BACKGROUND CHECKS & JOBS 1825 SW Broadw ay 1825 SW Broadw ay - - PowerPoint PPT Presentation

BACKGROUND CHECKS & JOBS

1825 SW Broadw ay M343 Smith Memorial Student Union 503.725.4556 w w w.pdx.edu/sls 1825 SW Broadw ay M343 Smith Memorial Student Union 503.725.4556 w w w.pdx.edu/sls

Areas of Investigation and Issues Presented

As many as 47% of employers were checking credit reports in 2009, up from 19% in 1996

FIVE TYPES OF BACKGROUND CHECKS

• Criminal Background
• Work History and Credential Verification
• Employment Eligibility
• Credit Report
• Drug Screening

CRIMINAL BACKGROUND

ALCOHOL USE

• Underage drinking, false ID, aiding and

abetting underage drinking (i.e. hosting a party with alcohol infractions)

CRIMINAL BACKGROUND

DRUG USE

• Possession of illegal drugs, drug

paraphernalia, or prescription drugs without a doctor’s authorization; manufacturing or selling illegal drugs (determined by amount rather than intent to sell)

CRIMINAL BACKGROUND

THEFT/LARCENY

• Shoplifting, credit card fraud, property

theft (i.e. road signs or symbols of a rival fraternity or college); employee theft

CRIMINAL BACKGROUND

ASSAULT

• Fighting, domestic violence

(applies to any current or former romantic relationship), date rape

CRIMINAL BACKGROUND

DRIVING RECORD

• Driver’s license suspended or

revoked, driving under the influence (DUI), driving while intoxicated (DWI), traffic violations

CRIMINAL BACKGROUND

OTHER

• Violation of noise ordinance,

hazing, public intoxication, disorderly conduct, indecent exposure (public urination), stalking

PROBLEMS: WORK HISTORY AND CREDENTIAL VERIFICATION

EDUCATION

• Degree not completed as claimed or

institution is a “diploma mill”

• Honors claimed falsely or GPA inflated
• Inaccurately reporting major and/or minor

PROBLEMS: WORK HISTORY AND CREDENTIAL VERIFICATION

EMPLOYMENT

• Exaggerated level of job responsibilities
• Inaccurate job title

EMPLOYMENT ELIGIBILITY VERIFICATION

• Not a U.S. citizen,

permanent resident, or sponsored by an employer for a work visa

• Ineligible to work in the

United States

EMPLOYMENT ELIGIBILITY VERIFICATION

• Lack of U.S. citizenship
• Ineligible for positions requiring

security clearance (such as federal employer or defense contractor)

CREDIT REPORT

FINANCIAL IRRESPONSIBILITY

• High indebtedness due to living

beyond means; high debt to income ratio (credit card charges, not student loans)

• Filing bankruptcy or failing to

comply with terms of credit agreement (such as a pattern of late payments)

DRUG TESTING

• Urine Test
• Hair Test
• Five‐panel test of “street drugs” (marijuana,

cocaine, PCP, opiates, and amphetamines) OR

• Ten‐panel test, which also checks for

commonly abused prescription drugs Most drugs can be detected within two to four days of use and up to 14 days after heavy use of marijuana or PCP

• Detects drugs for up to 90 days after use

SOME FACTORS CONSIDERED BY EMPLOYERS

• The seriousness of the offense
• How recently it occurred
• Whether you followed through with orders of the court
• Extenuating circumstances (IF the employer asks for details)
• Whether there is a pattern of deception or irresponsibility
• Whether the offense demonstrates unsuitability for a specific

job opening

SO YOU HAVE A CONVICTION. . . . WHAT NOW?

• Are you eligible to expunge? Many jurisdictions do not allow

for expungment of a conviction. How many of your states do?

• In Oregon, the courts look at a 10‐year period to

determine eligibility for expungment .

• If you have one conviction in the last ten years, and that

conviction is at least three years old, you may be eligible to expunge.

• If you have more than one conviction in the last ten

years, you must wait until the most recent conviction is over 10‐years old.

WHAT TYPES OF CONVICTIONS CAN BE EXPUNGED?

• In general, any class C felony, misdemeanor, or violation can be

expunged except:

• Sex crimes
• State or municipal traffic offenses
• Criminal Mistreatment 1st Degree, when child abuse
• Endangering the Welfare of a Minor, when child abuse

WHAT TYPES OF CONVICTIONS CAN BE EXPUNGED?

If you are not sure whether your conviction qualifies to be expunged and are a PSU student, please contact Student Legal Services to schedule an appointment. If you are not a student,

• ur website has links to other community resources that can

help.

There are many exceptions, so please consult with an attorney if you think you may not be eligible and would like to double check.

