New Indiana Law Regarding Criminal History Record Checks

As of July 1, 2012, Indiana employers are prohibited from conducting certain pre-employment inquiries, restricting the types of criminal history information that employers and Consumer Reporting Agencies (CRAs) can obtain from Indiana state court clerks, and restricting the types of criminal history information CRAs can report to employers in background check reports. Additional restrictions will also take effect on July 1, 2013.

As of July 1, 2012, HB 1033 allows Indiana residents with restricted or sealed criminal records to state on an “application for employment or any other document” that they have not been adjudicated, arrested, or convicted of the offense recorded in the restricted records. Employers are prohibited from asking an employee, contract employee, or applicant about sealed and restricted criminal records.

Also on July 1, 2012, HB 1033 restricts criminal history information of prospective and current employees that individuals, employers, and CRAs can obtain from Indiana state court clerks by prohibiting courts from disclosing information pertaining to alleged infractions where the individual:

  • Is not prosecuted or if the action against the person is dismissed
  • Is adjudged not to have committed the infraction
  • Is adjudged to have committed the infraction and the adjudication is subsequently vacated; or
  • Was convicted of the infraction and satisfied any judgment attendant to the infraction conviction more than five years ago.

As of July 1, 2013, HB 1033 requires that a “criminal history provider”, such as a Consumer Reporting Agency (CRA):

  • Can only report criminal history that relates to a conviction.
  • Cannot report:
    • Arrests that did not result in a conviction
    • Expunged or restricted records
    • Certain class D felony convictions
    • Records known to be inaccurate
    • Data that has not been updated 60 days or more before the date the report is delivered

The law will also allow the attorney general and a person harmed by a criminal history provider to bring an action against the criminal history provider if the criminal history provider fails to update its records or discloses non-conviction information.

The full text of Indiana House Bill No. 1033 is available at http://www.in.gov/legislative/bills/2012/HB/HB1033.1.html

Pennsylvania Mandates E-Verify for State Public Works Contractors and Subcontractors

On July 5, 2012, Pennsylvania’s Governor Tom Corbett signed into law Act No. 127 (formerly Senate Bill 637), The Public Works Employment Verification Act. The law mandates all public works contractors and subcontractors who work with the state to enroll and use E-Verify, effective January 1, 2013.  “Public work” is defined in the Pennsylvania Prevailing Wage Act of 1961 as:

Construction, reconstruction, demolition, alteration and/or repair work other than maintenance work, done under contract and paid for in whole or in part out of the funds of a public body where the estimated cost of the total project is in excess of twenty-five thousand dollars ($25,000), but shall not include work performed under a rehabilitation or manpower training program.

The state has assigned the Department of General Services to conduct random audits and audits arising out of credible complaints from individuals.  Under this law, public works state contractors and subcontractors must verify their employees using the federal E-Verify System.  Failure to do so would lead to the following penalties:

  • First Offense: warning to violator and posting on Pennsylvania’s website;
  • Second Offense: 30 day debarment from state public works contracts;
  • Third Offense: 180 days or up to one year debarment from state public works contracts;
  • Willful violators may be debarred for up to three years.

State public works contractors and subcontractors will also be required to sign a verification form affirming their enrollment in E-Verify and acknowledging their responsibilities under this new law.  Violators who misrepresent themselves on the statement may be subject to a civil fine of $250 or up to $1,000 per violation.

The law also contains protections for whistleblowers and an anti-discrimination clause (based on race, ethnicity, color or national origin) as well as a “Good Faith” defense clause.

In preparation of the new law, companies are urged to review current policies and discuss them with legal counsel to ensure compliance.  Visit www.carcogroup.com to see how CARCO’s E-Verify program is designed for I-9 compliance.

Background Screening Industry Denounces NCLC Report

The National Association of Professional Background Screeners (NAPBS) announces information from a recent study of background screening companies affirming the accuracy of background checks, refuting a report recently issued by the National Consumer Law Center (NCLC). Here’s the press release:

Schaumburg, IL (PRWEB) June 19, 2012

The National Association of Professional Background Screeners (NAPBS) announces information from a recent study of background screening companies affirming the accuracy of background checks, and refuting a report recently issued by the National Consumer Law Center (NCLC). The study, scheduled to be released later this summer, was validated by veteran market research agency Mathew Greenwald & Associates in Washington, D.C. It found that 98 percent of background screening providers surveyed encounter consumer disputes less than 5 percent of the time out of millions of applicants screened annually. Of the small number of reports that are disputed by a consumer, more than 95 percent are ultimately found to be accurate.

The NAPBS study responds to the recent report released by NCLC regarding the accuracy of background checks, which accuses background screening providers of “routinely making mistakes”. NAPBS refutes the report, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (April 2012). NAPBS believes this report includes several inaccurate points and that the NCLC fails to offer critical empirical data to back up its findings.

