Request a FREE DemoClient Login

Author Archives: Sheri Lash

The FCRA, Disclosures & Authorizations and Background Checks

Posted on by

Employers seeking background checks on potential or current employees need to be aware of the Fair Credit Reporting Act (FCRA) and its implications for both them and their employees. The FCRA protects the rights of employees and employment candidates during the background check process when completed by a third-party investigator.

There has been an increase in lawsuits against employees for failing to comply with provisions in the FCRA. Employers should make sure that they are complying with the FCRA during every step of the process, especially disclosure and authorization.

Disclosure Before Ordering a Background Check

Among other things, the FCRA requires employers to provide the applicant with a “clear and conspicuous disclosure” that such a background check, also known as a consumer report, may be obtained for employment purposes. This disclosure must be “in a document that consists solely of the disclosure.” There are only a few permissible additions to this document, mainly consisting of the individual’s signed authorization.

This disclosure must include such information as the background check agency’s name, address, and telephone number; a description of the nature and scope of the background check reports to be ordered, and it should meet all other requirements specified by applicable state or local law.

Issues of Disclosure

The FCRA dictates that the disclosure from a background check must also “stand alone.” This means that it should not be combined with, or even stapled to, an application or other document. The disclosure cannot contain any extraneous information. The most common extraneous information inserted into background checks is a release of liability.

The extraneous language in background check disclosure notifications has itself been the source of many new lawsuits.

While the FCRA is federal law, individual states may have additional requirements for background check disclosures. Employers should check with employment law attorneys in order to assure compliance with any state-required disclosures.

Issues of Authorization

Employers must also obtain authorization, either in writing or by electronic means, from the applicant prior to obtaining the background check report. This authorization form must have wording that is exclusive to the sole purpose of the company’s intent to perform a background check. It cannot be combined with a liability waiver, “at will” language, state law disclosure, or any other language. It must also contain the definition of “consumer report” and state specifically what types of information will be collected about the applicant.

The authorization form also cannot include a question, including a check box, asking about the applicant’s criminal history. This question has also been deemed to fall under “extraneous” information and is not permitted by the FCRA. Such questions may also violate state or local law.

Companies that also use investigative consumer reports are required to provide an additional disclosure specifically about the investigative consumer report. This must be separate from the original disclosure form. Companies should also be sure to check with employment lawyers in order to ensure that they include any state-specific disclosures.

Protection for Companies and Employees

The growing number of lawsuits centered around employers’ failure to comply with the FCRA means employers should be careful during the hiring process to follow all federal, state, and local regulations. Accurate disclosure and authorization are parts of the process and employers should be sure not to gloss over them with improper authorization forms or illegal disclosure.

Working with a third-party service for background checks is a way for a company to show that the hiring process is not biased. Following FCRA disclosure and authorization practices helps protects the rights of potential employees while also ensuring that companies do not leave themselves open to lawsuits.

Hiring Engaged Employees: An Investment

Posted on by
Hiring Engaged Employees: An Investment

The pressure is on during the hiring process to single out the best future employee. Your company wants to be sure that any new employees are skilled enough to complete the required tasks, but whether or not someone will be a good fit for your company and current employees goes beyond the resume.

Many companies think to offer skills tests or employ background checks in order to assure themselves that potential hires are indeed capable of doing the work required. Aptitude testing, especially for engagement, is another key step toward choosing your company’s best fit and investing in future growth.

More Than Just Employee Satisfaction

Employee engagement is a measurement of how passionately employees feel about their jobs. The more passionate an employee is, the more committed they will be to your organization and the more effort they will put into their work. High employee engagement increases worker output and the quality of that output, while also extending the length of time an employee will remain at the job, decreasing worker turnover.

Employee engagement is not synonymous with employee satisfaction. Employee satisfaction measures how content employees are without addressing questions of motivation, involvement, or emotional commitment. An employee might be satisfied doing minimal work and collecting a paycheck, and increasing employee satisfaction will not necessarily lead to increased performance.

Engaged employees, however, are far more likely to be top performers. They will embrace change, search out ways to continually improve, and challenge the status quo in ways that will push your company forward. Engaged employees also expect all others to be just as invested, increasing workplace accountability and encouraging others to also increase their engagement.

