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Getting On BoardBest Practices for Onboarding
Presented by NYSA Industry Partners: Background Screening
Jon Anderson, VP of Business Development and ComplianceeasyBackgrounds Inc.www.easyBackgrounds.com
Employment Law Richard L. Steer, Partner
Tarter Krinsky & Drogin LLPwww.tarterkrinsky.com
Protect and Secure Brenda Steers, President Loveman, Kornreich & Steers, Inc. www.lksinsurance.com
This presentation does not constitute legal advice, but is given for general awareness of the issues discussed.
Jon Anderson, VP of Business Development and Compliance
easyBackgrounds Inc. Newfields, NH 03856www.easyBackgrounds.com800-538-6525
easyBackgrounds is a Consumer Reporting Agency founded in 2002 with pre-employment screening roots gong back to 1995.
We are founding members of the National Association of Professional Background Screeners (NAPBS), NYSY Industry Partners, and active members of the ASA, SIA, and TechServe Alliance.
Disclaimer! We are not lawyers and do not provide legal advice. We recommend you seek advice of legal counsel for all employment law matters.
Background ScreeningFCRA
4 Requirements: Permissible Purpose, Disclosure, Consent, Adverse Action
NY Article 23a 8 factors for determining relationship between
criminal record and positionEEOC
2012 Guidance: Have a written policy in place
Permissible PurposeFCRA Section 604 limits causing a Consumer Report to be created to 10 Permissible Purposes.
Section 604(a)(3)(B). For employment purposes including evaluating a consumer for employment, promotion, reassignment or retention as an employee, where the consumer has given prior written permission.
Disclosure A clear and conspicuous stand-alone disclosure, in a
document consisting solely of the disclosure, has been made in writing to the consumer.
The disclosure satisfied all requirements identified in the Fair Credit Reporting Act and other applicable state laws.
Consent A written and/or electronic consent that includes the
applicant’s written or electronic signature and authorization to conduct a background check.
May be provided along with Disclosure as long as: Separate document Includes ONLY consent for Background Check
Otherwise can be added to other forms, such as applications.
Avoid release of liability language on the Consent.
Adverse Action Prior to taking Adverse Action, you will provide the
Pre-Adverse Action Notice, Summary of Your Rights Under the FCRA, the consumer report on which your decision is being based.
A ‘reasonable period of time’ has passed prior to taking Adverse Action
The subsequent Adverse Action Notice, and communication to the Consumer follow FCRA Section 615, as well as any other Federal, State, local, or other applicable laws.
NY Article 23-A SS 752: “No application for any license or employment, and no
employment or license held by an individual” can be denied based on prior criminal convictions or judgements of “good moral character” based on prior convictions unless:
1) There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
NY Article 23-A §753: Factors to be considered concerning a previous criminal
conviction; presumption. a) The public policy of this state...b) The specific duties and responsibilities related to the license or employment
sought..c) The bearing, if any, the criminal offense or offenses to those duties…d) The time which has elapsed…e) The age of the person at the time of occurrence…f) The seriousness of the offense or offenses….g) Any information produced by the person in regard to his rehabilitation…h) The legitimate interest of the public agency or private employer in protecting
property, and the safety and welfare of specific individuals or the general public.
EEOC Guidance Issued April, 2012 Based on theory of ‘Disparate Impact’ Not a law; Enforced through legal action NY Article 23-A mirrors guidance Value in having a written policy
Employment LawPre-employment interviews and applications
Interviews, applications, medical questionsProtected conduct
Religious accommodations, sexual identity, unemployment, and conviction discrimination
Documenting reasons for failure to hire.
Unlawful Practices (Federal, State and Local Laws)
Discrimination on the basis of: Gender Sex Harassment (including
sexual) Partnership Status Sexual Orientation
Gender Identification or expression
Pregnancy (reasonable accommodations NYC)
Marital Status Civil Union and domestic
partnership status (NJ)
Unlawful Practices (Federal, State and Local Laws)
Discrimination on the basis of: Equal Pay Race (including individuals
associated with employee, NJ) Creed Color National Origin
Ancestry (NJ) Age (including discrimination
against younger workers, NJ) Disability (reasonable
accommodations) Religion (reasonable
accommodations) Alienage
Unlawful Practices (Federal, State and Local Laws)
Citizenship Predisposing genetic conditions (including refusal of genetic
testing or providing genetic information, NJ) Atypical heredity cellular or blood trait (NJ) Veteran Status Service in US Armed Forces (NJ) Retaliation (and CEPA NJ)
Discrimination on the basis of:
Guidance Regarding Pre-Employment Inquiries Permissible Pre-Employment Inquiries
As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job.
