San Francisco’s Board of Supervisors Passes “Ban the Box” Law

Law bookThe San Francisco Board of Supervisors unanimously passed Ban the Box legislation to expand the city’s existing law to include most private employers, publicly funded housing providers and city contractors.

Under San Francisco’s Fair Chance Ordinance, employers are barred from inquiring about an applicant’s criminal convictions and pending charges on the employment application or during the first live interview.  Exempted from the ban are applicants for jobs where criminal history is relevant, such as law enforcement and child care.

Restrictions:

At the point when employers can inquire into criminal history, they can ask only about misdemeanor and felony convictions that occurred within seven years of the inquiry.

Employers are prohibited from asking about:

  • arrests other than those for which charges are still pending,
  • the completion of a diversion program,
  • sealed and juvenile offenses, and
  • infractions that are not felonies or misdemeanors.
  • Before making a permissible inquiry, employers must provide the applicant with a notice regardless of whether the inquiry is made directly to the applicant or to a third-party consumer reporting agency, i.e., a background check vendor.
  • If an applicant does disclose criminal history, employers can consider the information only if it has a direct and specific negative bearing on the applicant’s ability to perform the responsibilities related to the position.
  • In evaluating whether criminal history meets this standard, the employer must consider whether the position offers the opportunity for the same or similar offenses to occur, and whether the underlying conduct will recur in the position.
  • The employer must consider the time that has elapsed since the conviction or unresolved arrest and must conduct an individualized assessment taking into account a list of factors that might evidence rehabilitation or mitigating circumstances.
  • If the employer decides to reject an applicant based on criminal history, it must provide a pre-adverse action notice and a final adverse action notice.
  • The notice must be provided regardless of whether the employer obtains the criminal history information through the applicant’s self-disclosure or a background report provided by a consumer reporting agency.
    1. The notice must identify the specific criminal history that provides the basis for the adverse decision, whereas the FCRA has no such requirement.
    2. The employer must wait at least seven days from the date of the notice before taking final adverse action.
    3. If the applicant disputes the criminal history or provides information regarding rehabilitation or mitigating factors during the seven-day waiting period, the employer must wait a “reasonable time” before taking adverse action.
    4. Employers must retain records related to the hiring process for three years and provide them to the OLSE for inspection upon request.

Enforcement:

The consequences of non-compliance could be significant:

The City can pursue civil remedies for violation of the Ordinance, including:

  1. an injunction,
  2. reinstatement of the employee,
  3. back pay and benefits,
  4. $50 per employee for each day the Ordinance was violated, and
  5. attorneys’ fees and costs.
  6. The OLSE can pursue administrative enforcement which, during the first 18 months after the Ordinance’s effective date and for a first violation, is limited to a warning and an offer of assistance with compliance.
  7. After the initial grace period, the OLSE can seek penalties of up to $50 per employee for a second violation and of up to $100 per employee for each subsequent violation.

It is recommended that San Francisco employers review their employment application and hiring processes with counsel to ensure compliance.

 

Click here for information on the Ordinance:

https://sfgov.legistar.com/LegislationDetail.aspx?ID=1532673&GUID=992EEEE0-1602-4FB8-92C7-78D127400B0D&Options=&Search=

 

 

What makes CARCO the best risk mitigation company in the industry and the best partner for your company?

All vendors can provide the required background screening checks…..

The difference is HOW they are completed!

Things to consider when hiring a background screening company:

  •  Are checks conducted through databases?…
  • Rising number of class action lawsuits against background screening companies….WHY?
  • Are checks legally compliant?
  • Does your provider focus on risk mitigation or simply “check the box” solutions?
  • Are they outsourcing critical functions to keep costs low?
  • Are they re-verifying results to ensure accuracy?
  • Are they accredited by the NAPBS?
  • Do they stand behind their work product with indemnification protection?
 Why choose CARCO?  Simply put…..
Our philosophy is a constant focus on providing the best product and highest quality service to our clients. CARCO’s goal is to make our clients’ jobs easier by developing innovative technology solutions that provide efficiencies, improve performance and support growth.

Our main goal is to keep our clients out of harms way!