The Value of Employee Engagement

True employee engagement goes beyond once-a-month teambuilding exercises and truly drives performance. Engaged employees are able to understand their tasks within the frame of the entire company, knowing exactly how they fit and how their role supports the bigger picture. Engaged workforces outperform their competition, boasting higher earnings and quicker recoveries after setbacks.

Employee engagement is a key indicator for growth and innovation. In a world where the mobile professional has become more common, employee engagement can help companies retain top talent. Companies concerned with investing in employee engagement are more likely not just to retain their top employees, but also to attract new talent and continue to grow.

Since employee engagement is so important to the longevity and success of a company, how can employers screen for engagement during the hiring process in order to help choose the most successful candidate?

Integrity/Aptitude Testing

Many companies now include aptitude testing as part of the hiring process in order to bolster the candidates’ documents, interviews, and background checks. There are a wide variety of aptitude tests available, with different focuses and different formats, so you should be sure to choose the test that is the best fit for your company. Consult with your background screening company to explain your specific needs.

Aptitude tests are the best predictor of work performance, above and beyond an applicant’s past experience or interview ability. Since employee engagement is such a strong predictor of a company’s success and retention, it makes sense to use an aptitude test to determine the engagement of potential employees in order to hire the best fit. An engaged employee increases the value and resilience of a company, making an aptitude test a solid investment in the company’s future.

Using Personality Assessments During the Hiring Process

Posted on by

Personality assessments can be useful for HR to help streamline the hiring process. These are not the same personality tests getting clicks on social media, but directed assessments with the purpose of identifying potential employee’s behaviors, attitudes, and beliefs. The results of these assessments evaluate whether a potential hire will be a good fit for your workplace.

Five years ago, as many as 60% of workers were asked to take workplace assessments, turning them into a $500-million-a-year industry – which is still growing. Over a quarter of major incorporations include personality assessments when they evaluate candidates. What should your company consider when it comes to choosing and using personality assessments?

Quality

There are thousands of personality assessments available. It is important to be sure that HR considers them carefully in order to select the assessment that best fits their company. Some lower-quality assessments also run the risk of getting a company in legal trouble, so selection is important in order to ensure a test of value. The chosen test should be in compliance with all federal guidelines, and available in multiple languages.

A quality personality assessment measures stable traits that will not change over time, providing employers with an idea of what they can expect from a potential employee. The scores provided should be normative, comparing one applicant’s results against others, and the test should provide a “candidness” scale to indicate how likely it is that the results accurately portray the test-taker. A quality assessment will also have high reliability and be shown to be a valid predictor of job performance. Choosing an assessment that is the result of all this background research means the results will be more helpful in choosing the best candidates.

Accuracy

Higher-quality personality assessments have been tested in order to ensure the accuracy of their results. Assessments which are based on the popular Five Factor Model have had the most scrutiny from outside researchers. This model looks for a potential hire’s openness to experience, conscientiousness, extroversion, agreeableness, and neuroticism – all important factors when considering teamwork and customer satisfaction.

Choosing a less expensive personality assessment means running the risk of making hiring decisions based on less valid results. Many popular personality tests, such as four-quadrant tests, should not be used during the hiring process, and the increasingly popular Myers-Briggs Type Indicator was never intended for use in the hiring process. HR professionals should avoid using tests that sort people into a small handful of personality styles because the results will be too simplistic and therefore not accurate enough to be useful. Workplaces are also shown to be stronger and more productive when employees fit into a variety of these popular categories, so the personality assessment chosen for the hiring process needs to go beyond this simple sorting.

Use

A personality assessment should never be the sole indicator of whether a potential hire should turn into an employee. The results of a properly chosen and properly administered personality assessment are just one piece of the hiring process. These results alone are not necessarily an indicator that an applicant should not move forward, and the results of a personality assessment should be considered alongside other documentation and measures of the applicant.

