Thursday, 14 February 2013 11:48
Court Decision Regarding Adjudications by CRAs
Keesha Goode and Victoria Goodman v. LexisNexis Risk and Information Analytics, Group., 848 F. Supp. 2d 532 (ED Pennsylvania 2012).
Attorneys have a saying that: "bad facts make bad law". This is a case that seems to fall into this category of cases because the facts result in the holding that does not make sense when applied to the context of normal adjudications conducted by CRAs. Unfortunately, other courts may apply the reasoning of this case to other cases where CRAs are performing this type service but not appreciate the subtle distinctions of what the CRAs are doing . The decision in this case was on a motion to dismiss, which legally means a case is to remain before the court if any conceivable reason supports the case going forward. These motions are rarely granted. However, the court's view of adjudication that allowed the case to remain alive is troublesome.
In this case, LexisNexis performed adjudications for its customer. What complicates the situation is that LexisNexis was, as a part of its adjudication, adjudicating its own theft database material. The court found that there were disputes by the Plaintiffs as to the accuracy of this theft database information on them. In its course of adjudicating this matter, LexisNexis determined that the Plaintiffs were "non-competitive" due to the information in the theft database pursuant to the adjudication matrix of the employer. LexisNexis then issued pre-adverse action letters to the two applicants on behalf of the employer. These letters enclosed the report itself but did not include that part of the report that was the consumers' "admissions", which were in the database and which were in fact denials not admissions. The court reasoned that the consumer statements were not supportive that the consumers had engaged in theft.
The court believed that the pre-adverse action adjudication was actually an adverse action adjudication because there was no real opportunity for the consumers to contest the adjudication or change the outcome. The court found that the scheme was missing the critical step, under the FCRA, which was the employer making the final decision based on the full report and any information the consumer uses to dispute the report.
The "sin" in this process appears to the be the fact that the consumer statements that were a part of the theft database were not included in the communication to the consumers along with the pre-adverse action notices, nor were they provided to the employer. Without these statements, the consumer was unable to effectively dispute the information as part of the pre-adverse action process and the employer was totally unaware that the information was in fact disputed. Based on these facts, LexisNexis was making the decision that the applicants were "non-competitive".
While some employers want to be cut out of the process entirely, the decision of this court would indicate this might be a dangerous or risky decision. Full communication to the employer is necessary.
Further, adjudication of your own data creates the appearance, at least, of a conflict of interest with the CRA.
The State Rules Register
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www.CRAHelpDesk.com
The EEOC announced its Strategic Plan for Fiscal Years 2012-2016. One of the directives was to develop a Strategic Enforcement Plan that establishes priorities and integrates the EEOC’s enforcement across the private, public and federal sectors. The Strategic Enforcement Plan has been approved and includes the following priorities:
* Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
* Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
* Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
* Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
* Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.
* Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
Employers should conduct a complete evaluation of company policies and procedures, including any applicable background screening policies as the EEOC has demonstrated that the use of background screening in hiring decisions falls on its priority list via investigations and the issuance of its Enforcement Guidance regarding the use of criminal and arrest records in employment decisions.
Wednesday, 14 November 2012 13:44
NAPBS Responds to Today Show report on Background Screening
Written by Lisa Holder
The National Association of Professional Background Screeners (NAPBS) is deeply disappointed in the misleading report that aired on the Today Show regarding the use of pre-employment background checks.
NAPBS Chairman Fred Giles issued the following statement: “While the focus is on consumer protection and consumer rights, it is equally important that these concerns be balanced with public safety in the workplace and communities. Never before have consumers had as much protection against inaccuracies as they do today.”
“NBC’s Today Show and reporter Jeff Rossen have done a disservice to employers and the general public by focusing on a small number of unfortunate instances in an attempt to indict an entire industry that is critical to the safety of our homes and workplaces.”
“The members of our association fully understand the significant responsibility we have in providing timely and accurate information for employers to use in determining who they hire. Simply put, when it comes to accuracy, our customers demand it and the law requires it. Consumer protection is also of paramount importance to our members. Our members actively help consumers resolve disputed records and note that fewer than 1 percent of consumer disputed records are actually found to contain an error.”
“For our part, NAPBS has developed a comprehensive individual certification program and a company-based accreditation program with more than 58 specific standards of compliance to ensure our members provide the highest level of performance.”
“There are two important points that the Today Show viewers need to know. First, federal law, namely the Fair Credit Reporting Act (FCRA), protects the rights of job applicants in disputing incorrect information in pre-employment background checks. Our members must and do follow the law in all such matters. But the law does not apply only to screeners. Employers have a legal responsibility under the FCRA to acknowledge these disputes and to follow a specific process for resolving them, and that process should protect the applicant’s pursuit of the position.”
“NBC failed to provide the full story as to why sufficient time, accounted for in the law, was not allowed for the applicant to resolve the dispute. Instead, there was a sensational rush to indict an industry that in fact does more to protect the safety of the workplace than a handful of unfortunate sensationalized anecdotes would indicate.”
“While the focus is on consumer protection and consumer rights, it is equally important that these concerns be balanced with public safety in the workplace and communities. Never before have consumers had as much protection against inaccuracies as they do today.”
•Consumers have the opportunity to receive a free credit report every year to review for accuracy.
• They benefit from built-in consumer protections required under the FCRA for background screeners and the end users of consumer reports, as well as dispute resolution, pre-adverse and adverse action requirements.
• Finally, all background screening companies are subject to the rule-making and enforcement of the newly formed Consumer Financial Protection Bureau.
“By relying on a few such examples to illustrate incidents of error, the Today Show ignored the vast majority of the millions of background screens conducted each year and the serious workplace problems they help to prevent. Each year, business owners, corporate HR departments, government agencies and nonprofits conduct millions of pre-employment background checks to ensure that job applicants are competent and fit for the position for which they are applying. This helps businesses protect their own employees, as well as the general public. Most importantly, it helps to ensure the safety of our children and the elderly who represent the most vulnerable populations in our communities.”
“Employee background screening is critical in today’s business environment, allowing employers to meet their legal responsibilities to provide a safe and secure environment for their existing employees and the customers they serve. For the Today Show to suggest otherwise is not only unwise, but potentially dangerous.”
