The Background Buzz, V15, E09 - September 2019

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EDITOR'S MESSAGE Saleki atsa! (general greeting spoken to a group in Esselen language) I am just starting to get caught up from attending the PBSA (formerly…
EDITOR'S MESSAGE Saleki atsa! (general greeting spoken to a group in Esselen language) I am just starting to get caught up from attending the PBSA (formerly NAPBS) conference in San Antonio although I still have a lot of following up to do. The PBSA and IMI Team did another stellar job and put on an outstanding conference. I tip my hat to Melissa Sorenson, Angela Preston. The Board and the entire Global Task Force for doing the work necessary to transform NAPBS into a truly global association – PBSA. Also, the celebration with balloons and champagne was a class act not to mention the overnight transformation of everything NAPBS into PBSA. I hope you had a chance to view the results of our 2019 Employers Background Screening Practices Survey Summary Report which contains some valuable insights for background screening firms to be aware of as they start to develop their strategic focus for 2020. This month’s feature columns include: ClearStar’s ‘For the Public Record’ discusses ‘Putting Analytics to Work for Your Business.’ CONTENT: The Tazwork’s Tech Talk column discusses ‘Mobile Enablement.’ US ARTICLES: Be sure to check out our new Media Release Service (see our ad) that is designed specifically for the Background Screening industry. You no longer need to ‘hope’ that background screening industry professionals Employment and decision-makers will see your message in a press release by one Screening the national services. Our service is targeted to reach more than 2,100 Tenant Screening firms in the background screening industry. It’s the ideal way to make an 1 announcement that you want to be certain is seen by the right people. Infinity & Continuous Contact me directly for more information at 1-949-770-5264 or Screening Legal Issues Our white paper ‘Key Tips in Selecting a Courthouse Researcher’ was Feature Article quickly grabbed up at our booth at the PBSA Conference. If you missed it you can download it here. Tech Talk Drug Screening Do you have new people on your team? Does your Compliance staff and Announcements others that need to stay current on what is happening in the industry receive The Background Buzz? Pass a copy of this edition to them. PRRN Report Subscriptions are free to members of the industry. They can sign up here. We are the ‘Industry News Librarian’ and we want to help them with INTERNATIONAL their information needs. ARTICLES: Thanks for joining us for this edition and in the eternal words of Mr. Global Spock, “dif-tor hehsmusma" (Vulcan for “live long and prosper.”) Canada Barry United Kingdom P.S. Esselen is an extinct language of California, considered by some linguists to be part of the Hokan family of languages. It was spoken in Big Sur, California. IN THIS EDITION U.S. LEGAL WASHINGTON DRUG FOR THE CHALLENGE REPORT SCREENING PUBLIC CHALLENGE RECORD 2 GOLD SPONSOR Your Indispensable Resource For Criminal Records Information CRS is The Authoritative National Resource about criminal record access. CRS tells you WHERE criminal records are located (at both government agencies and vendors), HOW criminal records may be directly accessed, and the ACCURACY and VALUE of a criminal record (which varies by location). Click Here to See The Free Demo. 1. Government Sources 2. Private Sources 3. Dealing With Compliance Issues 4. Enhanced Reference Section For more information Contact Kimberly Sparger at EMPLOYMENT SCREENING Workforce Magazine issues 2019 Hot List for Background Screening Providers The ‘2019 Hot List’ was released in August and features 19 background screening providers. Based on the category ‘Individuals Screened in the Most Recent 12 Months’ the top ten firms were: 1. First Advantage 17.2 million 2. Cisive 5 million 3. Global HR Research 4 million 4. CareerBuilder Employment Screening 3.8 million 5. Asurint 3.4 million 6. Intellicorp Records Inc 2.9 million 7. Accurate Background 2.7 million 8. Universal Background Screening 2.3 million 9. Informart 1.9 million 10. Employment Background Investigations 1.75 million See the full list 3 The Bruce Berg Report – 2019 PBSA Annual Conference The BIG NEWS at this year’s conference was the association name and branding change from NAPBS to PBSA: Professional Background Screening Association. The change was made with great fanfare, to respond to the borderless nature of the industry. Attendance was hearty with 635 attendees and 269 exhibitor personnel. Angela Preston of Sterling, completing her term as chair of the association and Bon Idziak of Accurate Background assumed the role as the new Chairperson. Michelle Leblond of PlusOne Solutions is the chair-elect. The annual Lifetime Achievement Award was renamed to the Mike Sankey Lifetime Achievement Award and given to NAPBS founding member, its first Chair, Mr. Les Rosen of Employment Screening Resources (ESR). Educational Session Highlights There were many informative sessions held at this background screening conference. PBSA members can access the conference presentations here. Five Takeaways from the Conference 1. Our background screening industry is global. Global CRAs, global clients, global providers. 