Companies should choose the personality assessment that measures the attributes that most closely align with their organization. A properly chosen personality assessment will predict workplace behaviors that can affect sales, customer satisfaction, and employee turnover. If the results are free of bias, they can help companies make more informed decisions about potential hires and their likely long-term performance in the workplace.

4th of July Safety

Posted on by

Fourth of July celebrations are the epitome of American summer. Flags, fireworks, picnics, barbeque, and boating are long-standing traditions for many. However, many of these celebrations come with their own risks, making the Fourth of July one of the most dangerous US holidays.

Ensure the safety of you, your coworkers, and your employees by reminding them of these precautions.

Fireworks

Make sure to check that fireworks are legal in your area before buying them. Always use them around plenty of water, keeping a full bucket or a firehose handy in case of a mishap. Always soak fireworks in water before throwing them into the trash.

Adult supervision is needed for all fireworks, including sparklers, which are a leading cause of injury for young children. Never try to relight or pick up a firework that does not seem to have fully ignited. Light only one firework at a time and immediately back away. Do not point fireworks at other people, and keep your own body safe while lighting them.

Fireworks packaged in plain brown paper are generally meant for professional displays and should be avoided. They should not be carried in clothing pockets or shot off from metal or glass containers. Protective safety goggles are recommended as they provide more protection than regular glasses.

The safest way to avoid danger from fireworks is to attend a professional display.

Drinks

The Fourth of July is the American holiday that sees the highest consumption of alcohol. Last year we spent more than one billion dollars on beer and more than half a billion on wine. Although travel for the holiday weekend might be down this year, many people are still expected to go to the beach or lakeshore during their celebrations, adding driving to their celebration plans.

Over 600 people are killed in Fourth of July car crashes each year. In 2017, 237 of those crashes involved a driver with a blood alcohol content of .08 or higher. This was a 23% increase from the previous year. The average cost of a DUI is $10k, not counting lost work from arrests or sentencing. These are all costs that can affect your employees and your business.

Employers already see an increase in employees using sick time before and after holidays, and an arrest for drunk driving would further impact their return to work on Monday. In order to ensure that your employees are able to return to the office and have clear heads, HR can send out reminders about drinking responsibly, including not over-indulging; not operating cars or boats while drinking, and not lighting fireworks while enjoying alcoholic beverages.

Swimming and Boating

Many of the picnics on the Fourth happen at the beach, so make sure to pay attention to water safety. This holiday is the busiest of the boating season, and also therefore the deadliest. Make sure to obey all rules of swimming and boating safety.

Wearing a life vest, not operating under the influence of alcohol, and being aware of other boats will help prevent boating incidents. Be especially wary if this is your first time boating in a new location.

Swimmers should be watched at all times. Drowning can occur in a matter of seconds, especially in children under age five. Educate yourself and other adults about the real-life signs of drowning, which differ from Hollywood’s interpretation. Make sure that children stay within designated swimming areas and do not pass their safe depth. Formal swim lessons can reduce the risk of childhood drowning by 88%, but at least one person should be watching swimmers at all times.

Food

Make sure to also prevent fires around the grill. Never leave it unattended. Gas grills should be checked for leaks and never lit with the lid closed. All grills should be regularly cleaned and always used outdoors. Children should be taught to keep at least three feet away from the grill.

Cold dishes are also an area of concern. Side dishes like coleslaw and potato salad do not mix well with the hot weather. Never leave perishable dishes, especially those containing mayonnaise, sitting out for more than two hours, and always keep them on ice.

This is one of our country’s biggest holidays and, if precautions are in place, there is no reason that you and your employees cannot celebrate. Have a safe and happy Fourth!

The Supreme Court, the LGBTQ Community, and Discrimination

Posted on by

The Supreme Court, the LGBTQ Community, and Discrimination

On Monday, June 15, 2020, the Supreme Court ruled that it is illegal for someone to be fired for being gay, bisexual, or transgender. This decision has a large impact on employers since, prior to this ruling, it was legal in the majority of the United States.

For those who belong to the LGBTQ community or have loved ones who do, this ruling is a major step forward toward equal rights and job security. The impacts for lawmakers and employers are a bit more complicated.