You may ask a wide range of questions designed to determine an applicant’s qualifications for a job including questions regarding education, training, experience in similar positions or in the industry and skills for the position sought.
Examples of Impermissible Pre-Employment Inquiries Do not seek information about an applicant’s age, creed, religion, race,
national origin, color, gender identification, sexual orientation, marital status, pregnancy status, disability, military or veteran status, domestic violence victim status, sex. In some places, including New York City, inquiries into unemployment history, credit history, or conviction record may be impermissible.
Do not make inquiries regarding organizations, clubs, societies, of which an applicant may be a member or any other questions which may, directly or indirectly, indicate the applicant’s race, sex, national origin, disability status, age, religion, color, or ancestry, e.g., religious affiliation, days of worship, religious holidays.
Do not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.
Eligibility to work in the US: Do not ask about an applicant’s eligibility to work in the US before making an offer of employment. The offer letter will be contingent upon the issue of eligibility being resolved.
Marital Status and Children: Do not seek information regarding: Whether the applicant is pregnant; Marital status of applicant or whether applicant plans to marry; Number and age of children or future child bearing or adoption plans; and Child care arrangements.
Unemployment Status Do not ask applicants if they are currently employed. Do not indicate that unemployed individuals will not be considered. Do not ask for the identity of an applicant’s present employer.
Credit Checks and Credit History Do not ask applicants if you may run a credit check on them and do not run credit checks on
applicants. Do not ask applicants questions about their credit history.
Credit history includes credit worthiness, credit capacity, and payment history and encompasses credit accounts, credit card debt, items in collections, bankruptcies, judgments, child support obligations, student loans.
Arrest or Conviction Records: Do not ask about arrest or conviction records. If the issue is raised by an applicant, tell them that you are not interested in hearing about those issues. A background check concerning convictions can be run after deciding to present an applicant with a conditional offer of employment if done in accordance with New York City and State law. Further, there are legal notification requirements that maybe required if an applicant is rejected because of their criminal conviction record.
Disability including perceived disability or having a record of a substantially limiting impairment Do not seek information as to whether an applicant has a physical or mental impairment. If it appears that the applicant may have an impairment, do not inquire about their perceived
physical or mental impairment or how the person became disabled (e.g., why applicant uses a wheelchair). However, you can ask how the individual would perform the essential functions of the job.
Do not seek information as to whether the applicant has a history of a physical or mental impairment.
Do not ask about applicant’s prior workers’ compensation history. Retention of applicant files
Retain copies of any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later.
If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
Documentation Always document reasons for not hiring an applicant.
Social Media In general, avoid the temptation to check social media pre-hire. You may end up getting protected
information that could make you liable for a failure to hire.
Protect Yourself:Employment Practices Liability Insurance
Sexual Harassment and Wrongful Termination
DiscriminationRetaliationWage & HourAnd more!
Brenda Steers, President
Loveman, Kornreich & Steers, Inc.2975 Westchester AvenuePurchase, NY [email protected]
LKS has specialized in providing insurance for the staffing industry for over twenty years. Since LKS was founded in 1977 the agency has developed innovative programs using financially sound and competitive carriers on behalf of its many clients.
Brenda joined LKS in 1984 and has been owner since 2007. She and her colleagues have been dealing with the insurance aspects of employment law since this field emerged.
LKS was NYSA’s first industry partner and Brenda currently serves on NYSA’s Board as membership chairman.