2. Governments will continue to create laws that complicate and lawyers will continue to find fertile ground relating in our industry. 3. The industry is still healthy due to our strong economy, but how long will that strong economy continue as it is currently in its longest expansion on record? Read here for a thought on the economy. 4. Better sourcing of data at lower costs is a never-ending requirement. 5. You just don’t know what you don’t know. Get educated via PBSA, your competitors and from consultants serving our industry. The association provides a tremendous service to the industry and the members. Thanks to everyone who made it to this year’s annual conference. Plan to come to the mid-year conference in Arlington, VA April 19-21, 2019. We will be in booth #400. Read the full report Does the FCRA Apply to Background Checks for Independent Contractors? The U.S. District Court for the Northern District of Georgia has ruled that screening independent contractors doesn’t trigger the requirements for a background check for “employment purposes” under the law. But, according to Alonzo Martinez, associate counsel for compliance at HireRight, the recent decisions don’t align with the Federal Trade Commission’s (FTC) guidance on the issue. Employers are left to wonder whether they should continue to screen independent contractors as “employees” due to fear of a misclassification claim. Decisions should be made based upon an employer’s workforce composition and how it balances competing interests. Martinez suggests the creation of a separate screening policy for independent contractors in which HR provides disclosures and attains authorization from the worker under a nonemployment permissible purpose. Read more The Fallacy of NYS OCA Misdemeanor Redemption Policy The New York State Office of Court Administration (NYS OCA) will not be providing results regarding a misdemeanor from more than 10 years ago if it was the only criminal conviction the individual had in the last 10 years. But for a person with multiple convictions under different variations of their name, not all criminal information may be provided about an individual’s past convictions. Rather, NYC OCA applies the misdemeanor redemption policy to the name and date of birth, not the person, and each new search is another $95 fee. Read more 4 FOR THE PUBLIC RECORD Informative and thought-provoking analysis from some of the brightest minds in the industry . Putting Analytics to Work for Your Business Hi, again! This is Ken Dawson, Chief Information Security Officer at ClearStar. Let’s start with some context for the discussion via a couple of quotes from people who are way smarter than I am: “What gets measured gets improved,” Peter Drucker, “The Founder of Modern Management.” (Source) “Merely measuring something has an uncanny tendency to improve it,” Paul Graham, Co- Founder at Y Combinator, (Source) These quotes from Peter Drucker and Paul Graham speak to a concept in ways that are uncannily similar, but they come to it from different directions. Drucker’s message is from the standpoint of action or instruction for those who want improvement in an area—measure it. Graham’s idea strikes me as speaking more to the inevitability or power of measuring something— improvement will happen. Side note—at the end of that same quote, he advises caution that backs up his perspective: “Corollary: be careful what you measure.” The common theme here is that measurement is an important factor in improving performance. Whether we’re talking about a company, product, team, or individual, the key to driving improvement is measurement—or at least it starts there. To increase the value of the data we’re collecting, we then need to focus on analytics and visualizations that help us to recognize patterns and to communicate the meaning encapsulated in the data we collect. When measuring individual, team, and company activity to effect changes that drives toward improved outcomes it’s not enough to just measure something or throw out some statistics. You need to pick the right approach, styles, and numbers to reinforce to everyone what is important and valuable. If your team has a wide range of individual performers (from bad to good), then a competitive view could help to motivate the poor performers, or at least help them to understand why another place may be a better fit. By setting targets and/or comparing to prior similar periods, you can help people to understand whether all the hard work is making a difference and whether that difference is enough. Now, you’re probably wondering how this applies to background