Employee Background Checks: Emerging Issues and ...€¦ · A background check might also be...

Track 2 - Session 2

Employee Background

Checks: Emerging Issues

and Recommended

Best Practices

About the Presenters...

Colin B. Good focuses his practice in the areas of employment and labor law, with particular experience in litigating various employment issues in local, state, and federal courts as well as administrative agencies. Attorney Good has a depth of experience litigating tort claims arising from the employment relationship, including discrimination, retaliation, sexual harassment, wrongful termination, whistleblower protection, and employment contracts with restrictive covenants, such as noncompetition, nonsolicitation and trade secrets. Attorney Good has litigated or assisted in the litigation of claims under the Americans with Disabilities Act, Family and Medical Leave Act, Wisconsin Fair Employment Act, and Fair Labor Standards Act, as well as other civil rights and constitutional claims. He has also assisted many employees with the negotiation of severance agreements and the resolution of other workplace matters, enabling them to achieve their goals of terminating or continuing their employment as desired.

Robert K. Sholl is shareholder in the Labor and Employment Department of Reinhart Boerner Van Deuren s.c. He represents management in all aspects of labor and employment law. Mr. Sholl received his A.B. magna cum laude from Dartmouth College, with highest distinction, graduating Phi Beta Kappa. He received his M.A. in industrial relations from the University of Warwick Business School, Coventry, England, and his J.D. from the University of Chicago Law School. He is coauthor of Hiring and Firing in Wisconsin (State Bar of Wisconsin PINNACLE), “Age Discrimination and the Modern Reduction in Force” (Marquette Law Review), and “Plant Closing Legislation,” “Family & Medical Leave Acts: Where Lie the ‘Greater Rights’?,” and “Agreements to Arbitrate Statutory Employment Claims” (all three appearing in the Wisconsin Lawyer).

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Attorney Colin GoodHealth, Labor, and Employment Law Institute

August 20, 2015

SHOULD YOU CONDUCT BACKGROUND CHECKS ?

Background checks can assist employers in identifying strong candidates but can also expose them to potential legal liability.

The advent of websites such as Google, Facebook, and Twitter, combined with government programs such as E‐Verify and Wisconsin Circuit Court Access (commonly referred to as “WCCA” or “CCAP”), have given employers easier access to more background information than ever before.

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PROS: Helps to find an ideal candidate for the job

Protecting your employees, customers, vendors, and business

Preventing claims of negligent hiring, retention, and supervision

In some industries, such as banking and securities, a background check might be required by law.

A background check might also be required by state statutes, such as those for teaching or caregiving


CONS: Background checks can be costly depending on the source and the level of detail requested

The company conducting the background check can make mistakes

The timing of the background check can take too long, threatening your ability to make a competitive offer to a preferred candidate

Requesting specific information can expose employers to legal liability for disparate impact claims based on a protected characteristic under federal and state laws

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Should you conduct background checks on your employees?

• What are the legal limitations on your ability to use criminal background checks?

• What questions can you ask in the application process, and what can you do with the information you receive?

• What strategies should you use in handling arrested/convicted employees?

FEDERAL LAWS

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from refusing to hire any individual because of the individuals’ race, color, religion, sex, or national origin. 42 U.S.C. § 2000e‐2(a). Title VII prohibits both intentional discrimination and practices that are not intended to be discriminatory but in fact have a disproportionately adverse effect on protected‐class members. Id.

Although Title VII does not directly regulate background checks, it does affect how information obtained through a background check may be used in employment decision‐making. Ricci v. DeStefano, 557 U.S. 557 (2009).

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FEDERAL LAWS

Notably, the EEOC has found that the use of criminal‐history checks to screen job applicants may have a disparate impact on African‐Americans and Hispanics because of disproportionate arrest and conviction rates for these groups. U.S. Equal Employment Opportunity Comm’n, Policy Guidance on the Consideration of Arrest Records, Sept. 7, 1990

Disproportionate arrest and conviction rates

With over 2 million individuals currently incarcerated, and over half a million prisoners released each year, the large and growing number of people being processed through the criminal justice system raises important questions about the consequences of this massive institutional intervention.

