Hiring the Best:
Background Checks, References, & More
FCCC 2013 FALL
CONFERENCE
NOVEMBER 13, 2013
PRESENTED BY:
DENA H. SOKOLOW
ALLEN, NORTON & BLUE, P.A.
Employers Should Be Curious
 You are entitled to learn as much information
about a candidate as possible before offering
them a position.
 Well-drafted applications ask:
 Previous
work history
 Previous work experience
 Educational background
 Military background
 References
Employers Should Be Curious
 You are entitled to learn as much information
about a candidate as possible before offering
them a position.
 Acknowledgments and permission
 Truth
and accuracy of information
 Background checks
 Military or school records check
Background Checks
 Over 90% of employers conduct criminal
background checks for some job applicants.
 Over 70% of employers conduct background
checks on all potential new hires.
 Identify candidates who display a history of
good decision making and judgment.
 Reduce the risk of criminal behavior in the
workplace.
 Avoid negligent hiring lawsuits.
Developments
 Criminal background checks obtained for
employment purposes are controversial. Under
attack from:
the U.S. Equal Employment Opportunity Commission
(EEOC)
 Civil rights activists
 President Obama

 2012 Enforcement Guidance from EEOC
More and More “background check” Lawsuts
 In 2013, the EEOC lost two high-profile federal
lawsuits1
 It attempted to show that many employers use
criminal and/or credit background checks to
discriminate against applicants in violation of Title VII.
 Courts did not find the EEOC’s
statistics persuasive.
1 EEOC v. Freeman; EEOC v. Kaplan Learning.
More and More “background check” Lawsuits
 The EEOC will continue pursuing claims
that criminal and/or credit background
checks violate Title VII.
 Employers should review their policies,
ensure that screens are job-related,
defensible, and based on business necessity.
The Free Credit Reporting Act (FCRA)
 The FCRA regulates the exchange of consumer
information between employers that use
consumer reporting agencies (CRAs) to
provide screening reports with other types of
information, including criminal records.
 Employers must comply with the FCRA when they
order virtually any type of report from a CRA.
Compliance with the FCRA
 The FCRA’s requirements on employers may
be divided into two categories:
(1) requirements employers must follow before
they obtain a consumer report
(2) requirements employers must follow if they
take “adverse action” based on information
contained in the consumer report.
Obtaining a Report
 Employers can do a background check on any
applicant.
 In order to obtain a report from a CRA, an
employer must get the applicants consent:
make a clear and conspicuous written disclosure to the
applicant, in a document that consists “solely” of the
disclosure, that a consumer report may be obtained.
 The applicant (or employee) must provide written
consent.

Obtaining a Report
 NOTE – A properly worded authorization from an
applicant will allow an employer to obtain more
consumer reports during employment without the
need obtain a new authorization.
Now you’ve received the report … What next?
 If the report doesn’t contain any damaging
information – GREAT!
 If it DOES contain damaging information, you can
reject an applicant based on the poor report.
 This is called “adverse action” and the employer
must follow certain requirements.

“adverse action” = “a denial of employment or any other
decision for employment purposes that adversely affects any
current or prospective employee.”
Fair Credit Reporting Requirements
When taking an adverse action, the employer
must --

1.
Disclose to the applicant that you are not selecting
him/her because of the poor report.
2.
Provide a copy of the consumer report and who
provided it to you.
3.
Provide a summary of consumer rights (a document
provided by the Consumer Financial Protection
Bureau).
Potential Liability for FCRA Non-Compliance
 The FCRA allows an applicant or employee to sue an
employer for “negligently” or “willfully” failing to
comply with any of the FCRA’s requirements.
The statute of limitations for violations of the
FCRA:
(1) two years after the plaintiff discovers the violation;
or
(2) five years after the date on which the violation that
is the basis of the alleged liability occurred.

Emergence of FCRA Class-Actions
 Recently, large employers have lost several class
actions because they violated FCRA requirements.
Did not provide notice or
 Did not properly handle documents.