screening . . . Read the full article 5 LES ROSEN RECEIVES PBSA’S MIKE SANKEY LIFE TIME ACHIEVEMENT AWARD The Professional Background Screening Association (PBSA) has given Attorney Lester Rosen, the founder and Chief Executive Officer (CEO) of Employment Screening Resources® (ESR), the Mike Sankey Lifetime Achievement Award, the highest honor awarded by the PBSA. The Mike Sankey Lifetime Achievement Award recognizes an individual’s outstanding contributions made throughout his or her career which have served to advance excellence in the screening profession. The award is named after the late Michael Sankey, who was the first recipient of the award in 2018. He was part of the steering committee that founded the PBSA and was elected to the first Board of Directors. Rosen – was the chairperson of the steering committee that founded the PBSA in 2003 and served as co- chair in 2004. ESR is a founding member of the PBSA. “I cannot imagine where we as background screeners would be without the distinguished service of Les Rosen. While his career as a whole is impressive, it doesn’t capture the full measure of the man. He is a leader, a visionary, a mentor, and a friend. He has influenced my life and work in countless ways – his impact radiates around this room to each and every person here,” said Standerwick. Read more EMPLOYMENT SCREENING continued Lawsuit Says DoorDash Negligent in Hiring Driver Who Attacked Restaurant Owner A lawsuit has been filed against a DoorDash employee and previous felon for attacking a restaurant owner. The suspect, Mackie Lee Allen, had a history of violence and mental illness. He attacked Fabio Coppola at a Las Vegas restaurant after he waited in the parking lot for his DoorDash delivery run to be ready. Coppolla’s hand was slashed. His attorney said the case raises the questions about minimum standards for protection of consumers and restaurant workers. Read more Salary History Bans A Running List of States and Localities That Have Outlawed Pay History Questions State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants. Continued on page 7 6 Salary History Bans A Running List of States and Localities That Have Outlawed Pay History Questions – continued from page 6 The laws are aimed at ending the cycle of pay discrimination and some go further than merely banning pay history questions. A few also prohibit an employer from relying on an applicant's pay history to set compensation if discovered or volunteered; others prohibit an employer from taking disciplinary action against employees who discuss pay with coworkers. Here, we track the states, cities and other jurisdictions that have passed such bans, and offer a brief description of each law's requirements, its effective date and a link to the original law. • State-wide Bans:17 • Local Bans:19 Read more TENANT SCREENING Minneapolis City Council Passes Limits on Tenant Screening by Landlords A new ordinance will make it difficult for Minneapolis landlords to reject tenants because of their criminal history, past evictions or credit scores. Passed unanimously by City Council, a number of other cities also have adopted tenant screening protections, such as Seattle, Portland and Washington, D.C. Some tenants, however, feel that taking away their decision to screen tenants will lead to higher rents. But advocacy groups argue that people with evictions or criminal convictions have few choices beyond predatory landlords or dilapidated homes. Under the ordinance, landlords can’t deny an applicant on the basis of a misdemeanor if the conviction is older than three years and felonies older than seven years. Landlords can still deny applicants who are convicted of distributing or Read more INFINITY & CONTINUOUS SCREENING Can Background Checks be Conducted on Current Employees? Although most employers stop with a background check during the hiring process, there are several instances in which an employer may choose or have a need to rescreen an employee, such as when a current employee has been arrested, if security has been threatened, if there is the potential for harm to the business or for insurance reasons. It is important, however, for employers to remain compliant with federal laws, as enforced by the Equal Employment Opportunity Commission (EEOC), including obtaining consent from either the prospective or current employee. Employers would be wise to set a policy where every employee will be subjected to a new background screening annually. Read more 7 U.S. LEGAL CHALLENGE As the background screening industry continues to get more competitive the firms that will ultimately succeed will be those that create competitive advantage through their people by offering continuous learning opportunities to heighten their knowledge and capabilities. We believe that having employees that are very knowledgeable about the legal landscape of background screening is essential to continued success. We are grateful to Larry D. Henry who began his law career with