Hiring is one of those pieces of work that most of us believe, rightly or wrongly, that we know what we’re doing. Who doesn’t know the difference between someone who has the qualifications to do the job, and someone who is just blowing smoke? We all do – right? … Read More »
We know there are some timeless “best practices” for hiring right that are particularly important when talent pipelines are lean. … Read More »
Question: I have always been willing to spend whatever time it takes to hire right. How can I avoid the downside of that approach in this candidate short marketplace? … Read More »
What a great question! Once you’ve decided that you need to hire, there is always time between when you make that decision and when you actually put a new hire in place. … Read More »
The High Costs of a Bad Hire can be pretty alarming, particularly if you’re working in a tightly competitive marketplace as we have here in the Greater Seattle area. For those of us in the marketplace full time, we know how costly and time consuming it is to find and hire the right employee, and if you end up hiring the wrong employee, there are always significant hard and soft costs involved. Read on to find out some of the ways an employer’s staffing costs will increase if hiring issues get out of control. … Read More »
What we often find is that the interview questions that are the most clever or engaging for both interviewer and interviewee, simply don’t provide the information about candidates that the decision makers need and actually matter to placement success. … Read More »
Hiring has been a priority element of many company’s business plans since the middle of 2014, but employers continue to struggle meeting their staffing goals. Needs for operational, managerial, technical and professional staff are going unfilled for longer and longer periods of time, in many cases having a significant impact on business or service performance. … Read More »
As a leading provider of temporary, contract and direct hire candidates in the greater Seattle area, we regularly work with our customers to shorten the time between point of need and hiring date – an element in the hiring process that often impacts our client’s ability to capitalize on opportunities or drive unnecessary costs out of their staffing process. … Read More »
Your Background Checking Process Is Under Increased Scrutiny….
…..and some employers are already paying the price for processes that don’t line up with Fair Credit Reporting Act (FCRA) regulations.
Last November, staffing company, Aerotek and their parent company Allegis, received notification of a class action suit filed by employees claiming adverse impact stemming from Aerotek’s failure to inform them of the adverse employment action they were taking based on the results of a criminal background check. In this particular case, Aerotek removed an employee from an assignment with United Healthcare based on information obtained in a Criminal Background check obtained ten days after the employee had begun work.
In early April, 2015, Amazon Inc. received a similar notice of a proposed class action suit, accusing them and their staffing agency, Staff Management Solutions (SMX), for a similar issue - in this case failing to provide prospective employees with the results of a criminal background check before making decisions to assign them to an Amazon facility. In the Amazon case, the employee was denied the opportunity to begin work based on the results of a criminal background check that unfortunately contained false information.
Here’s the details:
In November 2013 Gregory Williams filled out an SMX form giving SMX the authority “to obtain his consumer report for employment purposes.” The form stated that if anything was found in the background check that could affect his employment, he would be given a copy of the report in addition to an explanation of his rights under the FCRA to dispute the accuracy of the report. So far so good!
Williams interviewed via SMX for a seasonal job assignment at Amazon on Nov. 30, 2013 and was immediately offered the assignment. He came into the SMX office on Dec. 2, and was told the job would start on Dec. 5, 2013.
In the meantime, SMX initiated a background check which showed that Mr. Williams had a felony conviction for cocaine possession which, according to Amazon rules, “disqualified” Mr. Williams working at Amazon. He was told of this disqualification, but was not given a copy of the adverse report or advised of his rights to contest its accuracy.
Mr. Williams believed this failure to follow FCRA mandates, violated his rights, and he initiated a class action lawsuit on behalf of himself and all applicants similarly treated in the last five years.
As a staffing company we know that background checks are commonly used by many of our client companies – particularly companies doing retail, manufacturing, or proiding healthcare services. We are typically asked to assign or not assign temporary staff to these employers using the same internal policies these client's use to hire (or not hire) candidates for core employment.
We work closely with our clients in all situations involving placement decisions based on background checks, knowing that the EEOC has significant interest in avoiding any situation where there is disparate impact on a protected class of employees based on an unneeded element in the employment process.
Scrutiny under the Fair Credit Reporting Act mandates is a relatively new scenario for us, as until recently most of the FCRA based lawsuits have been based on some overlooked technical aspet of the law. For example, FCRA requires that the authorization to do a background check be “clear and conspicuous” - it must stand out from the rest of the application process. In the last 3 years, class action lawsuits have been filed against Whole Foods, Publix, Chuck E. Cheese, and Panera because their disclosure forms did not meet the stand alone requirement - in our minds a bit of a nit picky issue, easily fixed by keeping the "disclosure notices" separate from the application form.
The Aeroteck, Allegis, Amazon and SMX lawsuits on the other hand appear to go beyond technicalities and are signaling a new landscape in how the disclosure components of FCRA laws are likely to be enforced on the go forward.
Current Recommendations to PACE Clients…..