 As more publicized settlements occur, the risk
grows for “copycat” suits brought by plaintiffs’
attorneys not previously familiar with the FCRA.
Hiring Decisions
 Employers must be CONSISTENT with the treatment of
applicants.
 What if you hire the white applicant with poor consumer
report and then use similar information as a basis for not
hiring a minority applicant. LAWSUIT!
 Employers are allowed to have different consumer report
standards for applicants v. employees.
 TIP: Employers cannot discriminate (refuse to hire) an
applicant simply because he/she filed for bankruptcy.
BUT . . . can refuse to hire because of bad credit.
Using Background Information
Are You Risking a Lawsuit?: Ask Three Questions
Question #1 – Is all available information equally
relevant in selecting a candidate?
Question #2 – Do you have valid reasons to order
background checks?
Question #3 – Are you making appropriately tailored
assessments of unsuitability?
Q #1 – Is the information equally relevant?
 The scope of a background screen can be as narrow
as reviewing driving history or as broad as reviewing
all information contained in any public and
educational record.
 As you peruse the menu of screening choices you
should ask yourself, “What are we going to do with
the results?”
Q #1 – Is the information equally relevant?
 Criminal History
 Before
hiring candidates, identify what kind of
criminal background information you will look
for …
 Related
to honesty (theft, etc.)
 Including how many years back
 Employers
get sued when there is inconsistency
in the type of background check each applicant
gets
Q #1 – Is the information equally relevant?
 Ex:
Employer refuses to hire a qualified minority
with a DUI conviction and then hires a qualified
white male with similar DUI conviction.
 Establishing
(1)
(2)
a policy will:
help prevent lawsuits and
help defend against them if and when they
come
CONSISTENCY IS KEY
Q #1 – Is the information equally relevant?
 Credit History

Do the same financial background check for all
applicants applying for the same job – not just some of
them.

Use the information for positions with financial risk, i.e.
such as accountant, controller, etc.

Provide an opportunity for applicants to explain their
negative credit-history information.
CONSISTENCY IS KEY
Q #1 – Is the information equally relevant?
 Arrest history
 When a job candidate is arrested for a crime and then
not convicted (or only convicted of a less serious crime):
 both state and federal regulators have warned
employers to either ignore this information altogether,
or
 use it merely as a basis to ask an applicant for more
detail about the events surrounding the arrest.
CONSISTENCY IS KEY
Q #2 – Valid reasons for the report?
 Should you complete a background check for the
position?
Consider this information :
the nature of job duties;
 the environment where the work is performed; or
 the exposure to the public

 Do these factors make it important to be able to
evaluate a candidate’s criminal history or current
financial position as part of your assessment?
Q #2 – Appropriate assessments?
 Consistency is a critical litmus test of whether
there is discrimination in the workplace
 The greater the consistency, the less likely that
discrimination is present.
Q #2 – Appropriate assessments?
 To err on the safe side -- you should place greater emphasis
on criminal (or credit) history that makes a candidate
unsuitable for a particular job position by considering
factors such as:
 The
nature of the job sought;
 The number, nature and gravity of offense(s), as
well as surrounding facts such as age at the time of
conviction;
 Amount of time since the offense and/or completion
of the sentence, and any evidence of rehabilitation
efforts, employment history, or compelling
references.
Other Types of Background Checks
 What if you do not use a consumer reporting agency,
such as a Sheriff’s office or the FDLE?
 Background checks done by non-CRAs are not
regulated by the FCRA and its “notice”
requirements.
 Still
obtain the applicant’s consent.
 A well-drafted authorization form will allow
you to run background checks on that employee
in the future.
Reference Checks
 Ask all you want!
 Job
references
 Performance/Attitude, etc
 Previous employment
 Gaps in employment
 “Job hoppers”
 Reasons for leaving the job.
 “He
didn’t get along with the supervisor.”
False or Misleading Information
 What if you unknowingly receive false or misleading
information from the applicant and you use it as a
reason for non-selection?
 Entirely permissible. You still must be consistent in
what weight you give certain facts.
 Important to document reference information
 What if – after you hired the applicant – you
discover he provided you false/misleading info?
 You can terminate the employee. Just be consistent.
 Warning on application.
Public Employees = Public Records
 Make a public records request from the
previous employer if the applicant worked
for a public entity.
 Carefully word the public records request to
be as broad as possible.
A Few Tips
 TIP: written consent is required to obtain school
transcripts or detailed information on an applicant’s
military service record.
 TIP: Do not place a candidate who does not meet
minimum qualifications into the pool of candidates
who do meet qualifications.
 TIP: Carefully review information given on
application/resume.
 Compare
 Look for gaps
A Few Tips
TIP: Proofread your own forms!
Employment Applications, Contracts and
Orientation Materials
Immigration Reform and Control Act of 1986
(“IRCA”)
 Applies to employers with more than 3
employees
 Prohibits discrimination against any
person, other than an unauthorized alien, in
hiring, discharging, recruiting, or referring
for a fee because of the person’s citizenship
status.
Unlawful Employment of Aliens
 It is unlawful for a person or other entity—
 to
hire, or to recruit or refer for a fee, for
employment in the United States an alien
knowing the alien is an unauthorized
alien … with respect to such employment…
(8 U.S.C. Section 1324a (A)(1))
Unlawful Employment of Aliens
 Continuing employment
 It
is unlawful for a person or other entity, after
hiring an alien for employment …, to continue
to employ the alien in the United States
knowing the alien is (or has become) an
unauthorized alien with respect to such
employment. …
(8 U.S.C. Section 1324a (A)(2))
Unlawful Employment of Aliens
 The term “unauthorized alien” means, with
respect to the employment of an alien at a
particular time, that the alien is not at that
time either:
 an
alien lawfully admitted for permanent
residence, or
 authorized to be so employed by IRCA or by the
Attorney General.
Citizenship Requirements
 The purpose of the federal employer sanctions law
is to require employers to hire only individuals
who may legally work here: U.S. citizens,
noncitizen nationals, lawful permanent residents,
and aliens authorized to work.
 Form I-9 helps employers to verify individuals who
are authorized to work in the United States.
 You, as an employer, must complete
a Form I-9 for every new employee you hire.
I-9 Form Requirements
What are the current civil penalties?
 First fines range from $110 - $1,100 per I-9.
 Knowingly hiring or continuing to employ: fines
range from $375 - $3,200 per alien
 Pattern or practice: $3,300 - $11,000
I-9 Form Requirements
 What are the basic Form I-9 requirements?
 Employers
must complete for every new hire.
 Employers may not knowingly hire or continue to
employ a person who is not authorized to work in
the United States.
 Physical presence of the employee is required.
 Must see original documents, not copies. However
will accept a certified copy of birth certificate.
 No exception for temporary or part-time
employment.
I-9 Form Requirements
 How should Form I-9 be completed?
 Physical
presence of employee is required
(Someone has to see person and his/her
documents)
 Must see original documents, not copies.
 However, will accept a certified copy of birth
certificate. Attach photocopies of documents.
 No exception for temporary or part-time
employment
I-9 Form Requirements
 When must the Form I-9 be completed?
 Within
three business days of the date employment
begins.
 If the new hire claims that the necessary documents
were lost, stolen or destroyed, the person must
provide a receipt for replacement documents within
the three days.
 If an employee has presented a receipt for a
replacement document, he or she must produce the
actual document within 90 days of the date
employment begins.
I-9 Form Requirements
 Is completion of an I-9 required for a person
who is on leave?
 No I-9 is needed if an employee is “continuing to
be employed.”
Leave of absence, disability, vacation, etc.
Promotion or demotion
Strike, temporarily laid off
Disciplinary suspension
I-9 Form Requirements
 Employer’s retention obligations?
3
years from date of hire, or
 1 year after the date employment ends
Whichever date is later
 TIP: Keep separate from immigration and
personnel files
Importance of Compliance
 Form I-9s now administratively inspected by
 U.S. Immigration and Customs Enforcement (“ICE”),
 U. S Department of Labor (“DOL”)
 Notices of Inspection (“NOIs”) put employers on
notice that their employee records (I-9 Forms) will
be audited and examined by ICE officials
Importance of Compliance
 The NOIs target employers who employ
undocumented workers
 Audits can result in civil penalties or criminal
prosecution
 Food supply chain companies have been targeted
the most, but other industries are also targeted
 It is expected that this upward trend will continue
I-9 Form Requirements
 Document TIPS
 U.S.
passport CANNOT be expired
 Foreign
passport must be unexpired ID card
must be issued by a federal/state/local
government agency.
 Voter’s
registration card need not have photo to
confirm identity.
I-9 Form Requirements
 Document TIPS