the Army JAGC where he tried over 2,000 cases. After the Army he relocated to Tulsa. In 1981, the founder of DAC Services contacted Mr. Henry's firm for assistance in creating a background screening company. Since Mr. Henry's practice was employment law, the firm believed this fell within his area and as they say: "the rest is history". His practice has kept him in continual contact with the background screening industry, and he is a nationally recognized expert in the area of background screening. Mr. Henry's practice is concentrated on employment law and in specific, background screening of employees. He represents consumer reporting agencies throughout the United States and two national trade associations. He is the author of the Criminal Records Manual and the online reference site: Question: A Consumer Reporting Agency has been concerned about recent litigation over disclosures and authorizations. As such, it has reviewed its documents. It believes, due to the lack of sophistication of many of its California customers, that combining the disclosure and authorization for employment is essential to having both forms provided to the consumer. It has created a very simple straight forward disclosure with no other information on it, and also created a simple authorization and provided the same to its California customers. It relied upon an FTC opinion letter stating that combining the disclosure with the authorization is not only allowed, but was believed by the FTC staff that this combining was beneficial to consumers, rather than having them be separate documents. Is the CRA in compliance? a. Yes b. No 8 LEGAL ISSUES LEGAL ISSUES U.S. Federal Judge Rules Terrorist Watchlist Is Unconstitutional U.S. District Judge Anthony Trenga ruled Wednesday that the federal government's watchlist of "known or suspect- ed terrorists" is unconstitutional. The list, which contains over 1 million people, was challenged by the Council on American-Islamic Relations (CAIR) and 23 American citizens who said they were wrongly placed on the list. Judge Trenga ruled that the Terrorist Screening Database (TSDB), known colloquially as the terrorist watchlist, violated due process because there was no clear standard for people to be included or removed from the list. The list is distributed throughout the U.S. government and police agencies, and sent to foreign governments. Read more Colorado ‘Bans the Box’ for Private Employers on September 1, 2019 Colorado began “banning the box” on September 1, when it enacted the Colorado Chance to Compete Act (HB 19-1025), which prohibits employers from requiring applicants to disclose on a job application whether they have been convicted of a felony. At this time, the law only affects employers with 11 or more employees, but it will be expanded to all employers in 2021. Specifically, the new law prohibits: advertising that a person with a criminal history may not apply for a position; placing a statement in an employment application that a person with a criminal history may not apply for a position; and inquiring about an applicant’s criminal history on an initial application. Read more FCRA’s Seven-Year Reporting Window Begins with Charge, Not Dismissal Timothy St. George, Partner, Troutman Sanders was quoted in an SHRM article titled, “FCRA’s Seven- Year Reporting Window Begins with Charge, Not Dismissal.” The article discusses a recent 9th U.S. Circuit Court of Appeals ruling that the measuring period for a criminal charge runs from the date of entry rather than the date of disposition under the Fair Credit Reporting Act (FCRA). Under this decision, criminal charges exceeding the seven-year limit shouldn’t appear in employment screens. St. George stated that, “This interpretation of the reporting rules is consumer-friendly in that it narrows the reporting window and gives specific guidelines of how to treat a non-conviction criminal charge that was ultimately dismissed.” He went on to explain that, “The court provided a lengthy analysis finding a charge is an adverse event upon entry, so it follows that the date of entry begins the reporting window. That interpretation mirrors the opinions put forward by the Federal Trade Commission and the Consumer Financial Protection Bureau.” Source: HR Law Matter, Troutman Sanders, TA Data Protection Laws Inspired by GDPR Are Spreading Across the World. Is New York Next? New York has introduced its first data protection law, the Data Shield Act, ensures stricter obligations for companies that process personal data. The limited law aims to ensure that every New York company makes the necessary efforts to ensure a high level of protection of personal data to prevent data breaches. Although the Data Shield Act is a step forward in data protection, New York politicians drafted a Data Privacy Act very similar to the European General Data Protection Regulation earlier this year. Changes to the New York Privacy Act are ex
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