Volume Eleven Number Four April 2009 Published Monthly Earn CEU Credit www . hcca - InfO . Org / quIz , see page 27 Meet Kathleen B. Roberts OIg issues three Corporate Compliance and reports on adverse Privacy Officer, Baptist Health events at hospitals page 14 page 4 HCCA is going green Feature Focus: HCCA conference attendees will NOT automatically Executive receive conference binders. If you would like to purchase conference binders, please choose that option on your compensation in conference registration form. Attendees will receive electronic access to course materials prior to the conference troubled times— as well as a CD onsite with all the conference materials. Part 2 page 30
Health Care Compliance Association • 888-580-8373 • www.hcca-info.org Editor’s note: Michelle A. Morgan is an associate jonesday.com. at 214/969-4575 or by e-mail at mamorgan@ Day in Dallas. She may be reached by telephone in the Labor and Employment Practice of Jones 101 COMPLIANCE COMPLIANCE information requested to ensure that such Tie information must be for employment information complies with any restrictions purposes for use in evaluating a prospective or imposed by federal and state law, relates to current employee. When used in connection the employment position at issue, is not an with a consumer report, “employment purposes” absolute bar to employment, and does not have means “a report used for the purpose of evaluat- Navigating a disparate impact on any protected group. ing a consumer for employment, promotion, reassignment or retention as an employee.” 3 the minefield Numerous states prohibit or otherwise restrict inquiries into arrest records, juvenile records, of criminal vacated or expunged records, and criminal Under FCRA, before initiating a criminal background checks records antedating the request by a certain background investigation through a consum- time period. Further, the Equal Employment er reporting agency, employers must: By Michelle A. Morgan Opportunity Commission (EEOC) has found n provide the applicant or employee with a that, because inquiries into arrest records have a “clear and conspicuous” written, stand- disparate impact on some racial and ethnic minori- alone disclosure which informs the ties, arrest records alone are not reliable evidence applicant or employee that the employer that a person actually has committed a crime. T o may obtain a consumer report (including justify use of arrest records, employers must not criminal background information) and use only determine whether the conduct alleged in the it to make employment decisions; and I nvestigating the criminal backgrounds of arrest record is job-related to the position at issue, n secure written authorization from the prospective and current employees can help but must also evaluate whether the arrest record applicant or employee to obtain such a refmects the applicant or employee’s conduct. 1 report. 4 Tie authorization should be pro- employers determine the suitability of can- didates for employment, promotion, and reten- Accordingly, employers should carefully consider spective and suffjciently broad to encom- tion. In conducting their criminal background whether to include arrest records in their criminal pass not only the application process, but checks, however, employers should ensure that background checks. also the entire duration of employment. their inquiries, use of, and disclosures regarding criminal background check reports are compli- Further, employers must comply with the In conjunction with making the disclosure ant with federal and state nondiscrimination and disclosure, authorization, certification, and to and obtaining the authorization from the consumer reporting laws. reporting requirements of the Fair Credit applicant or employee, employers should also Reporting Act (FCRA) and any applicable secure a written release of claims associated with Conducting the inquiry state law consumer reporting requirements the investigation, verifjcation, or use of any Be careful what you ask for ( and when and how whenever they obtain criminal background information relevant to the background check you ask for it ). Investigation into an applicant’s information from a consumer reporting agen- process, such as invasion of privacy claims. or employee’s criminal background must be cy. Consumer reporting agency means job-related, appropriately limited in scope, Under FCRA, before requesting a criminal back- and disclosed to and authorized in writing by any person which, for monetary fees, dues, ground check from a consumer reporting agency, the applicant or employee in accordance with or on a cooperative nonprofjt basis, regularly employers must certify to the agency that they applicable federal and state law. For prospec- engages in whole or in part in the practice n have provided the required “clear and tive employees, criminal background checks of assembling or evaluating consumer conspicuous disclosure” to the applicant or should be performed on a pre-employment credit information or other information employee; basis, after extending a conditional ofger of on consumers for the purpose of furnish- n have received written permission from the employment contingent upon the employer’s ing consumer reports to third parties, and applicant or employee to obtain the report; evaluation of the background check report. which uses any means or facility of interstate n will adhere to the disclosure requirements if commerce for the purpose of preparing or any adverse employment action is intended or furnishing consumer reports. 2 Employers should use caution in determin- taken in whole or in part based on the report; ing the scope of the criminal background and April 2009 36
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