22
Friday, March 6, 2015 8:15 AM- 9:30 AM How To Avoid the Privacy Pitfalls of Employment Background Checks
Friday, March 6, 2015 8:15 AM- 9:30 AM
How To Avoid the Privacy Pitfalls of Employment Background Checks
MARI J. FRANK, ESQ., CIPP
Mari Frank, Esq., Certified Privacy Professional (CIPP), author: A Step by Step Guide for Ending the Nightmare of Identity Theft; and Safeguard Your Identity: The Idiot’s Guide to Recovering from Identity Theft. Since 2005, Mari has hosted the radio show Privacy Piracy on KUCI public radio 88.9 FM.
Mari has testified on privacy in the California Legislature, Congress, and at the White House. Her PBS Television special, “Protecting Yourself in the Information Age,” aired nationwide. She chairs the California State Bar Privacy Committee. She is advisor to 3M’s Visual Privacy Council, a Fellow for the Ponemon Institute, a Board member of the Privacy Rights Clearinghouse, and was advisor to the California Office of Privacy Protection.
Mari has appeared on dozens of national TV programs. In 2012 Money Magazine named her Money Hero for her work on privacy and identity theft. She mediates privacy and business disputes and serves as a qualified expert witness and trainer on privacy issues. www.kuci.org/privacypiracy; www.identitytheft.org; www.MariFrank.com
FREDERICK G. GILES, CPP
Fred has over 30 years of experience in employment screening, beginning his career in law enforcement. He is currently the Senior Vice President of the Research Division for the CARCO Group, Inc. which holds the coveted Accreditation by the NAPBS.
Fred holds a B.A. from Syracuse University, has completed studies at the North Carolina Justice Academy, and is a licensed private investigator in multiple states.
He is a Certified Protection Professional with ASIS International, the 2013 Chair of National Association of Professional Background Screeners, currently serves on the Background Screening and Credentialing Council for NAPBS and is also a member of SHRM.
He has served as subject matter expert to national news media including Discovery channel's "Inside" series, has published numerous magazine articles on background screening and is a contributing author to the Protection of Assets Manual and The Investigator’s Handbook, both published by ASIS.
www.carcogroup.com
BETH GIVENS, MA
Beth is founder and Executive Director of the Privacy Rights Clearinghouse, established in 1992. The PRC is a nonprofit consumer information and advocacy organization located in San Diego, CA. The organization invites consumers’ complaints and questions about privacy, and its website provides more than 80 consumer guides on a wide range of informational privacy issues.
Givens has testified on privacy at the state and federal levels and often serves as a media expert. She has served on numerous public policy task forces. Givens co-authored with Mari Frank a chapter on identity theft in Protection, Security and Safeguards (2nd ed., 2013). Prior to her work as a consumer advocate, she was a librarian specializing in network development and resource sharing. Givens has a master’s degree from the University of Southern California Annenberg School for Communication, and a master’s degree in Library and Information Services from the University of Denver. www.privacyrights.org.
ROBERT SCHOSHINSKI, ESQ.
Robert Schoshinski is an attorney and Assistant Director in the Federal Trade Commission’s Division of Privacy and Identity Protection. His responsibilities include supervising the investigations, litigation, and policy work performed by the Division’s attorneys and investigators relating to FCRA enforcement, privacy, data security, and identity protection. Mr. Schoshinski joined the FTC in 2001.
Prior to joining the FTC, Mr. Schoshinski served as a supervising attorney and adjunct professor in the D.C. Law Students in Court litigation clinic, training law students from five D.C. law schools in litigation and substantive law and supervising their practice in court. He had previously worked as a litigation associate in private practice.
www.FTC.gov
WHY SHOULD YOU BE CONCERNED ABOUT EMPLOYMENT BACKGROUND CHECKS?
Publix Super Markets Inc. (November 2014)
• Agreed to pay $6.8 million in class action settlement
• Violation of FCRA for not making “legally required disclosures about background checks to job applicants.”