• In 1991, only 1.8% of the adult population had served time in prison.

• In 2001, the percentage rose to 2.7% (1 in 37 adults).

• By the end of 2007, 3.2% of all adults in the United States were under some form of correctional control involving probation, prison, or jail.

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• The Department of Justice has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the U.S. will serve time in state or federal prisons during their lifetime.

• Arrest and incarceration rates are particularly high for African American and Hispanic men.

• African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.

• About 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men and to 1 in 3 for African American men.

Changes in America’s Custodial Population: 1980‐2008

0

500000

1000000

1500000

2000000

2500000

Jail

Prison

Total

Bureau of Justice Statistics data

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FEDERAL LAWS

EEOC issued fifty‐two pages of guidelines aimed at preventing discrimination based on background checks.

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee.

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ARRESTS

EEOC strongly cautions against the use of arrest records in employment decisions under almost all circumstances, noting that the mere fact that someone has been arrested in the past is insufficient evidence to support a conclusion that the applicant engaged in the conduct in question. (Guidance, pp. 12‐13)

However, EEOC notes that an employer may make an employment decision based on the conduct that led to the arrest if the conduct in question makes the individual unfit for the position in question (Guidance, p. 12)

Given employers’ limited ability to assess information concerning the validity of an arrest and the underlying conduct and EEOC’s skepticism, employers should not rely on arrest records in employment decisions.

FEDERAL LAWS

CONVICTIONS

Employers have greater leeway to consider conviction records because “a record of conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.” (Guidance, p. 13.)

However, the EEOC still imposes specific restrictions on employers with respect to conviction records.

EEOC advises that employers should not ask about criminal conviction history on job applications, but should instead wait and inquire about criminal history in a later stage of the hiring process. (Guidance, pp. 13‐14.)

FEDERAL LAWS

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SCREENING CANDIDATES

In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."

To establish that a criminal conduct exclusion that has a disparate impact is “job related and consistent with business necessity” under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. These factors include:

The nature of the crime

The time elapsed

The nature of the job

FEDERAL LAWS

An employer MUST provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

Provide notice to the individual that s/he has been screened out because of a criminal conviction

An opportunity for the individual to demonstrate that the exclusion should not be applied due to her/his particular circumstance

Consideration by the employer as to whether additional information provided by the individual warrants an exception to the exclusion, indicating it is not job related or consistent with business necessity.

FEDERAL LAWS

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E.E.O.C v. Freeman, 778 F.3d 463 (4th Cir. 2015)

On February 20, 2015, in Equal Employment Opportunity Commission v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed summary judgment in favor of the employer in a case involving a challenge to the employer's use of criminal background and credit history checks in the hiring process.

The EEOC had alleged that the criminal checks had a disparate impact on African American and male applicants, and that the credit checks had a disparate impact on African American job applicants.

FEDERAL LAWS

E.E.O.C. v. Kaplan Higher Ed. Corp. 748 F.3d 749 (6th Cir. 2014)

E.E.O.C. v. Peoplemark, Inc., 732 F.3d 584 (6th Cir. 2013)

FEDERAL LAWS

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WISCONSIN FAIR EMPLOYMENT ACTWis. Stat. § 111.31 – 111.395

Like Title VII, the Wisconsin Fair Employment Act (WFEA) prohibits the use of information obtained through a background check in a way that would have a disparate impact on a protected class.

However, unlike Title VII, the WFEA explicitly prohibits disparate‐treatment discrimination based on an individual's arrest or conviction record.

A Wisconsin employer may not refuse to hire any individual on the basis of his or her arrest or conviction record unless the charges on that record are criminal charges and those charges are substantially related to the circumstances of the job in question.

Furthermore, a Wisconsin employer can never take into account an applicant's prior arrests (other than pending charges) or expunged convictions, even if substantially related to a particular job.

