Thorough nanny background screening by a nanny referral agency is a key service differentiator from online nanny job matching sites. A nanny agency must remain current on background screening regulations at the state and Federal levels to avoid engaging in prohibited practices. Here is a brief summary of new developments that INA agency members should be aware of.
Equal Employment Opportunity Commission (EEOC) Updated Guidance (April 2014)
The EEOC issued new guidance for the use of criminal background screening records in the hiring process. The EEOC is intensely focused on insuring that criminal background screening “is not used in a discriminatory way” in the hiring process.
Household employers and nanny referral agencies clearly find background check information an important consideration when making hiring decisions. If your agency uses criminal history information in your referral process (and the INA definitely encourages responsible candidate background screening!), consider the following suggestions:
- Don’t base a “no hire” decision solely on an applicant’s criminal history
- Ignore arrests; only consider convictions
- Ignore convictions that have been expunged
- Consider the nature of the crime and its relevance to the current employment
- Consider how long ago the crime occurred
In the guidance, which applies to all public and private employers, the EEOC recommended as a “best practice . . . that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which
exclusion would be job related for the position in question and consistent with business necessity.”
‘Ban the Box’ Legislation Spreads to 13 States
States and localities are stepping up their efforts to remove barriers to employment for qualified workers with criminal records, specifically by removing conviction history questions from job applications—a reform commonly known as “ban the box.”
On July 19, 2014, Illinois signed the Job Opportunities for Qualified Applicants Act which bans employers in both the private and public sector from inquiring about an applicant’s criminal history until an interview or conditional offer is made. This law becomes effective January 1, 2015.
On August 11, 2014, New Jersey signed the “Opportunity to Compete Act,” Bill 1999 into law. The Act limits the ability of covered New Jersey employers to inquire into a job applicant’s criminal record. Private employers with 15 or more employees are covered by the New Jersey law. The law becomes effective March 1, 2015.
It is important to note that while most “Ban the Box” legislation applies only to employment screening of applicants to public jobs and positions with government contractors, many private companies are voluntarily conforming. This does not preclude including criminal records convictions in nanny background screening; rather, it prohibits asking for this information on an employment application.
Lawsuits Alleging FCRA Violations Increase
Industry insiders report an increase of lawsuits alleging employers and staffing agencies violated the Federal Credit Reporting Act (FCRA) as it applies to pre-employment background screening. Employers must follow strict FCRA guidelines when using credit bureau records in conjunction with background screening. It is common practice in pre-employment background screening to use an SSN trace type search to determine all names and addresses used by the applicant over a 7 year period. This search relies on limited access to credit bureau records, and is NOT a report on an applicants credit worthiness (commonly referred to as a Credit Report).
Most lawsuits accuse employers of illegally denying applicants employment based off information taken from background checks without giving the applicants opportunity to dispute the information.
The nanny agency must:
1. Have the applicant sign an authorization for the background screening and provide a mandatory FRCA disclosure to applicants.
2. Perform the screening (or engage an outside agency to do so on the agency’s behalf).
3. Before taking Adverse Action (denying the applicant the position based on the results of the background screen), you must provide the applicant with the following: (1) Pre-Adverse Action Notification; (2) Copy of the Consumer Report (background screening report); and (3) Summary of Consumer Rights.
4. Rescind the conditional job offer (Take Adverse Action).
This is just a short summary. The INA recommends that you become thoroughly familiar with the regulations that apply in your state.
A special thank you to INA-member HomeWork Solutions for providing this update. HomeWork Solutions offers both household payroll and household payroll tax compliance services to US families on a nationwide basis and has partnered with INA nanny agencies since 1993. HWS partners with National Crime Search to provide pre-employment background screening services.
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