Dollar General (October 2014)
• Agreed to pay a settlement of $4.08 million
• For “willfully failing to comply with FCRA disclosure and authorization requirements in obtaining a consumer report for employment purposes.
Swift Transportation (April 2014)
• Agreed to pay a $4.4 million dollar class action settlement
• Violation of FCRA for not disclosing to driver applicants that they could access and contest background check reports used in the company’s hiring process.
TRUE/FALSE QUESTIONS
1. Most background companies compile their reports from Internet searches and commercially aggregated criminal databases.
2. Most background companies maintain all the searches they conduct so they can resell them.
TRUE/FALSE QUESTIONS
3. The Social Security Number is NOT the most significant identifier used when conducting criminal court searches.
4. Credit scores are an important tool used in many employment decisions, especially in the financial sector.
TRUE/FALSE QUESTIONS
5. An applicant applies for a job paying $70,000 per year. After appropriate notices and consent was given, the employer requests a background report from a company. If the report includes an arrest from nine years ago and a civil judgment from eight years ago, this is a FCRA violation.
6. If an employer obtains a background report on a current employee seeking a promotion, and then decides not to promote the employee based on information in the report, the employer must give the employee an adverse action notice.
TRUE/FALSE QUESTIONS
7. The same FCRA restrictions apply if the company is doing its own background checks rather than use a third-party.
8. It is a violation of FCRA if an employer uses a third-party online information broker to do a background check and does not get prior permission from the potential employee.
TRUE/FALSE QUESTIONS
9. Under the Fair Credit Reporting Act, employers must get permission from the potential employee before Googling an employee or searching social networking websites.
10. Once an employer has conducted a background check on a job applicant who is then hired, it can continue to run background checks on that employee without obtaining consent for each additional background check.
TRUE/FALSE QUESTIONS
11. Several states have passed laws limiting the use of credit reports for employment screening purposes.
12. Only 30% of employers require background checks.
DISCUSSION QUESTIONS
The moderator will engage the panel.
The audience may write out questions and the Moderator will collect and pose them to the panel.
AVOID A LAWSUIT!
• Violations of 15 U.S.C. § 1681, et seq. ("FCRA"):
• Statutory damages up to $1,000 for each instance when an employer obtains a consumer report without proper disclosure and authorization.
• May include attorneys’ fees, actual damages, punitive damages, costs.
• Sample class actions in 2014 against: Whole Foods, Home Depot, Staples, LinkedIn, Uber, Domino’s Pizza, Johnson & Johnson.
AVOID A LAWSUIT
• Prior Consent and Disclosure Required
• Authorization and disclosure must stand alone
• No waivers, disclaimers, or other information on authorization forms
• Clarify type of background check
• Provide contact information the for investigation agency
• Get valid signatures before ordering the report
• Give applicant a copy of authorization(Best Practice)
AVOID A CLASS ACTION
l
Applicants entitled to receive pre-adverse action notices:
• Send pre adverse letter for any derogatory reported data
• Send “pre-adverse action” notice prior to deciding based on report
• Provide applicant notice and complete copy of report
• Attach a Summary of Rights under the FCRA
Send “adverse action” notice after deciding not to hire:
• Decision process to include assessment of candidate suitability
• Provide how to dispute the background check and copy of report again
• Give the applicant a chance to challenge the results
AVOID A LAW SUIT
Some state laws are NOT preempted by FCRA
• Some states limit information employers can use in screening.
• Different standards for the use of arrest information and older cases. Non-pending arrests should not be reported.
• California allows applicants to request report at the time of the authorization.
• Credit reports should only be used for job related reason or permitted by law.