How does the law (Wisconsin Fair Employment Law, Wisconsin Statutes. 111.31‐111.395) define Arrest record?

Arrest record is defined as information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense by any law enforcement or military authority.

How does the law define conviction record?

Conviction record is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.

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Can an employer discharge a current employee because of a pending criminal charge?

No. An employer may, however, suspend an employee, if the offense‐giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.

Can an employer refuse to hire a person because of a record of arrests that did not lead to conviction?

No. An employer is not allowed to ask about arrests, other than pending charges.

What can an employer ask regarding arrest and conviction records?

An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot, legally, make a rule that no persons with conviction records will be employed. Each job and record must be considered individually.

Can an employer refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting?

An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.

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What is meant by substantially related?

The law does not specifically define it. The “substantially related” test looks at the circumstances of an offense, where it happened, when, etc. ‐ compared to the circumstances of a job ‐ where is this job typically done, when, etc. The more similar the circumstances, the more likely it is that a substantial relationship will be found. The legislature has determined that certain convictions are substantially related to employment in child and adult care giving programs regulated by the Department of Health and Family Services.

What if an employer believes a pending charge or conviction is substantially related but the employee or applicant believes it is not?

In this situation, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.

What is meant by substantially related?

The substantial relationship test is an objective test, meaning that the Court will apply the test based on the relevant facts.

The substantial relationship test does not depend on the facts the employer had at the time of decision was made.

The substantial relationship exception may provide a defense, even if the employer did not rely upon it in making its decision.

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Can an employer refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction there?

No. The law makes no provision for this type of problem. The employer must show that the conviction record is substantially related to the particular job. Co‐worker or customer preference is not a consideration.

Is it a violation of the law if the applicant’s conviction record is a part of the reason for not being hired, but not the whole reason?

Yes. A conviction record that is not substantially related to the particular job should be given no consideration in the hiring process.

How should an applicant answer questions on an application regarding conviction record?

It is best to answer all questions on an application as honestly and fully as possible, and to offer to explain the circumstances of the conviction to the employer.

Should an employer ask about the circumstances of a conviction during an interview?

Yes. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.

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RAMIFICATIONS FOR WISCONSIN EMPLOYERS

Preemption: The EEOC included an express statement in its guidance document that made clear that federal law – and the EEOC’s interpretation of federal law – preempts any state law.

Thus, even if an employer complies with Wisconsin law regarding arrests and convictions, the employer must still comply with federal law as well.

Timing: The EEOC indicated that consideration of the time that has elapsed since a conviction or conduct leading to an arrest is a significant factor in determining whether there is discrimination on the part of the employer.

Under Wisconsin law, the period of time that elapsed since an offense is not relevant to “substantial relationship” analysis.


Assessment: Under the federal enforcement guidelines, employers are required to conduct and individualized assessment of the individual and his/her conviction record.

Under Wisconsin law, no such assessment is necessary

Applicant Input: The EEOC is apparently requiring employers to provide an opportunity for the individual applicant or employee to be heard on the details of the arrest or conviction; the age of the individual at the time of the offense; and any rehabilitation efforts.

Substantial relationship vs. J

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Substantial relationship vs. “Job Related and Consistent With Business Necessity”

As long as arrest and conviction records are not job related and consistent with business necessity, those records may be used as a determining factor under federal law.

This analysis by the EEOC is, essentially, no different than the “substantially related” test under the WFEA

BEST PRACTICES IN WISCONSIN

Do not request disclosure of all arrests, only arrests for which there is a pending charge.

Make clear that arrests and convictions will only be considered if they are substantially related to the job.

Conduct an independent investigation if an employee has committed an offense. Onalaska v. LIRC, 120 Wis.2d 363 (Ct. App. 1984).

Objective attendance policies or point systems can be enforced against an individual who has been arrested pending charges.