For E-Verify candidates, a photo ID is required.

Social security card not acceptable for work
authorization if it contains notations “Not Valid for
Employment.” Social security card will NEVER say
“Valid for Employment.”

Birth certificate must be issued by state or local
government authority. (Not church, not hospital.)
FAQs
 Do I need to complete a Form I-9 for
everyone who applies for a job with my
company?

No. You need to complete Form I-9 only for people you
actually hire. For purposes of the I-9 rules, a person is
“hired” when he or she begins to work for you for wages
or other compensation.
FAQs
 Can I terminate an employee who fails to
produce the required documents within
three business days?

Yes.

May terminate an employee who fails to produce the
required documents, or a receipt for replacement
documents within three business days of the date
employment begins.

However, be CONSISTENT with all employees.
E – Verify
 E-Verify is an internet-based system offered by the
Department of Homeland Security (“DHS”)
 Allows employers to determine the eligibility of
their applicants to work in the United States.
 Electronically compares an employee’s I-9 Form
with government (social security, immigration,
DHS) records, and alerts employers if an employee
is ineligible to work based on immigration status.
E – Verify
 ALL Florida state agencies required to use E-Verify
 A recent study found that the system correctly
determined a worker's immigration status 96% of
the time.
 However, the program failed to flag unauthorized
workers 54% of the time because the system cannot
spot identity theft.
“No – Match” Letters
 Issued by the Social Security Administration (SSA) if
an employee’s name or social security number on a
W-2 form does not match to a valid Social Security
number.
 The SSA calls them “Decentralized Correspondence”
(DECOR) letters.
 It cautions employers against taking adverse action
against the employee based solely on receipt of letter.
“No – Match” Letters
 Mismatches could be due to:
 Misspellings
 Transposed
numbers
 Name changes
 False SSNs
 Identity theft
 The no-match letter will make no statement about
an employee’s immigration status, but the
employer MUST respond & proceed cautiously …
Have a Plan for “No – Match”
1. Check employment records
2. Respond to the letter