EXPUNGMENT: WHAT’S THE CATCH?

• It is ultimately up to a Judge to sign an Order requiring the

Court clerks to seal your record.

• Some violations, if criminal in nature, (examples include

possession of less than an ounce of marijuana and non‐ payment of Tri‐met fare) can impact expungment eligibility despite the fact that they are not commonly viewed as “criminal.”

• SLS does assist with expungment free of charge, but there

are some costs to the expungment process. These include court filing fees, fingerprints, and an $80 fee which is paid to the prosecuting attorney’s office. These costs can add up to nearly $300 in cases where an individual is not approved for a waiver of court fees.

The Fair Credit Reporting Act (FCRA)

15 U.S.C. § 1681

• Creates duties for Credit Reporting Agencies (CRA’s)
• Credit Reporting Agencies Include:

Equifax Transunion Experian

• These reporting agencies monitor your credit report and

FICO score and release this information to potential creditors, landlords, potential employers and a myriad of

• ther people who may seek your credit information

legitimately.

• Also covers reporting agencies like OPENonline

that conduct criminal background checks

The Fair Credit Reporting Act (FCRA)

The consumer report cannot include the following:

• Bankruptcies after 10 years
• Civil Suits, Civil Judgments, & Arrest Records after seven years
• Paid Tax Liens after seven years
• Accounts placed for collection after seven years
• Any other negative information (except criminal convictions)

after seven years

The Fair Credit Reporting Act (FCRA)

• An employer may use an outside agency called a “Consumer

Reporting Agency” to conduct background checks for “Employment Purposes”

“Employment purposes” are broadly defined to mean evaluating a consumer for employment, promotion, reassignment, or retention as an

• employee. The definition has been expanded to include employers who

are even considering the possibility of actions such as termination. § 1681a(h)

• Certain employee misconduct and compliance investigations

are excluded from the definition of a consumer report and are provided more limited protection. § 1681(d)(2)(D), § 1681a(x)

The Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681

The Fair Credit Reporting Act (FCRA) regulates the actions of Consumer Reporting Agencies who provide consumer reports to employers, but it does not regulate the actions of in‐house background checks by employers.

The Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681

There are several notice and procedural requirements related to the permissible use of consumer reports in connection with employment.

• 1. The Employer Must Provide Prior Certification

The employer must certify to the CRA that it has advised you that it will be requesting a report, that you have consented in writing to the release, and that the employer will make certain disclosures if adverse action is

• r will be taken based in whole or part on the report.

§ 1681 b(b)

YOUR RIGHTS UNDER FCRA

• 2. The Employer Must Obtain Your Consent

The employer must obtain your consent in writing before they conduct background checks through an outside agency. § 1681 b(b)(2)(A). Note: If you are applying for a position over which the Secretary

• f Transportation has the power to establish qualifications and

hours of service or a position subject to safety regulation by a State transportation agency, the employer must provide oral, written, or electronic notice that a consumer report may be

• btained for employment purposes, together with a summary of

the consumer’s rights under § 1681 (b)(2)(B)

YOUR RIGHTS UNDER FCRA

• 3. The Employer Must Provide Notice to You Before it Takes

Adverse Action Against You “Adverse action” is defined as “a denial of employment or any

• ther decision for employment purposes that adversely affects

any current or prospective employee.” § 1681 a(K)(1)(b)(ii). If the employer uses information from the consumer report to

• deny your application
• terminate your employment
• invalidate a job offer or
• deny a promotion

You must be given a “pre‐adverse action disclosure” before these actions are taken which includes a copy of the report and explanation of rights.

YOUR RIGHTS UNDER FCRA (cont.)

Under 15 U.S.C. § 1681 b(3)(A), the “pre‐adverse action disclosure” must include: “[I]n using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates: (i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Bureau under section 1681 g(c)(1) of this title.”

YOUR RIGHTS UNDER FCRA (cont.)

The “pre‐adverse action disclosure” requirement is unique to employment situations. Litigation Tip: An issue of fact as to the sequence of events may be created by showing that the employer actually made

• r conveyed the decision to take an adverse action before

formally notifying the consumer of the action. Burghy v. Dayton Racquet Club, Inc., 2010 WL 728282 (Feb. 26, 2010) The amount of time that an employer must allow between the pre‐adverse action disclosure and the adverse action itself is not specified in the statute.

YOUR RIGHTS UNDER FCRA (cont.)