Impacts on the Equality and Fairness for All Acts

Two acts already in process – the Equality Act, which passed the house in May 2019, and the Fairness for All Act, which was introduced in December 2019 – also concern themselves with rights of the LGBTQ community. Both of these acts also involve the protection of religious beliefs and religious rights and therefore are at the center of conflict, especially around the subject of same-sex marriage.

The Supreme Court’s decision last Monday accomplishes part of what these bills were seeking but will also change the conversation surrounding them. Comments from the justices surrounding their ruling suggest that the Supreme Court is concerned with protecting the rights of both the LGBTQ community and religious groups.

The main concern for religious employers is whether or not they feel their own rights are being restricted or dictated based on the rights of other populations.

What This Means for Employers and HR

The Supreme Court Ruling provides clarity about the interpretation of Title VII, shedding light for HR professionals on how they should or should not proceed. Employers who may not have previously needed policies for nondiscrimination based on sexual orientation and gender identity should now revisit their handbooks and specifically, add that wording.

Title VII states that employers may not discriminate against anyone based on color, national origin, race, religion and sex. The new ruling has made it clear that both sexual orientation and gender identity are covered under the ban against sex discrimination. This law applies to employers with 15 or more employees.

The Supreme Court ruled that the language Congress adopted for Title VII was broad enough to be interpreted in this way, although this was likely not in consideration by lawmakers at the time. It is important for employers to note this enforced distinction since those who violate it could face costly legal actions. Employers with fewer than 15 employees still need to follow state and local anti-discrimination laws and should stay on top of any regional changes, as well.

Looking to the Future

As employers and workplaces adjust to this new ruling, it is important to remember that not all questions and concerns have been answered already. Employers may be facing a number of questions about changes in practices and the sustainability of these changes.

As employers across the country adapt to this new ruling, and as laws move through the legislature, changes will surely continue to be made. It is important for employers and HR to remain on top of the continued adaptions to ensure that they do not put themselves in the position of acting illegally.

Marijuana Decriminalization

Posted on by

Virginia Joins the Ranks

On May 21, Virginia Governor Ralph Northam signed legislation to decriminalize simple marijuana possession. The law also prohibits employers from requiring applicants to disclose information surrounding past criminal charges related to marijuana. When the law goes into effect on July 1, more than half of the country will have laws on the books either fully or partially decriminalizing major cannabis offenses.

Previously in Virginia, first offenses of marijuana possession could be met with fines and/or imprisonment up to 30 days. Subsequent offenses could be charged as Class 1 misdemeanors, punishable by up to one year in jail and/or a fine of up to $2,500.

Virginia’s new law changes the punishment of possession of up to one ounce of marijuana to a fine of no more than $25. Convictions for simple possession will also not be reflected in a person’s criminal record. Individuals whose charges are not pursued or otherwise dismissed, or who are acquitted, are allowed to file a petition requesting police and court records related to the charge to be expunged.

Decriminalization and the Hiring Process

In states where marijuana has been decriminalized or legalized, employers and Consumer Reporting Agencies are also faced with changes to their own practices. In Virginia, for example, records related to prior charges for minor marijuana offenses will generally no longer be open to public inspection or disclosure. Virginia law allows only for narrow exceptions related to law enforcement, but not to hiring practices. However, persons found to have been in possession of marijuana while operating a commercial motor vehicle will have that offense added to their driving records.

Employers, agencies, and educational institutions will be prohibited from requiring applicants to disclose any information related to charges of simple marijuana possession. This ruling includes all aspects of the application, interview, hiring, admission, or licensing processes. Anyone guilty of willfully violating these provisions will also be guilty of a Class 1 misdemeanor for each violation.

Legislation Protecting Employees

Some states have gone further than just decriminalizing marijuana and have passed laws or established policies protecting the rights of employees who use it.

Employers in Pennsylvania cannot fire, threaten, refuse to hire, or otherwise discriminate against an employee based solely on that employee’s certified marijuana use.

Nevada passed a law that became effective on January 1, 2020, prohibiting employers from refusing to hire prospective employees who test positive for marijuana.

Connecticut, New Jersey, and Maine likewise have laws protecting employees who use marijuana.