 

 

Whole Foods Hit With a Class Action Suit Over Background Checks

A lawsuit was filed on February 7, 2014, by the U.S. District Court in Oakland, California, against Whole Foods Market for violating the FCRA by using an invalid authorization form to get permission from applicants to perform a background check in the hiring process.  The lawsuit charges that the Whole Foods FCRA authorization form contained language releasing those who obtain or provide consumer reports from all liability.  This is in direct violation of the FCRA’s requirement that the authorization form should only contain the required disclosures and the requested authorization. (The other requirement by the FCRA is that the authorization form must be executed and signed by the applicant prior to conducting a background check.)

 

In addition to the release of liability verbiage, the form contained other extraneous verbiage, including an acknowledgement that the application for employment does not create an employment contract, a statement that the applicant waives the receipt of a copy of any public record, and an admission that the applicant has not knowingly withheld any information.

 

The lawsuit purportedly involves thousands of individuals and seeks damages of up to $1,000 for each individual from whom Whole Foods obtained a consumer report without valid authorization, plus punitive damages and costs. The invalid authorization form has been used by Whole Foods since 2009.

 

Employers, in order to avoid a costly lawsuit, make sure you are compliant. If you have not already done so, it’s time to review your hiring process and documentation with your legal counsel to ensure compliance with the Fair Credit Reporting Act (and don’t forget the EEOC Guidelines).

 

Also, check with your employment screening provider about solutions to stay compliant.

CARCO GROUP, INC. AND ITS DRIVER IQ DIVISION CONTINUE TO BE ACCREDITED BY THE BACKGROUND SCREENING CREDENTIALING COUNCIL

CARCO Group, Inc. is pleased to announce the completion of their three-year Interim Surveillance Audit for the Background Screening Agency Accreditation Program with The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC).  CARCO and its Driver IQ Division have successfully demonstrated through a desk audit continued compliance with the Background Screening Agency Accreditation Program (BSAAP)’s Accreditation Standards and will continue to be formally recognized as BSCC-Accredited.

 

Each year, U.S. employers, organizations and governmental agencies request millions of consumer reports to assist with critical business decisions involving background screening.  Background screening reports, which are categorized as consumer reports, are currently regulated at both the federal and state level.

 

Since its inception, NAPBS has maintained that there is a strong need for a singular, cohesive industry standard and, therefore, created the BSAAP.  Governed by a strict professional standard of specified requirements and measurements, the BSAAP is becoming a widely recognized seal of achievement that brings national recognition to background screening organizations (also referred to as Consumer Reporting Agencies).  This recognition will stand as the industry “seal,” representing a

background screening organization’s commitment to establishing written policies, documented procedures and auditable business practices reflecting industry excellence, accountability, professional standards and continued institutional improvement.

 

The BSAAP is overseen by an independently operating body appointed by the Board of NAPBS and referred to as the Background Screening Credentialing Council.   The BSCC currently oversees the accreditation process using a third-party auditor and blind audit procedures.   Once an organization has established through a desk audit and on-site audit their compliance with the BSAAP Standards for Accreditation, accreditation is granted.  Every accredited entity is required to undergo a three-year Interim Surveillance desk audit in order to maintain their accreditation status.   On-site audits and reviews take place every six years or in the event of a change of circumstances requiring re-consideration of their audit status.   To learn more about the BSCC or the BSAAP accreditation program, visit http://www.napbs.com.

 

About CARCO Group, Inc.

CARCO is an HR technology and paperless workflow solutions company. Started in 1977 as a background screening company, CARCO has evolved to become a full-service HR partner, helping clients manage their new hire process in standalone solutions or integrated with their Applicant Tracking System. CARCO’s Onboarding Solution eliminates paper processes and ensures efficient and compliant hiring. Full-service offerings include background screening products, electronic I-9/E-Verify processes, vendor screening, and drug testing. For more information, visit www.carcogroup.com.

 

About NAPBS®

Founded in 2003 as a not-for-profit trade association, the National Association of Professional Background Screeners (NAPBS) represents the interests of more than 700 member companies around the world that offer tenant, employment and background screening.  NAPBS provides relevant programs and training aimed at empowering members to better serve clients and maintain standards of excellence in the background screening industry, and presents a unified voice in the development of national, state and local regulations. For more information, visit www.napbs.com.