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If you weren’t able to attend the March Capital Region Human Resource Association “HR at the Helm” one-conference at the Empire State Plaza, then you missed Mario Pecoraro’s Legislative Update presentation.

For your convenience, we’ve reprinted the presentation here. This is part 1 of a 3 part series!

“Legislative Trends in Pre-Employment Background Investigations”

Fair Chance Act – (Also known as Ban-the-Box)

Many major US cities and counties have adopted fair hiring policies to remove unfair barriers to employment for people with criminal records. Federally, the EEOC has endorsed removing the question from the job application as a best practice.  In light of the fact that one in three Americans of working age have some sort of record, employers should…
* Review your states and cities of operation and determine if this Act applies to you
* Review your hiring process to ensure that your practice is non-discriminatory
* Document changes to your process and training of your staff. (You are also liable if you ask a candidate if they have ever been of a crime during an interview.)
This website offers up-to-date reports on the cities and counties that have passed legislation:

Changing Workforce – Workforce Adaptability & Contingent Workforce

How is the rise of freelance workers impacting us? Companies such as Uber and Lyft test legislation on who is considered an “employee” or not. Federal Express recently paid a $228M law suit to settle a dispute as to whether over 2,000 drivers in California could be considered Independent Contractors. Another emerging employer vs. contractor relationship is the rise of temporary, flexible “gig” workers. These jobs use platforms to outsource tasks to a large pool of virtual workers. Gig workers can sign up to perform services using a mobile app. In addition, not all work is compensated. There are crowd-based gigs that are only paid if the customer chooses the product. With all the changes to the employer/employee relationship, it is vital that you remain compliant. 

FCRA, EEOC, FTC: How they fit in

In recent years, the Equal Employment Opportunity Commission* (EEOC) and the Federal Trade Commission** (FTC) have been actively pursuing companies that are in violation of the Fair Credit Reporting Act*** (FCRA). How can you avoid being the victim of a lawsuit?
* Before conducting a pre-employment background screening, treat everyone equally! Don’t base your decision on race, national origin, color, sex, religion, disability, genetic information, or age.
* During the pre-employment background screening, ensure proper protocol with respect to release, disclosure, and commitment to FCRA requirements.
* When using the pre-employment background screening to decide, take special care when basing decisions that may be more common among people of a certain race, color, religion, disability, etc. Also, it is important to give the applicant ample notice to review results, etc.
* Be sure to comply with FACTA the Fair and Accurate Credit Transactions Act). All records and forms, regardless of whether the applicant was hired, must be preserved for one year after the records were created or action was taken. For federal contractors with more than 150+ employees or a $150k government contract, the requirement is for two years.

*EEOC: Ensures that employers are nondiscriminatory and treating everyone fairly.

*FTC: Promotes consumer protection and eliminating and preventing antitrust business practices. Enforces FCRA!  Ensure all compliance is met or FTC can enforce, they can litigate

***FCRA: Designed to protect individuals by promoting accuracy, fairness, and privacy of information in the files of every Consumer Reporting Agency (CRA);

Our future articles will include more of Mario’s legislative highlights including New York State laws that are important to know, litigation trends, the Certainty in Enforcement Act of 2015, Credit Checks/Compliance, Post-Hire Ongoing Screening & Compliance and the use of the “FBI” Check in Investigations Process.  Stay tuned!