HR4U

Hiring is a difficult and costly process. You look at resumes and applications, you interview a few times, you check some references (maybe) and now you’re ready to hire. In California, once you make a job offer, it is difficult to rescind it. Why not take one extra step and conduct a professional background check using “third party” reporting agency that specializes in these investigations just to make sure everything you were told is accurate and truthful.

Third Party Background checks in California are regulated by federal and state law and are subject to specific legal requirements. The federal Fair Credit Reporting Act (FCRA) regulates “consumer reports” and “investigative consumer reports.” Investigative consumer reports will contain personal interviews of friends and neighbors that go beyond simply verifying facts and dates.
Under the FCRA, “consumer reports” include:
• Credit checks.
• Criminal record history.
• Verification of education.
• Other related information.

If you use a reporting agency to conduct either type of background investigation you must follow rigorous notice and disclosure rules. You must make appropriate disclosures to the applicant before obtaining a report from the reporting agency.

The disclosure must be in writing and contain the following information:
• A statement that a background check may be obtained for employment purposes.
• The purpose of the report.
• A statement that the report may include information about the individual’s character, general reputation, personal characteristics, mode of living, creditworthiness and credit standing.
• How to contact the reporting agency conducting the investigation.
• The nature and scope of the investigation, including a summary of the individual’s rights under the FCRA.

If the background check will include personal interviews, you must provide the applicant with a summary of FCRA rights (a copy of which is available on the Federal Trade Commission’s web site at www.ftc.gov ). You must include this information in a stand-alone document and not as part of the employment application or other document.

You must obtain written consent to conduct the background check and provide a “check box” on the disclosure form or elsewhere so the applicant may request a copy of the report. If requested, a copy of the report generally must be provided by you within three days of its receipt. However, if you are obtaining a consumer credit report, the applicant must receive a copy of the report at the same time it is sent to you. You can generally arrange for the reporting agency to provide the copy.

Finally, you must certify to the reporting agency that it has complied with the notice and disclosure requirements and is obtaining the report for a permissible purpose.

Under the FCRA, if you intend to take some form of adverse action against the applicant based on the report, you must provide the applicant or employee with a copy of the report and a summary of rights. Then the applicant may provide information to dispute the report.

Under state and federal law, if you proceed with the adverse action, you must provide the applicant with:
• An adverse action notice.
• Information on how to contact the reporting agency.
• A statement that the decision to take an adverse action was based on information in the report.
• Information on how to obtain a free copy of the report.
• A summary of rights under both state and federal law.

Moreover, if you take an adverse action (e.g., refusing to hire an applicant) based on the information uncovered by the reporting agency during a public records search must provide a copy of the public records to the applicant, even if the individual initially waived his or her right to receive one.
Your reporting agency should be able to supply you with all the required disclosure and reporting forms and to protect yourself from potential liability, you should get confirmation in writing from the reporting agency you are using that it and all the forms it uses comply with both state and federal laws.
Finally, if you make an offer of employment before you have the completed background check (as is often the case), it should be made clear to the applicant that this is a contingent offer based on the successful completion of your background investigation.

FMLA update
According to a just issued EEOC private letter ruling, employers cannot put absolute time requirements as to how soon an employee must notify them when they go on leave. In short, when it is not possible to give 30 days’ advance notice, employees must comply with their employers’ internal policies and procedures for requesting leave, as long as it is practicable to do so. Therefore; if an employee has a good reason for not giving notice in accordance with your policies, you should not be taking any negative action against the employee.

DOL’s 2010 Budget
The Department of Labor (DOL’s) proposed budget is requesting to hire approximately 670 new investigators, restoring worker protection staffing to FY 2001 levels. Of the 670, the Wage and Hour Division is expecting to hire 200 new investigators, OSHA, 160 new investigators, and the OFCCP, 213 investigators. Employers need to take steps now to ensure they are in compliance with all applicable federal regulations governing the workplace.

Immigration Law Enforcement
The Department of Homeland Security (DHS) recently issued a press release stating that the agency intends to shift the focus of its worksite enforcement strategy away from illegal workers and towards the criminal prosecution of employers who knowingly hire them.

As a result of this shift in DHS’s priorities regarding worksite enforcement, employers should ensure that they have appropriate documentation for current employees and those employers lawfully prepare and maintain the Form I-9, Employment Eligibility Verification, for all newly hired employees. Employers should review their immigration compliance procedures, which should include:
• Regularly scheduled in-house audits of I-9 records to ensure proper completion and retention and to correct any discrepancies
• Ongoing training of human resources professionals involved in the I-9 process
• A procedure for appropriately responding to a Social Security No Match letter, a DHS Notice of Suspect Documents, or other evidence indicating that they might have “constructive knowledge” that a certain worker does not have work authorization.

Employee Free Choice Act
Some potential good news, at last. Recently, President Obama pronounced that the “card check” is dead, saying that the current Employee Free Choice Act didn’t have the votes to pass but that a “compromise” could work. By compromise, the president meant a version of the bill without card check, the provision obliging employers to recognize unions after a majority of workers have signed cards, rather than after an election.

Federal Contractor E-Verify Rule Delayed Until September 8, 2009
The effective date of the Federal Contractor E-Verify Rule has been postponed once again. The new implementation date is now scheduled to be September 8, 2009 (extended from the most recent scheduled implementation date of June 30, 2009).

The rule requires federal contractors with contracts for services or construction over $100,000 and a performance period over 120 days, to use E-Verify for all newly hired employees and also for current employees working on the contract. It was originally due to take effect on January 15, 2009, but has been postponed several times to allow President Obama’s administration time to review the rule.