The most severe action an employer can take with a current employee who is arrested is to suspend the employee without pay or benefits if charge is substantially related. Maline v. Wisconsin Bell, ERD Case No. 8751378 (LIRC, Oct. 30, 1989)

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15 U.S.C. § 1681, governs the assembly and disclosure of personal credit information.

• The FCRA applies to employers who utilize third parties to collect information on applicants/employees for a fee

• Disclosure and notice requirements

• Definition of “Consumer Report”

• Broad definition of “investigative consumer report”

• Permitted uses

Consumer Report – Section 603(d)

• Any written, oral or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for employment purposes (among other things)

• These include public records information, drug lab reports, driving records checks

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Consumer Reporting Agency – Section 603(f)

• Any person who, for monetary fees, dues, or on a cooperative non‐profit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information on consumers for the purpose of furnishing consumer reports to third parties.

• These include public records information, drug lab reports, driving records checks

Investigative Consumer Report – Section 603(a)

• A consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends or associates of the consumer reported on.

• Personal interviews, performing own reference checks.

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Employment Purposes – Section 603(h)

• Means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment, or retention as an employee

Adverse Action – Section 603(k)

• As related to employment, means “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.”

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Background Checks: When Does the FCRA Apply?

• The FCRA applies to consumer reports prepared for an employer by an outside screening company.

• When a third party compiles a report, the FCRA requires:• That the employee/applicant is notified that an investigation

may be performed;• That he/she is given the opportunity to consent; and• That he/she is notified if information in the report is used to

make an “adverse decision”

Pre‐Adverse Action

Before taking any adverse action, the employer must give the individual with a copy of the consumer report that the employer relied on and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” (15 U.S.C. § 1681b(b)(3).)This advance notice requirement allows an applicant or employee an opportunity to review the report in case the information is incorrect.FCRA does not specify how long an employer must wait between obtaining a report and taking an adverse employment action, but the Federal Trade Commission has found that waiting five business days after supplying the required notice to the employee before taking an adverse employment action is reasonable. Once this review and dispute period has passed, the employer can take the adverse employment action.

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Adverse Action Notice

If the employer takes any adverse action against an individual based in whole or in part on information contained in a consumer report, the employer must provide the individual with:Notice that the employer took an adverse action against the individual (e.g., rejected their employment) because of information in the consumer report;Contact information for the consumer reporting agency that provided the report, including name, address, and phone number;A statement that the consumer reporting agency did not make the adverse employment decision and cannot provide the individual with specific information about the reasons underlying the adverse employment action.

Adverse Action Notice

Notice of the individual’s right to request and obtain another free copy of the consumer report from the consumer reporting agency and to dispute the completeness and/or accuracy of the report’s contents (15 U.S.C. § 1681b(b)(3)); andIf the individual’s credit score was involved in the adverse action, a written or electronic disclosure notice of:the individual’s current credit score;the range of possible credit scores;the key factors that adversely affected the individual’s credit score (not more than 4 factors);the date the credit score was created andthe name of the person or entity that provided the credit score (15 U.S.C. § 1681m(a)).

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Confidentiality and Penalties

When disposing of background check information, employers must take reasonable steps to prevent unauthorized access and use, such as:Burning, chopping, or shredding information on paper;Erasing information stored electronically; orRetaining a qualified professional experienced in record destruction FCRA authorizes both a private right of action brought by an individual and an enforcement action brought by the federal government. (See 15 U.S.C. § 1681s.)Damages for individual claims are capped at $1,000 for each violation, but can grow if a court assesses attorneys’ fees, court costs or punitive damages. (15 U.S.C. § 1681n.)Civil penalties for FCRA violations in actions brought by the government are currently set at $3,500 for each violation. (15 U.S.C. §1681s.)

• A CRA may report all of your convictions indefinitely;

however,

• It may not report records of arrests that did not result in conviction, if the arrests occurred more than seven years prior to the release of the report.

• The seven year rule applies to other adverse information as well.

