Law
“New Jersey employers of at least 20 employees will be required to offer this benefit to employees who are not currently in a collective bargaining agreement…A pre-tax benefit will allow an employee to set aside a certain portion of pre-taxed wages, which could be made available for specified transportation services while reducing the employee’s federal taxable income.”[vi] This law is not scheduled to be effective until March 2020.
As you can see the laws around the country in cities, states and at the federal level continue to impact our organizations. Ensure your policies, postings and handbooks are updated as the law requires. Seek guidance if you are unclear on what to do.
[i] SHRM “Getting Talent Back to Work Toolkit”
[ii] Barclay Damon Email
[iv] SHRM Email
[vi] SHRM Email