CONTACT INFORMATION Moderator
Mari Frank,Esq., M.A., CIPP, attorney/ mediator, radio show host of Privacy Piracy, adjunct professor. Email: [email protected]; www.kuci.org/privacypiracy;www.identitytheft.org
(949) 364-1511, (800) 725-0807
Industry Perspective
Fred Giles, CPP, immediate past Chair of National Association of Professional Background Screeners and Sr. Vice President, CARCO Group. Email: [email protected] ; www.carcogroup (800) 969-2271 Ext 420
Consumer Privacy Perspective
Beth Givens, M.L.S., M.A., Executive Director, Privacy Rights Clearinghouse. Email: [email protected]; www.privacyrights.org (619) 298-3396
Government Perspective: Federal Trade Commission
Robert Schoshinski, Assistant Director, Division of Privacy and Identity Protection, Federal Trade Commission. Email: [email protected]; www.ftc.gov; (202) 326-3219
RESOURCES Best Practice Standards: The Proper Use of Criminal Records in Hiring. Published by National H.I.R.E. Network, Lawyers’ Committee for Civil Rights, and National Workrights Institute (2013). http://www.lawyerscommittee.org/newsroom/publications?id=0037
Fields, Gary and Emshwiller, John R. “As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime.” Wall Street Journal. (August 18, 2014) http://online.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402
“List of Consumer Reporting Agencies,” Consumer Financial Protection Bureau. (January 2014) http://files.consumerfinance.gov/f/201207_cfpb_list_consumer-reporting-agencies.pdf . See last section, “Employment History Reports”, pg. 13. List is not comprehensive.
RESOURCES, CONT’D Miller, Montserrat of Arnall Golden Gregory LLP, “Use of Social Media for Background Screening.” (January 22, 2015). http://tinyurl.com/ngn5gf4
Miller v. Johnson & Johnson. United States District Court, M.D. Florida, Orlando Division. Case No. 6:13-cv-1016-Orl-40KRS. (January 14, 2015). http://tinyurl.com/ov5zu2o
National Employment Law Project. “Advancing a Federal Fair Chance Hiring Agenda: Background Check Reforms in Over 100 Cities, Counties, & States Pave the Way for Presidential Action.” (January 2015) http://nelp.3cdn.net/1729136b97cea06c26_abm6ywxzn.pdf
Preston, Angela. “AutoZone Hit with Background Screening Class Action.” (Oct. 2, 2014) http://www.employeescreen.com/iqblog/autozone-hit-with-background-screening-class-action/
RESOURCES, CONT’D
Preston, Angela. “Whole Foods Hit with FCRA Class Action for Background Screening Process.” (Feb. 12, 2014) http://www.employeescreen.com/iqblog/whole-foods-hit-with-fcra-class-action-for-background-checks/
Privacy Rights Clearinghouse, “Employment Background Checks: A Jobseeker’s Guide.” https://www.privacyrights.org/employment-background-checks-jobseekers-guide
Privacy Rights Clearinghouse, “Employment Background Checks: Know Your Rights.” (6-minute video) https://www.privacyrights.org/employment-background-checks-know-your-rights-video
RESOURCES, CONT’D
Recent Federal Trade Commission Orders Relating to Background Screening
• U.S. v. Infotrack Informational Services, Inc., et al.; http://www.ftc.gov/enforcement/cases-proceedings/122-3092/infotrack-information-services-inc-et-al
• U.S. v. Instant Checkmate, Inc.; http://www.ftc.gov/enforcement/cases-proceedings/122-3221/instant-checkmate-inc
• In the Matter of Filiquarian Publishing, LLC, Choice Level, LLC, and Joshua Linsk, (admin final Apr. 30, 2013); http://ftc.gov/os/caselist/1123195/index.shtm
• U.S. v. HireRight Solutions, Inc.; http://ftc.gov/os/caselist/1023130/index.shtm
• U.S. v. Spokeo, Inc.; http://ftc.gov/os/caselist/1023163/index.shtm
FTC Background Check Guidance
• Background Checks: What Employers Need to Know; http://www.ftc.gov/tips-advice/business-center/background-checks-what-employers-need-know