Employers in states where marijuana has become decriminalized or legal have had to revisit and revise their policies around both marijuana and testing for it. While some employers have adopted zero-tolerance stances, others have relaxed their testing requirements.

Changes for HR

Because cannabis laws can vary between states and countries, anyone involved in background checks, drug testing, or the hiring process needs to stay on top of changes and legal consequences for requesting related information. HR needs continued training, and employee policies should be updated as laws change so that employers can be assured that they are not breaking the law. Companies also need to be aware of what information can and will be revealed in background checks so they know what to expect in those reports and what can no longer be revealed.

Changing state and regional laws and policies in relation to previously-criminalized activity has far-reaching consequences for employers and their relationships with their employees. Policy changes are necessary in order to keep businesses aligned with these updates, and HR is on the front lines for enforcing new practices and procedures in order to continue to keep the hiring and employment processes current.

The HEROES Act and Consumer Reporting Agencies

Posted on by

On May 15, 2020, the US House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions Act, or the HEROES Act. This act seeks to amend the Fair Credit Reporting Act (FCRA) with the goal of aiding struggling consumers. Although well-intentioned, there are multiple consequences on the horizon if the currently proposed act is made into law.

First, the bill seeks to prohibit Consumer Reporting Agencies (CRA) from reporting any adverse information that occurred during a “major disaster” as declared by the President. Only information related to a felony criminal conviction could be mentioned in a consumer report during such a period. The proposed act does not clarify how CRA’s are meant to identify whether adverse information was a direct result of the declared “major disaster” and there is no identified procedure for such a determination. Since most actions have multiple root causes, it is unclear how CRA’s could be positive that a missed payment or default was a direct outcome of the “major disaster”.

Second, the HEROES Act would require the Consumer Financial Protection Bureau (CFPB) to create a website for consumers to self-report their economic hardship and identify the cause as the “major disaster”. CRA’s would then be required to check this website on a weekly basis and amend their own records accordingly, deleting the adverse items so identified. However, the proposed reporting does not directly align with CRA records, and CRA’s would still not be able to fully conclude which adverse items were directly caused by the “major disaster.” Further, consumers would not be required to provide documentation supporting their claims.

Third, CRA’s will be faced with the problematic possibility of indirectly reporting adverse information. Rather than directly stating that a consumer missed certain payments, the record would show gaps during those months, indicating payments were missed. An incomplete record would be tantamount to reporting of adverse information and leave creditors to fill in the blanks on their own.

Fourth, if CRA’s are not allowed to notify debt collectors of bankruptcy that arises as a cause of a “major disaster”, debt collectors may run afoul of the Fair Debt Collections Practices Act or the bankruptcy injunction under the Bankruptcy Code. The impact goes beyond the work of CRAs and has more wide-reaching impacts than the HEROES Act recognizes.

Finally, creditors would find themselves unable to make an accurate determination of risk because of the incomplete records they would receive. CRA’s would be unable to provide detailed credit information regarding consumers, and creditors would be forced to draw negative conclusions about any gaps in the information provided. Creditors might, therefore, increase the cost of obtaining credit.

The HEROES Act would make compliance with the FCRA virtually impossible, a situation that would lead to untold lawsuits. Since one predicted consequence of this bill is an increased cost of obtaining credit, the bill could actually end up hurting the very people it intends to help.

The Senate is not expected to issue its own iteration of the bill until June, and we can only hope that they reject it in its current form and that the revised form removes the proposed amendments to FCRA.

Regulatory Requirements for Reopening a Business in Michigan

Posted on by

Following Governor Gretchen Whitmer’s recent executive order on May 19, Michigan is starting to open back up. As businesses look to reopen after almost three months of the shutdown, there are a number of new requirements to keep in mind.

Businesses should introduce daily self-screening protocols for their employees, including the use of a questionnaire. Sanitation and social distancing practices should continue. This includes providing all employees with non-medical-grade face coverings and making cleaning and sanitizing supplies available to all employees.

Further, businesses need to designate at least one COVID-19 control supervisor. A COVID-19 supervisor must remain on-site at all times when employees are on-site. Supervisors have the responsibility of implementing, monitoring and reporting on the COVID-19 preparedness and response plans formed by the business.