Even if the letter says your response is not required,
SSA may refer the matter to the IRS or Justice
Department for prosecution of Social Security fraud if
you ignore the letter.
Have a Plan for “No – Match”

If you inaccurately recorded the employee’s Social
Security Number:
1.
rectify the error in the current payroll system;
2.
submit a Form W-2c to the SSA reflecting the
appropriate data; and
3.
complete the SSA questionnaire with accurate data
from the employee’s revised personnel file or payroll
system.
Have a Plan for “No – Match”

If you confirm that your internal records accurately
reflect the employee’s Social Security Number:
1.
provide written notification of the mismatch to the
affected active employee,
2.
specifying that they have thirty (30) calendar days to
correct the mismatch problem.

3.
NOTE: Obtaining new Social Security card may take 60 days so
provide more time if reasonable
verbally notify the affected employee – consistent with the
written notice given – that you will use E-Verify to confirm
any new Social Security
Have a Plan for “No – Match”
4.
Complete the SSA questionnaire after giving the affected
employee the thirty (30) day period to rectify the
mismatch
5.
You may terminate the employee for failure to provide a
valid social security number if he/she fails to timely
remedy the mismatch
6.
Then, questionnaire will be completed showing the
individual as no longer employed.
Have a Plan for “No – Match”
 Finalizing Documentation

In separate immigration file – Not personnel file
All documentation used in these communications
 copy of the completed SSA questionnaire,


If necessary, flag former employee’s Social Security Number in
the company’s payroll system to prevent future rehire unless
he/she has an unresolved Social Security Mismatch letter on
file.
Hiring Decision on an Impermissible / Illegal Reason
 Race
 Title VII and FCHR
 Pretty self-explanatory – you cannot non-select because of
someone’s race
 Sex
 Title VII and FCHR
 Gender is one component
 Pregnancy – what happens if an applicant says she is pregnant
– can you use that as a basis for non-selection?
 No! Its the same as if they were current employee.
Hiring Decision on an Impermissible / Illegal Reason
 Disability
 ADA
 What medically-related questions can you ask before making an offer
of employment?

Basically nothing.
 Age
 ADEA
 National origin
 Military status
 Florida’s Veterans Preference Law
 Marital Status
 History of workers‘compensation claims
How do these cases get proven?
 Direct evidence
 Email is a plaintiff lawyers best friend! For a Clerk of Court it
is a public record!

Bottom line – DO NOT write anything about race, sex, age,
medical condition, national origin, religion, military status,
union organizing, worker’s compensation, sexual orientation
 Inference of discrimination
 Irregularities of deviation in the process
Inter-Office Memoranda and Emails
 Develop and implement policies concerning the
use and scope of inter-office memoranda and
emails

A 2004 study revealed that 35% of businesses had an
email retention policy, and only 6% retained and
archived instant-messaging records

54% of businesses had conducted training on proper
email use
Inter-Office Memoranda and Emails
 Intemperate remarks in either memos or emails can be a
catalyst for a costly lawsuit

In the same study, 20% of businesses stated they had employee
emails subpoenaed , a steady increase from preceding years
 Employees and supervisors should avoid private matters or
inflammatory subjects in their written or electronic
communications

Emails may become public records; if private, may still be
discoverable in a lawsuit.
Guidelines for Public Employers
 Public Records
 The general rule - unless the Legislature has expressly exempted
certain records from disclosure those records are subject to public
inspection and copying

Background Information.

Applies to all types of records including letters, notes and e-mails.

Supervisory notes or files

Draft copies?

Personnel files
Useful Examples
 Some Public Records Exceptions
 Sexual harassment investigations - portions of the records that
identify or reasonably could lead to the identification of the
complainant or a witness constitute limited-access records.

“Uncirculated drafts”

Employee medical information

All documentation relative to why employee’s explanation of positive
drug test results is unsatisfactory, along with the report of the
positive test results, are confidential and exempt.
Useful Examples
 Retention Schedule for Public Records

Public agencies/employers are required to retain public
records according to a retention schedule established by
the Florida Department of State
The schedule can be found at:
http://dlis.dos.state.fl.us/recordsmgmt/gen_records_sche
dules.cfm

Thank You
ANY QUESTIONS, CONTACT ME AT:
906 NORTH MONROE STREET
TALLAHASSEE, FL 32303
(850) 561-3503
DSOKOLOW@ANBLAW.COM
THIS PRESENTATION IS NOT INTENDED AS A
SUBSTITUTE FOR INDEPENDENT LEGAL ADVICE.