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 Information, Tips and News
June 2012

As we move into the autumn season, it is a great time to focus on a few updates in the employment screening industry. 

We have included a great question & answer article reviewing the EEOC guidelines, as well as a side bar reminder about updating the Disclosure and Release form to stay in compliance with State and Federal guidelines. 

Along with our updates, we have included a brief section on the basics of the Fair Credit Reporting Act, as it can never be reviewed enough! We hope this information is helpful to you.

Please contact us with any questions.
Phone: 888-833-5304


By the Way, Are You a Criminal?
By Matthew Korn, Fisher Phillips

The EEOC's Guidance outlines the agency's position on criminal-background-check policies, but leaves many important questions unanswered. Understanding that the Guidance is not law, but only the EEOC's interpretation of the law, you should keep several issues in mind when hiring.
Can I ask about criminal history on my application?
The EEOC recommends that employers not ask about convictions on job applications. But, if employers do ask, the Commission recommends asking only about convictions that are job related and consistent with business necessity. Your approach should include language indicating that not all convictions will bar employment and you should consider providing a space for the applicant to explain the conviction. Additionally, many states have required language for applications and some may prohibit such inquiries.
When should I run a criminal-background check?
It depends.Recognizing that this is impractical for many employers, due to the risk of negligent hiring, retention, or supervision claims, among other related issues, you should consider at what stage of your hiring process to run criminal-background checks.
The most conservative approach would be to make a contingent offer of employment based on successful completion of the background check, which will impact the least number of applicants. You may also consider waiting until you have identified interviewees, or running the check after excluding applicants who are not minimally qualified or have negative references. Be aware that the earlier in the process you use the background check policy, the number of applicants affected will increase, along with your potential liability.
Can I exclude an applicant based on an arrest?
Probably not. The Guidance is clear that exclusion based solely on an arrest record (without further inquiry) is not acceptable. Many employers are understandably concerned about pending arrests. To consider any arrest, including those pending, requires an independent investigation of the facts.
However, if you perform an independent investigation that confirms the conduct underlying the arrest, and if exclusion of persons committing such acts is job related and consistent with business necessity, you may permissibly exclude the applicant. This may be impractical for many employers - but if you cannot perform the investigation, you should not consider the arrest, at least according to the EEOC.
What does it mean to be "job related and consistent with business necessity?"
It's more complicated than it seems. To determine whether a particular criminal history is job related and consistent with business necessity, you need to consider three factors: 1) the nature and gravity of the offense or conduct, including the harm caused, the specific elements of the crime, and whether it was a felony or misdemeanor; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the job held or sought.
How old can a conviction be in order to be considered relevant?
The EEOC did not provide specific guidance on this question, but instead recommended that employers consider studies and recidivism data to determine the relevance of a particular conviction. Essentially, if an applicant was convicted for petty theft 15 years ago, but has not been convicted of a crime since, that individual may not be statistically more likely to steal than any other applicants. Obviously, the shorter the period of time considered, the more relevant the conviction. But, this must be balanced against your ability to protect your company against theft and negligent hiring, retention, or supervision claims.
How do I evaluate the nature of the job held or sought?
By reviewing your job descriptions. To determine whether a certain offense is job related, you should review the essential functions of each job or classification you use. If you are hiring a delivery driver for your restaurant, you may want to exclude those convicted for driving under the influence. However, if you are hiring a cashier for the same restaurant, a conviction for DUI may not be relevant. Blanket polices for all job descriptions are likely unlawful according to the Guidance.
Should I be writing this down?
Yes. We recommend that you document your efforts to make the considerations described above. If you rely on a particular study or statistic, you should keep a copy with your revised policy. Documenting your efforts will better prepare your company in the event of an investigation or litigation.
Do I have to consider information the applicant provides?
Yes. In almost all cases, you should provide an opportunity for the applicant to provide information that may mitigate the applicant's criminal history and consider such information. Examples of information you may receive include employment references, job history subsequent to the conviction, or facts surrounding the offense.
But be cautious to ensure that your consideration is not different based on race, or any other protected category, as this can lead to a claim of disparate treatment discrimination.
Are there any less discriminatory alternatives to my policy?
This is a question you should ask once you have revised your policy. Your policy, even though revised to be consistent with the Guidance, may still have an adverse impact on minorities. Therefore, you should always consider alternative policies or practices that may reduce this impact. An example may be allowing applicants more time to provide individual information.
What if I must do a check to comply with federal or state law?
Compliance with federal law is a defense, but the EEOC takes the position that Title VII preempts state law and compliance with state requirements is not a defense to liability. If there are federal requirements for your employees, you should consider whether your policy excludes applicants beyond the federal requirement. To the extent you exclude applicants that you are not required to exclude, you may be liable. The EEOC does not provide any answers for employers that are subject to state laws or regulations. If you have more stringent state requirements that apply to your applicants and/or employees, you may wish to seek legal counsel.
I heard that Congress defunded the Guidance, so do I still need to comply?
Yes. A Congressional Committee recently voted to defund the Guidance. This action demonstrates that many groups believe the Guidance may be detrimental to employers. However, even if the Guidance is defunded, the EEOC will likely continue its investigations of criminal-background policies through its enforcement of Title VII. Therefore, we recommend that you still take the time to review your policy, consider revisions, and to be sure you understand the risks if you choose not to follow the Guidance.
More To Come
As you can tell, there are numerous questions left unanswered by the Guidance. Drafting a background check policy that is both consistent with the Guidance and that adequately protects your business can be a frustrating process. Nevertheless, the EEOC intends to increase its enforcement of systemic discrimination over the next few years, and revising your policy now may help minimize your risks if the EEOC decides to investigate your company.
For more information contact the author at [email protected] or (803) 255-0000.
PLEASE NOTE: To read the recently passed EEOC employment screening guidelines  please click here http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm




FCRA Compliance and Adverse Actions

Background Checks 


The Fair Credit Reporting Act (FCRA) can be a daunting document in the screening world. It covers an abundance of regulations and information, most of which pertains to everyday employment screening. The FCRA regularly refers to information obtained by a Consumer Reporting Agency (CRA)such as Occuscreen, also called a 3rd party administrator or background check vendor. The FCRA regulates all information provided by a CRA, not just credit information.  As a CRA, we are constantly striving to comply with the regulations in the  Act, and we think its a good idea  to review the guidelines on a regular basis.


In order to comply with FCRA's basic requirements, employers receiving information from a Consumer Reporting Agency  should take note of the following steps. These steps do not cover the full FCRA requirements for screening, however highlight a few important areas.


Prior to screening:

1. Notify the applicant/employee in writing, on a separate document from the application, that a consumer report may be used for employment purposes.

2. Obtain the applicant/employee's written authorization to obtain the Consumer Report.

This step can be completed with a Disclosure and Release form. Occuscreen, LLC can provide a sample form for you.


If an adverse action may result based on the result of the report:

1. Prior to taking any adverse employment action (which includes a denial of employment or any other decision which adversely affects any current or prospective employee) based in whole or in part on the Consumer Report, employers should also:

1. Provide the applicant/employee with a copy of his or her Consumer Report.

2. Provide the applicant/employee with a description of his or her rights under the FCRA (a copy of a form is on the FCRA website and is provided by Occuscreen as part of the Sample Disclosure Authorization Form). 

This step can also be completed by sending out a Pre-Adverse Action Letter. A sample is provided on the Occuscreen secure website.

3. Allow the applicant/employee reasonable time period to dispute the accuracy of the Consumer Report before any adverse action is taken. (i.e 10 day period)


Once an adverse employment action has been taken, employers must also give the applicant/employee notice:

1. That an adverse employment action has been taken.

2. Information about the CRA who supplied the Consumer Report, a statement that the CRA did not make the adverse action decision, and a statement of the individual's right to dispute the accuracy of the information, as well as his or her right to obtain a free consumer report from the agency.

The Occuscreen secure website provides sample Adverse Action letters, auto-filled with the applicant's and CRA's information.


In addition to the requirements described above, employers should also be aware of the individual state laws in which the company and employees are located, as each state may have additional requirements and protections associated with employee background checks. 


For complete information on the FCRA requirements, please make sure to visit the full FCRA requirements on the FTC website.


Please let us know if you have questions about this information.


 pam[email protected]

Nicotine Testing


If your wellness program requires testing for Nicotine use, Occuscreen can offer you an onsite oral fluids test  which provides results in 10 minutes. The iScreen OFD tests the saliva for Cotinine, the main metabolite of Nicotine. The iScreen OFD test kit is available through Occuscreen, LLC  for $8.00 plus shipping (minimum order 10).




Please contact Occuscreen for more information or to order.  



Please let us know if there are questions or areas of interest you would like us to address in future newsletters, or if you are interested in partnering for employment screening.


Pamela Mack


[email protected]

In This Issue
New EEOC Guidelines
FCRA Compliance
Nicotine Testing
Update Your Disclosure Form

Disclosure Authorization Form Updates


The FCRA requires that you have a signed Disclosure Authorization Form from your applicant, before you can legally proceed with ordering a background check from a Consumer Reporting Agency, like Occuscreen. You are also required to keep this form on file for 5 years.


Occuscreen continually updates our Sample Disclosure Authorization Form to include information for the various states which require additional legal verbiage on the forms (as an alert for applicants).


If you have not updated your form recently, you may want to request a new sample form from Occuscreen, LLC, to make sure you have a current document.


Please email me at [email protected]
for an updated sample disclosure.



Please note our new address:

Occuscreen, LLC 

805 Broadway St, Suite 215

Vancouver, WA  98660

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