• Note that it does not apply to individuals who will earn $75,000 or more annually.

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• If you applied by mail, telephone or computer, then the employer who takes an “adverse action” against you must, within 3 business days, provide the following information:

1. That the adverse action has been taken based, in whole or in part, on a consumer report

2. The name, address and phone number of the company that supplied the background information;

3. A statement that the company that supplied the information did not make the decision to take adverse action and can’t give you any specific reasons for it; and

4. A notice of your rights to a free copy of the report within 60 days and to dispute with the company the accuracy or completeness of the information.

• If you applied by mail, telephone or computer, then the employer who takes an “adverse action” against you must, within 3 business days, provide the following information:

1. That the adverse action has been taken based, in whole or in part, on a consumer report

2. The name, address and phone number of the company that supplied the background information;

3. A statement that the company that supplied the information did not make the decision to take adverse action and can’t give you any specific reasons for it; and

4. A notice of your rights to a free copy of the report within 60 days and to dispute with the company the accuracy or completeness of the information.

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• Order a copy of your credit report

• If the report contains something you do not recognize or that you disagree with, dispute the information with the creditor and/or credit bureau before you have to explain it to the interviewer.

• Although laws like the Fair Credit Reporting Act ensure applicants are judged on their merits, not an inaccurate credit score, requesting your credit report and correcting any inaccuracies can help stem the issue before a prospective employer finds it and uses it to screen you out.

• Check Court Records

• If you have an arrest or conviction record or have been involved in court cases, check the Consolidated Court Automation Programs, also known as “CCAP” or “WCCA”, and ensure the information is correct and accurate. You may also consider going to the city or county where the crime took place and inspect the files to ensure everything is correct. In some limited circumstances, applicants will want to ensure that their criminal case was properly expunged from all public records. Wisconsin law allows a judge to “expunge” a case in a limited number of situations, such as certain crimes committed by a person under 25, victims of human trafficking, and adjudication of a juvenile delinquent. An expunged case is sealed by the clerk of court and may be viewed only with a court order. Any reference to it should be removed from WCCA, so applicants should be sure to follow‐up if a court has agreed to expunge their record

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• Check DMV Records

• Request a copy of your driving record from the Department of Motor Vehicles, especially if you are applying for a job that involves driving. It is important to note that, in most instances, a DWI is a civil forfeiture and need not be reported as an arrest or conviction by job applicants. Many employers may look upon your failure to recognize it as such as an act of dishonesty, however. We encourage applicants to be as forthcoming as possible while filling‐out their applications.

• Do Your Own Background Checks

• If you want to see what an employer’s background check might uncover, hire a background screening company that specializes in such reports to conduct one for you. That way, you can discover if the databases of information vendors contain erroneous or misleading information. You can use one of the many online search services to find out what an employer would learn if conducting a background check in this way. Hawks Quindel, S.C. makes no recommendations regarding what background services to use and applicants should be leery of background screening companies that engage in fraudulent activities

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• Eliminate Provocative Digital Fingerprint

• Clean up your “digital dirt.” Many of us enjoy using social networking websites, such as Facebook, Instagram, or Twitter, as a way of staying connected with friends and family. Unfortunately, some of our friends and family—and occasionally ourselves—may post and/or tag unflattering or provocative references or images of us without our permission. As such, you should conduct a search of your name—in quotation marks—in the major search engines such as Google and Yahoo. If you find unflattering references, especially images, contact the website to learn if and how you can remove them. If you have written blog articles, you may wish to revisit them in case editing or eliminating the entries might be prudent.

• You can also monitor the web for new mentions of your name by setting up a Google Alert, which sends you email updates of the latest Google results mentioning your name

• You have a right to copies of your personnel records.

• Employer must provide the information within seven working days

• The statute permits two requests per year

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WISCONSIN CAREGIVER LAW

©2015 All Rights ReservedReinhart Boerner Van Deuren s.c.

