One of the most important parts of the NAPBS Mid-Year Conference is the final day when dozens of members go to Capitol Hill to talk to lawmakers. This year, more than 50 of us made the trip armed with several items to discuss. While our topics might seem specific to background screening providers, they actually affect a whole spectrum of industries that use screening to protect their employees and the people they serve. This time on the Hill gives us the chance to lobby for you - our customers. The ideas we share with the decision makers will go a long way to make sure you are able to get the most out of your background screening efforts.
At the beginning of this year’s Advocacy Day we were divided into small groups based on where we live. My group visited the offices of Senators Bob Casey (D) and Pat Toomey (R) of Pennsylvania and Senator Ben Cardin (D) of Maryland. Just being on Capitol Hill is exhilarating, and the chance to actually enlighten people on something so important is terribly exciting…if not a bit intimidating! Unfortunately we didn’t get to sit down with the Senators themselves, just their staffers. Even so, there seemed to be a good amount of interest in the two main items in our message.
First, we discussed the importance of House Bill 548, sponsored by Michigan Representative Tim Walberg (R). If passed, this bill would help employers who find themselves trapped between local laws that prohibit employing people with specific criminal convictions for certain positions and federal EEOC rules that put them at risk for disparate impact claims. For example, many states require home healthcare workers to pass a criminal background check before being allowed to work with vulnerable populations. Under those local laws, certain offenses automatically knock you out of the running for a job. The EEOC, on the other hand, strongly recommends employers assess each person’s record individually to see if their criminal history would really affect their ability to perform the job. This “individualized assessment,” as the EEOC calls it, is completely counter to what the local law requires. If fewer minorities are hired as a result of the local laws, the EEOC can slap the employer with a lawsuit claiming the background checks are causing certain groups - men, blacks and Hispanics - to lose job opportunities because statistically they have higher rates of criminal convictions. This is what’s known as disparate impact.
These employers have no recourse. They are literally trapped in between the law and the EEOC. If just one of the lawmakers we addressed agrees to co-sponsor this bill, there will be a chance to end this legal catch-22.
Our second important point was to explain why any new legislation that requires criminal background screening should not just specify a check of the “FBI Fingerprint Database.” Instead, we urged lawmakers to include wording that would allow the option of doing a traditional background check through a Consumer Reporting Agency (CRA).
If you’ve been following our blog, you know that just searching the FBI Fingerprint Database might not give you an accurate picture of your applicant. The database is notoriously incomplete. It depends on local jurisdictions to report final outcomes of cases, and more often than not, those never come.
In addition to that, it is nearly impossible for an applicant to dispute an incorrect record when an employer or agency just searches the FBI database. We explained to the staffers that when you use a Consumer Reporting Agency like EBI applicants are protected by the Fair Credit Reporting Act (FCRA). We tackled this point last year, and it was really interesting to see how many people still believe the FBI database is the gold standard when it comes to background checks.
As you know, government moves like molasses. At times that can be a good thing, but it also means these changes will not happen quickly. That said, we will continue to lobby and try to educate members of the House and the Senate. The issues we present are important to employers and to consumers and have very little downside. Although progress is slower than we would like, we are seeing positive movement and will continue with this important work.
Employment Background Investigations is a technology driven leader in domestic and global pre-employment background checks, drug testing, occupational health screening and I-9 compliance. We specialize in development, implementation and management of customized employment screening programs for large and multi-national clients. We are dedicated to information security. EBI is the only NAPBS Accredited background screening company in the world to hold both an ISO 27001:2005 certification for information security and an ISO 9001:2008 certification for Quality Management.
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