Even so, the reason for the requirement is to give the consumer the opportunity the correct any mistakes in the consumer report and to address any misunderstanding the report may have engendered in the mind of the employer. Presumably, the period should be long enough for the consumer to exercise rights to correct errors in the report. Litigation Tip: An FTC Informal Staff Opinion Letter suggests that five days is reasonable, though the facts of a particular case may warrant a longer period. One court has concluded that five days was insufficient. Beverly v. Wal‐ Mart Stores, Inc., 2008 WL 149032 (E.D. Va. Jan. 11, 2008)

YOUR RIGHTS UNDER FCRA (cont.)

• 4. The Employer Must Provide a Post‐adverse Action Notice

After an adverse employment action is taken, pursuant to § 1681m(a), you must be given another “adverse action notice” which includes:

• the name, address, and phone number of the agency that conducted

the background checks

• a statement that the agency did not make these decisions, and
• a notice that you have the right to dispute the information in the

report.

There must be a reasonable relationship between the nature of your employment and the criminal offense committed for an employer to take adverse action.

YOUR RIGHTS UNDER FCRA (cont.)

• 5. FCRA mandates specific procedures when a CRA furnishes

“items of information on consumers which are matter of public record and are likely to have an adverse effect upon a consumer’s ability to obtain employment” and the public information is adverse. While the statute does not define what adverse public record information is, it does mention things like “items of public record relating to arrests, indictments convictions, suits, tax liens and

• utstanding judgments.” § 1681k(a)(2)

FCRA provides special consumer protections when this type of information is disclosed because such information is likely to have a significant effect on employment decisions.

YOUR RIGHTS UNDER FCRA (cont.)

LITIGATION TIPS: A consumer has grounds to file suit against the CRA under the FCRA when the prospective employee’s consumer report included a charge of failing to register as a sex offender when in fact the charge was dismissed because of mistaken identity Haro v. Shilo Inn, 2009 WL 22522105 (D. Or. July 27, 2009). Certain records, like juvenile records, might be prohibited by federal or state law from being made public. If one of these items appears on a consumer report, the CRA may have violated the FCRA.

YOUR RIGHTS UNDER FCRA (cont.)

When public record information is likely to have an adverse effect on employment, the CRA must comply with at least one of the following two procedures:

• 1. The CRA must notify the consumer of the release of the

public record information at the time the information is furnished to the employer; OR

• 2. The CRA must establish strict procedures to maintain

complete and up‐to‐date public record information. § 1681k(a)

CIVIL LIABILITY UNDER FCRA

The FCRA provides for civil liability for both willful and negligent violations. See 15 U.S.C. § 1681n(a) & § 1681o.

• 1. The failure of an employer to provide notice and
• btain authorization prior to obtaining a consumer

report subjects the employer to the usual private remedies of the FCRA including actual damages, punitive damages, costs and attorney fees.

CIVIL LIABILITY UNDER FCRA

• 2. The failure of an employer to provide the pre‐

adverse action notice subjects the employer to the usual private remedies of the FCRA including actual damages, punitive damages, costs and attorney fees.

This distinguishes the pre‐adverse action notice from other notices given after the adverse action under § 1681m, on which the Fair and Accurate Credit Transactions Act (“FACTA”) amendments to the FCRA have cast doubt on the ability of consumers to seek private enforcement.

CIVIL LIABILITY UNDER FCRA

• 3. Revisions to the FCRA by the FACTA amendments

have been interpreted by many courts as removing any private rights of action to enforce the provisions

• f § 1681m related to post‐adverse action notices.

The Seventh Circuit Court of Appeals and a number of district courts in the Second, Third, Fifth, Sixth, Ninth and Eleventh Circuits have all issued decisions concluding that § 1681m is no longer privately enforceable. LITIGATION TIP: § 312(f) of the FACTA amendments makes clear that none of the amendments to the Act were intended to abrogate private rights of action that existed before the amendments. Pub. L. No. 108‐159, Title III, § 312(f), 117 Stat 1993 (Dec. 4, 2003). Two decisions have upheld the right of private

• action. Kubbany v. Trans Union, LLC, 2009 WL 1844344

(N.D. Cal. June 2, 2009); Barnette v. Brook Road, Inc., 429 F. Supp. 2d 741 (E.D. Va. 2006)

CIVIL LIABILITY UNDER FCRA

• 4. Employer use of consumer reports may also violate

the federal anti‐discrimination laws if an employer intentionally uses them to discriminate or if they disproportionately exclude people in a particular group by race, sex, or anther protected class, unless the employer can justify the test or procedure under the law. 42 USC § 2000E‐2(k).