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Background• Wis. Stat. § 50.065• Designed to address the potential for physical, emotional, and

financial abuse of vulnerable citizens by persons who have been convicted of serious crimes or have a history of improper behavior

• Under the law, covered entities must conduct background checks on certain job applicants, and must conduct background checks on certain employees every four years

• The law also requires the reporting of allegations of abuse, neglect, or misappropriation of client property– Today, we are focusing on the background check portion

of the law


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Covered Entities• A "facility, organization or service that is licensed or certified by or

registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services." Wis. Stat. § 50.065(1)(c)

• Includes:– hospitals– home health agencies– hospices and nursing homes– residential care apartment complexes

• Excludes: sheltered workshops, adult day services, emergency medical care services, among others


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Caregivers• A caregiver is a person who:

– is employed by or is under contract with a covered entity– has regular, direct contact with the entity's clients or the personal property

of clients– is under the entity's control

• Includes owners and administrators of covered entities, whether or not they have regular, direct contact with clients

• Includes board members and corporate officers who have regular, direct contact with clients

• Includes independent contractors• May include volunteers• May include students completing internships or clinical training • What is "regular, direct contact?" What is "under the entity's control?"


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Background Check Process• If prospective employee is a "caregiver:"

– Have individual complete the Background Information Disclosure ("BID") form

– Verify the information on the BID by completing a Wisconsin Criminal History Record Request and sending to the Wisconsin Department of Justice, Crime Information Division• Check the "Caregiver-General" box on the request form

– If prospective employee is credentialed, complete a status check with the Wisconsin Department of Safety and Professional Services

– Out-of-state record search– Military discharge papers


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What Happens Next?• Persons with "clean" BID may be allowed to work up to 60 days, under

supervision, pending the receipt of the records check results– What is a "clean" BID?

• The entity will receive two responses:– A response from the Department of Justice

• "No record found" response OR criminal record transcript– A response from the Department of Health Services (DHS)

• "Response to Caregiver Background Check" letter (or IBIS letter) that reports the individual's administrative finding or licensing restriction status


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Once Background Check Complete…

• Entities are prohibited from hiring or contracting with any individual who:– has ben convicted of a serious crime substantially related to client

care;– has been found to have neglected or abused any client or child,

or misappropriated any client's property; or– is required to have a Department of Regulation and Licensing

credential, but has one that is not current or is so limited as to restrict the individual from providing adequate care to clients

• However…


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Rehabilitation Review• Wisconsin has provided that conviction for these, and certain other, offenses

prohibits employment as a caregiver unless the person is approved through the Rehabilitation Review process

• DHS has a complete list of the offenses subject to Rehabilitation Review• Some of these offenses include:

– First and second degree intentional homicide– Felony murder– Sexual assault (first, second, and third degree)– Assisting suicide– Battery; substantial battery; aggravated battery (felony)– Abuse of individuals at risk– First degree reckless homicide


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Required Personnel Policy• Staff self-reporting requirement• A covered entity must include in its personnel or operational policies a

provision requiring employees, independent contractors, or non-client residents to notify the entity as soon as possible (but no later than the next working day) if any of the following occurs:– The individual was convicted of a crime– The individual was or is being investigated by any governmental

agency for any act, offense, or omission– The individual has a substantiated finding of abuse, neglect, or

misappropriation– The individual has been denied a license or had their license

restricted or limited


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Record Retention• Entities must maintain background check documents for each

caregiver (and must redo background checks on caregivers every four years)

• Records must be readily available to DQA staff upon request


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Sanctions• Entities that fail to adhere to the Caregiver Law may be subject to sanctions

– Hiring, employing, or contracting with a caregiver when entity knew or should have known that the individual was barred from doing so

– Violating any provision of the initial or periodic background check process• Sanctions that may be imposed include:

– A forfeiture not to exceed $1,000– Submission of written corrective action plan– Attendance at agency-designated personnel screening training – Limitations or conditions placed on entity's license, certification, or

registration, including denial, revocation, or suspension– Requirement that entity use temporary employment agency for screening

and hiring personnel


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Compliance Tips


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WISCONSIN SOCIAL MEDIA PROTECTION ACT