All employees will need training that covers, at a bare minimum: workplace infection-control practices; the use of personal protective equipment; reporting on unsafe work conditions; and the process for notifying employers of any symptoms of COVID-19, suspected symptoms, or confirmed diagnosis.

Business-related travel should be limited to essential trips only. Employers should encourage employees to use hand sanitizer when using public transportation.

Businesses need to adopt reasonable infection-control measures in light of the work performed on-site and the region’s rate of infection. Protocols must be determined in case the facility needs to be disinfected in the event of a positive COVID-19 case in the workplace. Plans should be formed in advance so that all employees know the process for dealing with confirmed infection, including protocols for sending employees home and temperature closures to allow for deep cleaning.

When an employee receives a positive COVID-19 diagnosis, within the first 24 hours businesses should notify the local public health department and any coworkers, contractors, or suppliers who may have come into contact with that person.

Employers are required to maintain records of their COVID-19 trainings, daily self-screenings, and any notifications to local public health departments, employees, contractors, or suppliers as detailed above.

Specific businesses have further specialized requirements along with complying with the above.

Outdoor work:

Businesses whose work is primarily performed outdoors also have restrictions. The order prohibits gatherings of any size in which people cannot maintain a six-foot distance. In-person interactions with clients and patrons must be limited to the maximum extent possible. Employers need to provide and require the use of personal protective equipment such as gloves, goggles, face shields, or other face coverings appropriate to the activity being performed. Businesses need to adopt policies to limit the sharing of tools and equipment to the maximum extent possible and oversee frequent, thorough disinfection of tools, equipment, and frequently touched surfaces.

Manufacturing:

All manufacturers must train employees on how COVID-19 is transmitted. This includes the distance the virus can travel in the air and the amount of time it remains viable, both in the air and on surfaces. Manufacturers must also train employees in the proper use of personal protective equipment.

Retail:

Retail stores opening for in-store shopping must create signs or pamphlets informing customers of the changes to store practices and explain what precautions the store is taking to prevent the spread of infection. This includes signage at the entrances instructing customers of their legal obligation to wear a face covering. The in-store space should be designed to encourage employees and customers to maintain a six-foot distance, and physical barriers should be installed at checkout as appropriate. Stores need to establish enhanced cleaning and sanitizing procedures and train all employees on cleaning procedures, as well as how to manage symptomatic customers who enter the store. Employers will need to notify employees if an asymptomatic individual has entered the store, including customers or suppliers. Staffing should be limited to the minimum number necessary for operation.

Office Spaces:

Offices that reopen must assign dedicated entry points for employees and provide visual indicators of appropriate spacing at all anticipated points of congestion. When possible, congestion should be mitigated through policies such as staggered start times. Face coverings should be required within shared spaces, and workspaces should be distanced and staggered as much as possible. High-touch surfaces should be constantly disinfected with sanitizing equipment available to employees, and public water fountains should be turned off. All non-essential visits should be suspended.

Restaurants:

Restaurants and bars that reopen need to limit capacity to 50% of their normal seating and require six feet of separation between parties. Customers should be provided with pamphlets informing them of these new practices and should be asked to wait in their cars for their table to be called rather than congregating inside. All self-serve food and drink options should be closed. Hosts and servers should be required to wear masks in the dining area. Employees should be trained on what to do if an asymptomatic customer enters.

Any challenge to penalties imposed by a department enforcing the regulations set forth in the first order establishing reopening requirements will proceed through the same administrative review process as any challenge to a penalty imposed by the department or agency for a violation of its rules. Further, any business or operation that violates a rule set forth in the Order has “failed to provide a place of employment that is free from recognized hazards that are causing or are likely to cause, death or serious physical harm to an employee” within the meaning of Michigan Occupational Safety and Health Act, MCL 408.1011.

In regard to the Order reopening Regions 6 and 8, any willful violation of the Order is a misdemeanor offense pursuant to the Emergency Powers of Governor, MCL 10.33, and Emergency Management Act, MCL 30.405.