1. Make sure that in your application process, your disclosures and authorization documents are stand alone documents. Don’t intermingle these documents with your application form or other employment related documents.
2. Check out the full scope of your legal responsibilities under BOTH EEOC and FCRA requirements. Here’s the link to the EEOC website that discusses the employers role in conducting background checks http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm
3. In your service agreements with staffing vendors, state clearly who will be conducting a background check and describe how you want that information used. Keep in mind that if an employee is denied the opportunity to be assigned to your company based on information discovered in a background check conducted by your staffing agency, both you and your staffing company are subject to claims of unlawful adverse impact. You cannot ask your staffing agency to make employment decisions on your behalf that are not legally defensible.
4. Make sure your staffing agency as a matter of policy and practice are complying with all FCRA administrative requirements
a. Find out if they are informing candidates of the possibility that an investigative report will be conducted and how it will be used - in particularly make sure they indicate there could be "adverse action" taken based on the discoveries.
b. Find out how they are informing candidates of an adverse action and their internal procedures for handling those scenarios. By law they are required to disclose the adverse report, provide a statement of the candidate’s rights to contest the accuracy of an investigative report, and instruction on how to contest that information . You need to make sure that your staffing agency follows all these steps.
5. Re-review any “across the board” policies regarding how candidates will be handled based on background check discoveries. “No arrest" policies are specifically precluded. “No felony” policies are suspect. Both you and your staffing agency are accountable to ensure that all employment actions are made in ways that do not discriminate against any class of protected class candidates based on factors unrelated to actual job performance.
This article was written by Jeanne Knutzen, the CEO and Founder of the PACE Staffing Network, a full service staffing company focused on delivering talent to the Northwest employer community. PACE regularly uses third party professionals to conduct criminal background reports on their client’s behalf and is committed to managing all steps of that process in legally defensible ways – complying with FCRA regs and the spirit and intent of EEOC guidelines.
While we cannot provide you with legal counsel we can provide you with basic information on how to work with your staffing agency on their background check policies and procedures. For personal consult, contact Jeanne at jeannek@pacestaffing.com .
By Karaka Leslie A common policy found in many businesses is a prohibition against the disclosure of wage information. This type of policy serves the purpose of preventing workers from battling with HR and each other over who is getting paid what and why. Keeping wages under wraps also prevents employee jealousy about managerial and executive salaries. After all, if nobody knows how much the CEO is making, then nobody can be upset about it. A non-disclosure policy is particularly useful when employees with the same job descriptions are not being paid the same, keeping in mind there can be many legitimate, nondiscriminatory reasons for wage differences. For example, one employee may have more skills or experience than another. For these reasons and others, non-disclosure policies traditionally have been accepted as the best way to keep all employees happy while respecting employee and employer privacy. However, some are beginning to question whether transparent policies are a more honest way of doing business. Transparent wage policies prevent employees from wondering if the company is hiding information. More importantly, transparent wage policies help employees gain a clear understanding of what they need to do to take their careers to the next level. Still, such policies have an obvious downside. If employees are aware of what everyone else in the office is making, HR, managers, and even executives may begin receiving more demands for pay raises. In the worst-case scenario, employees could threaten or file lawsuits because of real or perceived pay inequities. Transparent wage policies are just beginning to make their way into the corporate world, but they aren't exactly a groundbreaking concept. In fact, government-regulated institutions have publicized their wage information for decades. And private, nonprofit organizations are required to disclose the salaries of key team members on their 990 forms. It seems, then, that private for-profit companies are the last to jump on the transparency bandwagon. Is compensation an equal rights issue? Some activists believe the full disclosure of employee salaries should become the legal standard to protect minority groups. The logic here is pretty straightforward. If employers knew everyone could view salary information, they'd have greater incentive to ensure they were compensating workers in accordance with the law. The argument has some merit, because transparency does foster accountability. OTHER CONSIDERATIONS But perhaps the best reason for an employer to consider adopting a transparent wage policy is that transparency is attractive to employees who value honesty. For companies seeking to create a genuine and productive workforce, therefore, transparent policies seem to be the way to go. This past year, startup company Buffer made the switch from a non-disclosure policy to a transparent wage policy. All Buffer employees are now fully aware of their coworkers' wages, as well as the formula used to determine those wages. Buffer has made their stance on transparent wage policies loud and clear. In fact, they've even gone so far as to post employee wages on the internet for public viewing. Leaders of the company support the notion that transparency leads to trust and therefore a healthy work environment. A transparent policy may not be right for all organizations, but it could definitely be right for some. If your company is considering making the switch, be sure to consult a compensation management professional to get the tools you need to make the transition a smooth one. Karaka Leslie is one of the product managers at PayScale, a compensation data and software company. Karaka started her career as an agency recruiter, helping companies find the best talent. Since then, she has worked with numerous businesses to assist them with building a solid case for good compensation planning. Outside of compensation, she also founded a Community Giving group to help connect professionals to local community organizations focused on education and career services.
