This past weekend, I travelled to Phoenix, Arizona with my colleague Vu Do, PreCheck’s Vice President of Compliance, to participate in the National Association of Professional Background Screeners (NAPBS) tenth anniversary annual conference.  The conference not only covered the evolution of the association but also the background screening profession as well. The following are just a few of my selections from the conference I thought might be of particular interest to employers and our readers.

The EEOC to Issue Guidance on Employers' Use of Credit Reports

While the U.S. Equal Employment Opportunity Commission issued an Enforcement Guidance restricting employers’ use of criminal records in April 2012, the issue of credit history remains undecided. During the NAPBS Mid-Year Legislative Conference in Washington, DC earlier this year, EEOC Commissioner Constance Barker shared with the association that it will focus on the regulation of credit reports next. NAPBS Legislative Counsel, Montserrat Miller of the law firm Arnall Golden Gregory, shared with attendees that the association would work closely with the EEOC on the new guidance. By allowing NAPBS to collaborate with the EEOC on the pending credit history regulation, the association will have the opportunity to advocate for employers’ right to mitigate risk for their organizations.

The EEOC's Enforcement Guidance on Criminal History in the Courts

Over a year since the EEOC issued its Enforcement Guidance on employers’ use of criminal history, the Commission is serious about ensuring employers are following the guidance. While the enforcement guidance is not considered law, the EEOC issued it to enforce Title VII of the Civil Rights Act. Indeed, cases such as EEOC v. BMW and EEOC v. Dollar General demonstrate not complying with the guidance can have serious consequences for employers. At the time of this conference, both lawsuits remain pending. Not everything, however, remains grim for employers. In August 2013, a District Court Judge in Maryland decided against the agency in the case of EEOC v. Freeman. Nonetheless, employers should be wary of following the EEOC’s Guidance as the court did not strike down the validity of the Guidance overall—it simply resolved that the EEOC did not provide statistical evidence of disparate impact on this particular case.

The Benefits of an Applicant Tracking System

Applicant tracking systems (ATS) have been around for years, but in case your organization has not made the switch, here a few reasons why you might consider doing so. About 50% of employers with less than 1,000 employees don’t have an ATS, so depending on the volume of applications that you receive, this may not be a priority for you. However, if each job posting generates hundreds of applications, switching to an ATS might streamline the process for you. These systems can help your organization comply with the EEOC, as they have the ability to prescreen resumes based on your job requirements while eliminating human bias. Better yet, as PreCheck’s Executive Director of Information Technology discussed in a previous article, integrating an ATS with your background screening vendor can help your human resources department further streamline your organization’s hiring and onboarding processes.

Using Social Media in Background Screening

According to April 2013 survey findings from the Society for Human Resource Management, 77% of all employers surveyed are “increasingly using social networking sites for recruiting, primarily as a way to attract passive job candidates.” Similarly, a CareerBuilder survey from June 2013 showed that 2 in 5 (39%) companies use social networking sites to research job candidates. Social media can be a useful screening tool for employers to reveal potential risks including illegal activities, violent activity, and intolerance. Unfortunately, social media can also provide employers with protected class information such as marital status, religion, age, and race. The Federal Trade Commission (FTC) is expected to crack down on recruiters who do not properly acquire authorization and disclosure for social media screening. While employers can benefit from social media as an employment screening tool, it is important to have a written policy that ensures compliance with the federal Fair Credit Reporting Act, industry-specific legislation, and any state social media privacy laws. Further, employers should ensure they are only accessing publicly available information and are not coercing applicants to provide access to their social media profiles.

Alternative Drug Screening Methods: Hair and Oral Fluid Drug Testing

While urine drug testing may be one of the most popular methods for its cost-effectiveness, there are alternative specimens that may be a great alternative depending on the scenario. One reason why urine drug testing is not perfect is the ability for donors to adulterate and substitute urine samples. In fact, Google estimates over 6,600 searches for “how to pass a urine drug test.” Hair sample analysis, although 2-3 times the cost of a urine drug test, can provide long-term lifestyle detection (approximately 3 months). Laboratory-based oral fluid analysis offers recent usage detection (1-2 days). Both of these methods have been validated scientifically and eliminate collection issues, as all sample collections are observed. Hair testing is generally recommended for safety-sensitive employment (including healthcare professions) and random drug testing. Laboratory-based oral fluid analysis, comparatively, is best suited for entry-level employment, post-accident and for-cause testing. Depending on the situation, your employee drug testing program could benefit from one of these alternative specimen collection methods.