Private and public employers, residential managers, and nonprofit and volunteer groups rely upon criminal background checks to protect their staffs, clients, property and the public-at-large. They realize that better decisions come from more, not less, information involving a job candidate. People want and need to know who is coming into their home to do repairs, who is coaching their children in the after-school sports league, and who is responsible for client funds. The Supreme Court affirmed the need for background checks in Nasa v. Nelson, 562 U.S. 2011, and in the past several years, lawmakers around the country have recognized the utility of criminal background checks by enacting countless laws mandating checks to protect vulnerable populations such as the young and the elderly.

The NCLC report claims that 65 million Americans with criminal records are forever tarnished and unemployable as a result of background checks. In fact, according to a study conducted by the Society of Human Resource Management (SHRM), only five percent of employers regard arrest records as “influential”. The EEOC has stepped up enforcement against employers who discriminate based on criminal history, and over 100 cases are pending on this issue. According to NAPBS, the NCLC allegations that the use of criminal background checks make it more difficult for workers to obtain employment is not supported by the facts.

Further, NAPBS believes that the report portrays the background screening industry as being indifferent to the accuracy of data and states, ”evidence indicates that professional background screening companies routinely make mistakes with grave consequences for job seekers”, but the report later notes that “actual accuracy rates are not possible to obtain”. According to NAPBS, the only evidence to support this statement by NCLC is a self-conducted survey of Listserv Members, which seems to lack credibility given its unscientific nature. Furthermore, this statement is incorrect and flies in the face of the Fair Credit Reporting Act (FCRA), which mandates that when a consumer reporting agency prepares a consumer report – one which may contain criminal history information – that they follow reasonable procedures to assure maximum possible accuracy of the information in the report.

The NCLC report also contends that the primary law that protects consumers, the FCRA, “as currently interpreted and enforced, fails to adequately protect consumers when it comes to employment screening”, claiming that even when applicants successfully dispute reports and errors are removed, they are still routinely denied employment.

NAPBS feels this claim ignores existing law that requires background screening organizations to provide the consumer with a free copy of their consumer report and which also mandates that reports of inaccuracy or incompleteness by a consumer must be re-investigated within 30 days. Employers who use a background screening company must follow specific adverse action procedures spelled out in the FCRA, which give job applicants a fair chance to dispute the finding in the report. The adverse action and consumer dispute requirements are core tenets of the FCRA and are intended to protect applicants from being denied employment based on inaccurate or incomplete background screening information. These core tenants are aggressively enforced by the Federal Trade Commission (FTC) as well as by individual states.According to NAPBS, the NCLC’s statement that the FCRA is ineffective has limited factual basis given the FTC’s enforcement ability.

In 2010 NAPBS launched the Background Screening Agency Accreditation Program (BSAAP) to enforce a singular cohesive industry standard. The accreditation program advances professionalism in the employment screening industry through the promotion of best practices, awareness of legal compliance, and the development of standards that protect consumers. The NAPBS Background Screening Credentialing Council (BSCC) is the governing body that oversees the application process and ensures that the background screening organizations seeking accreditation meet and/or exceed a measurable standard of competence.

To become accredited, consumer reporting agencies must pass a rigorous onsite audit conducted by an independent auditing firm. The audit examines policies and procedures as they relate to six critical areas: consumer protection, legal compliance, client education, product standards, service standards, and general business practices. When NAPBS officially rolled its accreditation program out in late 2010 the leadership projected that it would take up to 3 years for all consumer reporting agency members to complete the full accreditation process. Many are in the process and more are preparing the written documentation needed for the audits required for accreditation.

The member companies of NAPBS help put millions of people to work, including ex-offenders. They also help consumers correct misinformation that may be contained on them at the actual courts or law enforcement agencies, as well as any incorrect criminal history information that may have been contained in a consumer report.

NAPBS feels that the NCLC report is inaccurate in stating that less than one percent of background screening agencies are certified by NAPBS. Those seeking NAPBS accreditation are solely the consumer reporting agencies, and not all members listed in the online directory cited in the report.

Providing accurate and complete information is the primary tenet and mission of NAPBS members. To operate otherwise would be detrimental to any business looking to grow in a highly competitive and regulated industry. NAPBS member companies are committed to providing accurate and complete information while demonstrating professionalism, accountability, and a commitment to best practices.

About NAPBS:
The National Association of Professional Background Screeners exists to promote ethical business practices, promote compliance with the Fair Credit Reporting Act and equal employment opportunity laws, and foster awareness of issues related to consumer protection and privacy rights within the background screening industry. Founded in 2003, NAPBS was established to represent the interests of companies offering employment and tenant background screening services.