EEOC Employment Tests and Selection Procedures are available at ww.eeoc.gov/policy/docs/factemployment_procedures.html

CIVIL LIABILITY UNDER FCRA

What damages are available under FCRA? If the violation was negligent, then the consumer is entitled to actual damages, court costs, and attorney fees. If the violation was willful, then the consumer is entitled to actual damages or statutory damages ranging from $100 to $1000, punitive damages, court costs and attorney fees. § 1681o(a), § 1681n(a) What is the Statue of Limitations? Suit must be filed within 2 years of the “discovery by the plaintiff

• f the violation that is the basis for . . . liability” but in no event

more than 5 years after the date of such violation. § 1681p

OREGON SB 1045

• Went into effect July 1, 2010
• Prohibits employers from using credit histories in making

employment‐related decisions.

“an unlawful employment practice for an employer to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant

• r an employee with regard to promotion, compensation or the terms,

conditions or privileges of employment based on information in the credit history.”

• The new law does not affect an employer’s ability to conduct

criminal background checks or investigate a prospective employee’s employment history.

OREGON SB 1045

• The Oregon law differs from FCRA.
• Under the federal act, an employer can make employment‐

related decisions based on credit history but, prior to running a credit check, must notify prospective employees in writing and receive their consent.

• Additionally, if the employer decides not to hire because of the

credit report, the employer has disclosure, notice and other

• bligations.
• In contrast, the Oregon law creates an outright ban on the use
• f credit history in employment‐related decisions.

OREGON SB 1045

There are four exceptions to the prohibition:

• Bank and credit union employers
• Employers that are required by state and federal law to use

credit histories for employment purposes

• Public safety officer employers
• Employers that can demonstrate that credit information is

"substantially job‐related” and that provide written disclosure of the reasons for the use of the credit check The statute does not further define what “substantially job‐ related” means, nor has the Oregon Bureau of Labor and Industries (BOLI) adopted rules to inform employers on how it will be applied.

OREGON SB 1045

A violation of the new law is an unlawful employment practice, and an aggrieved individual can file a complaint with BOLI and a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney’s fees. There are similar statutes in Washington and Illinois

• Wash. Rev. Code § 19.182.020 (prohibiting pre‐employment

use of consumer credit reports unless the information is substantially job related) Illinois Public Act 096‐1426 (same)

WHAT CAN YOU DO BEFORE YOU START YOUR JOB SEARCH?

• You can contact Consumer Reporting Agencies (CRAs) to make

sure the information they provide about you is correct.

Trans Union P.O. Box 1000 Chester, PA 19022 (800) 916‐8800 http://www.transunion.com/corporate/personal/personal.page Equifax Experian P.O. Box 740241 P.O. Box 2104 Atlanta, GA 30374‐0241 Allen, TX 75013 (800) 685‐1111 (888) EXPERIAN (888‐397‐3742) http://www.equifax.com/home/en_us http://www.experian.com/

• You can request a free credit report once every 12 months

from each of the of these CRA’s from https://www.annualcreditreport.com

YOU CAN RUN YOUR OWN BACKGROUND CHECK

CICS (City Investigations Corporate Security) charges $14. (https://www.criminalscreens.com/) They perform criminal history reports, past residence locations, motor vehicle reports, driving histories, credit reports, credential verification, employment verification, and other services. The CICS website has a handy guide for employers to reference during interviews and when they do background checks. (https://www.criminalscreens.com/Resources/Docs/Guide%20To %20Employment%20Investigations.pdf) They also include a list of reports/notices that are used in hiring. (https://www.criminalscreens.com/Public/Resources.aspx)

YOU CAN RUN YOUR OWN BACKGROUND CHECK

To get a copy of your own record from the State of Oregon, you must provide a set of fingerprints (go to the police bureau, $20 for the fingerprint card), then send those and a $33 check to Or. State Police. They will mail you your record within 7‐10 days.

http://www.oregon.gov/OSP/ID/docs/copy_own_or_record.pdf

To get a copy of your own record from the FBI, you must complete an application form, include a completed fingerprint card, Include a cashier’s check, money order, or credit card payment for $18.00. Takes up to 12 weeks to receive.

http://www.fbi.gov/about‐us/cjis/background‐checks/background_checks

THE BOTTOM LINE

• Do your best not to put yourself in situations where you are

committing criminal acts or around individuals who are.

• If you have been arrested, charged, or convicted of any

crime, this is especially important to protect your eligibility for expungment.

• Bear in mind that many apparently common activities are

illegal and can result in criminal prosecution, and try not to engage in those activities or be around those that are.

• Please visit our website: www.pdx.edu/sls for more information

and contact us for an appointment to answer any specific questions about your case.

Questions?

1825 SW Broadw ay M343 Smith Memorial Student Union 503.725.4556 w w w.pdx.edu/sls 1825 SW Broadw ay M343 Smith Memorial Student Union 503.725.4556 w w w.pdx.edu/sls