Background• Wis. Stat. § 995.55• Limits employer access to employee/applicant

personal social media sites• Effective since April 10, 2014• Wisconsin is the 13th state to enact legislation

– Wisconsin's law is broader than most– Today's focus is on the employer portion of law


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Coverage• Employers

– Both public and private employers– Low employee count threshold:

• "Any person engaging in any activity, enterprise or business employing at least one individual"

– Landlords– Educational institutions


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Protected Information• Two key definitions• "Personal Internet Account"

– "Internet-based account that is created and used by an individual exclusively for purposes of personal communication"• Query: Exclusive use? Personal communication?

• "Access Information"– "User name and password or any other security information

that protects access to a personal Internet account"


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Employer Prohibitions• Two main restrictions

– Forced access to personal Internet account(s)• Cannot "[r]equest or require an employee or applicant . . ., as a

condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account"

– Discrimination/retaliation• Cannot refuse to hire, discharge or otherwise discriminate

against because applicant/employee refused to provide access or observation of personal Internet account or because applicant/employee opposed a practice prohibited by the Act


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Permitted Employer Actions• Viewing or accessing public domain social media information• Mandating disclosure of information needed to access (or operate)

an employer-provided (or employer-funded) device, account or service

• Connecting with employees on social media, at employee's election• Restricting access to certain Internet sites on employer-provided (or

paid for) electronic communication systems or devices• Requiring employee to disclose his/her personal e-mail address• Disciplining employee for the unauthorized transfer of employer's

proprietary or confidential information, or financial data to the employee's personal Internet account, without employer authorization

• Monitoring/screening mandated by state/federal law


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Permitted Employer Actions (cont.)

• The "investigation" exception – Employer may require employee to grant access to, or allow

observation of, the employee's personal Internet account in connection with employer investigation into employment-related misconduct, violation of law, violation of employer work rules, or the unauthorized transfer of the employer's proprietary or confidential information, or financial data• Limited to access, or review or observation• Still cannot require employee to provide "access information"

– Employer must have "reasonable cause" (1) that such misconduct, violation, or unauthorized transfer occurred, and (2) that such misconduct or violation is related to activity on the employee's personal Internet account• What is "reasonable cause?" How established?


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Permitted Employer Actions (cont.)

• No duty to monitor personal Internet accounts• Immunity if employer does not require disclosure of

"access information" for, or demand access to, personal Internet accounts

• Obtaining access information incidentally through employer network monitoring– No liability if not used to access an employee's

personal Internet account


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8/17/2015

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Enforcement and Penalties• Enforced by Equal Rights Division of the Wisconsin Department

of Workforce Development• Same complaint/charge/investigation/hearing procedure as

employment discrimination claims brought under Wisconsin Fair Employment Act

• 300-day statute of limitations for claims against employers• "Make-whole" relief

– Back/front pay, attorneys' fees, costs• Forfeiture

– Up to $1,000 per violation


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Compliance Tips• If you currently review applicant social media accounts as part

of your hiring practices, review those practices for compliance with this new law

• Train your supervisors and HR staff• Be aware of other employment laws that may limit the use of

information gleaned from social media in employment decisions (e.g., WFEA, ADA, ADEA, Title VII, NLRA, etc.)

• Document your "reasonable cause"• Be consistent with how you use social media information

– Perform the same investigation on each applicant (consider written procedure designating who performs search/which sites)


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8/17/2015

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Compliance Tips (cont.)• Use a middleman

– Designate employee not involved in the hiring process to search public domain social media sites/filter out any information regarding membership in any protected class

– Provide decision-makers only with information that may be lawfully considered in the hiring process

• Put ownership of employer-related electronic accounts in writing– Disavow any reasonable expectation of privacy


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Employee Background Checks: Emerging Issues and ...€¦ · A background check might also be...

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