Employment Practices Liability
WHY YOU NEED EMPLOYMENT PRACTICES LIABILITY INSURANCE (EPL): A private company is more likely to have an Employment Practices claim
than a General Liability or property claim. 3 out of every 5 employers are sued by former employees 65% of all companies that have ever fired an employee have been hit with
an employment related lawsuit In 2006, the median award for all plaintiff verdicts was over $200,000 Over 40% of all Employment Practices claims are brought against firms
with less than 100 employees
The Top Ten Reasons Why To BuyEmployment Practices Liability (EPL)1. EPL covers not only actual but also alleged acts of discrimination, harassment, retaliation, wrongful termination and
other similar acts.2. 3 out of 5 employers are sued by former employees every year.3. Over 40% of EPL claims are against firms with fewer than 100 employees.4. Some Federal and State employment laws apply to all employers – any size company has exposure!5. The Equal Employment Opportunity Commission (EEOC) recorded nearly 76,000 charges in 2006 and obtained more than
$274 million in settlements for claimants.6. The financial ramifications of not having EPL insurance can be crippling, especially for small firms because they do not
have the operating budgets to handle the defense costs, let alone settlements or judgments, of an uninsured claim.7. The medium cost of an EEOC lawsuit in 2006 exceeded $200,000.8. There is no EPL coverage under other insurance policies such as General Liability (GL). Any endorsement to another
policy generally provides insufficient limits, does not provide the breadth of coverage of a separate EPL policy and erodes the limit available for the GL exposure.
9. Since 1997, wage and hour litigation has tripled. More wage and hour collective/class actions have been filed in recent years than any other types of employment class actions combined.
10. Gender discrimination, age discrimination and retaliation claims are on the rise. There are more women and “baby boomers” in the workplace than ever before. Recent Supreme Court decisions have lowered the standard of what constitutes retaliatory treatment
Employment Practices Liability Product Claim Examples
Discrimination/Wrongful Termination:A female Marketing Manager took leave subject to the Family Medical Leave Act(FMLA) upon the birth of her first child. She was terminated one month after her return to work for poor work performance and the company eliminated her position. There was no documentation of poor performance prior to her FMLA leave.Third Party Liability:A blind customer entered a local grocery store with his guide dog. The manager of the meat/deli department asked the customer to take his dog outside because he thought the dog presented a health hazard. The customer sued for violation of the Americans with Disabilities Act.Internet/Email Liability:An employee who intended to email a pornographic joke to only a single recipient accidentally pressed the wrong button, sending the off-color joke to the company’s entire workforce. The employer made the employee send a follow-up email apologizing to the workforce. Two months later, during a company downsizing, an employee sued for a hostile work environment and used the email as evidence.
Employment Practices Liability Product Claim Examples
Spousal Liability:The president of a company was being threatened with a sexual harassment suit by one of his employees. The president decided to transfer most of his assets into his wife’s name in order to avoid being personally sued and subjecting his personal assets to any possible claim settlement against him. The employee later sued the president for sexual harassment. The suit named both the president and the president’s wife because of her ownership interest in the president’s assets. These assets were later subjected to the settlement provisions.Retaliation:An African American employee of a barge repair and painting firm complained to management that some of his coworkers were using racial slurs and jokes. His supervisor transferred him to an inside warehouse position at a reduced hourly rate stating that it would be better for him to work alone rather than be exposed to those workers. The employee later sued for discrimination and retaliation for reporting the discrimination.This document does not amend, extend or alter the coverage afforded by the Policy. For a complete understanding of any insurance you purchase, you must first read your Policy, Declaration Page and any Endorsements and discuss them with your Broker.
New Americans with Disabilities Act Amendments ActMakes Buying EPL Important For Business Owners! Did you know that on September 25, 2008 President Bush signed into law the Americans with
Disabilities Act Amendments Act of 2008 (ADAAA)? More importantly, do your clients know? The ADAAA significantly broadens the definition of “disability” from the original ADA, increasing the
number of protected employees – and increasing a business owner’s exposure to disability discrimination claims. Key changes include:
Physical or mental impairments controlled by medication or other “mitigating measure” so as not to limit a major life activity are now protected.
Impairments that are episodic or in remission will also be considered disabilities if, when they are manifest, would substantially limit a major life activity, e.g. migraines.
An individual is now “regarded as having an impairment” if the individual “establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
Did you also know that according to the 2008 Jury Verdict Research Report, in 2007: The median disability discrimination award was $217,000? 68% of disability discrimination awards exceeded $100,000? The probability of plaintiff recovery in disability discrimination cases in front of a jury was 65%?
COVERAGE FEATURES
Fair Labor Standards Act (FLSA) –This helps protect employers in the event they are confronted with wage and hour disputes. Duty to Defend – The carrier has an obligation to defend all claims (as
defined by the policy) even if found to be groundless, false or fraudulent.
Full Prior Acts Provides coverage for acts occurring prior to the inception of the policy that result in claims made during the policy period.
Minimize your company’s exposure to large payouts through an EPLI insurance policy.
