A Healthcare Employer’s Thoughts on the Recent U.S. Chamber of Commerce Conference on Employment Background Checks

A Healthcare Employer’s Thoughts on the Recent U.S. Chamber of Commerce Conference on Employment Background Checks
Vice President of Compliance

With the ongoing regulatory scrutiny and media coverage criticizing how employment background checks can keep ex-offenders from getting jobs, it’s almost easy these days to overlook the most basic of notions—that background checks provide an essential benefit to employers, co-workers, customers, and patients. As the title of a recent conference hosted at the U.S. Chamber of Commerce and co-sponsored by the National Association of Professional Background Screeners (NAPBS) and the Consumer Data Industry Association (CDIA) reminds us—background checks matter.

On March 6, 2014, I attended the half-day event titled “Background Checks and Employment: Why Background Checks Matter and the EEOC’s Current Enforcement Practices.” The agenda included two lively panels that sandwiched a conversation featuring the Wall Street Journal’s Mary Kissel interviewing Don Livingston, partner at Akin Gump Strauss Hauer & Feld and former EEOC General Counsel.

The first panel discussed “Why Businesses and Non-Profit Organizations Rely on Criminal Background Checks” and included representatives from The Boeing Company, ADT Security Services, National Center for Safety Initiatives, and Memorial Hermann Health System. This highly articulate and insightful panel represented an array of industries from healthcare, to volunteer organizations, to security, and aerospace. What they all have in common is their reliance on employment background checks to ensure safe working environments for workers and customers, and in the case of ADT, to ensure that those representatives coming into customers’ homes to provide services are trustworthy and reliable.

PreCheck was very excited that our client Sachin Bhandari, Assistant General Counsel, Labor and Employment, at Memorial Hermann Health System in Houston was featured as the healthcare panelist. Sachin accepted our invitation to serve as a panelist explaining “as a large not-for-profit organization that serves the public, I felt it was critical to share the importance of conducting employment background checks. I think healthcare employers have some unique challenges and I wanted to share those.”

After listening to his fellow panelists discuss their screening programs and practices, Sachin concludes “it’s abundantly clear that most employers are trying to do the right thing by hiring the right people while maintaining compliance with the myriad of local, state, and federal rules affecting background checks.” These organizations also give incredible deference to the EEOC’s Enforcement Guidance on Employer’s Use of Conviction Records, guidelines that were passed in April 2012. To comply with the guidance, Sachin explained how Memorial Hermann expended considerable resources in order to streamline their processes and better ensure compliance. Curtis Moseley from Boeing revealed that the cost alone of removing the criminal records disclosure question from their online application was substantial. Both in its Enforcement Guidance and in offering clarification to employers, the EEOC advocates deferring any inquiries into an applicant’s criminal history until the interview stage or post conditional offer of employment. Clearly, employers are paying the price to comply.

The condensed program on March 6th was also filled with legal insights from the second panel featuring noted labor and employment attorney specializing in FCRA matters, Pam Devata of Seyfarth Shaw. Devata is also a former NAPBS board member. Julie Payne, Chief Legal Officer, Americas Region of the global security firm G4S also rounded out the panel along with Don Livingston of Akin Gump Strauss Hauer & Feld. Payne enlightened attendees on her firm’s experience undergoing a highly invasive EEOC investigation for their use of criminal background checks. The agency took issue with the company’s criminal history practices even though it is required by state law to perform background checks and to exclude certain individuals with specific criminal history because those individuals cannot be licensed. Basically, to work security, you have to be licensed. But you can’t be licensed if you’ve been convicted of certain crimes within certain time frames. And the EEOC doesn’t agree with hiring prohibitions that exclude categories of ex-offenders (e.g. all felony assault convictions). But if you’re a security firm that hires licensed employees, it’s clear that you have to follow those state-imposed hiring regulations. So where exactly does that leave employers like G4S? In their case, it left them with over two years of investigation, in-depth discovery, and significant legal fees before finally settling with the Commission. Additionally, this case has healthcare employers concerned because they too are highly regulated and must also abide by state laws with hiring prohibitions.

Don Livingston, of Akin Gump also sat down with the Wall Street Journal’s Mary Kissel to talk insights about the Commission and its enforcement activities. When it comes to how much more clarity the Commission can lend to the enforcement Guidance it issued back in April 2012, Livingston confirmed that “the EEOC refuses to answer questions about how much risk employers have to tolerate.” How’s that for employer guidance.

For a half-day event, the conference was very successful at bringing to light the efforts expended and challenges faced by a wide array of employers. We circled back post conference with Sachin to get his thoughts on the biggest background check challenge faced by healthcare employers today:

With the implementation of the Affordable Care Act, the number of insured individuals will continue to rise over the coming years. That requires more and more staff, and health systems across the country are recognizing a shortage of qualified caregivers. That means health systems will look outside their home state or even outside the U.S. for qualified staff. Conducting a national or international background check poses unique challenges. That’s why it’s becoming more and more important to partner with a screening firm that has the capabilities and infrastructure to deliver accurate and timely data on an international scale.

The legal and employer panels gave such meaningful insight into the importance of background checks. On the risk mitigation side, we know that running background checks is just one tool in a comprehensive approach to hiring assessments. When asked about what he enjoys most in his role at Memorial Hermann, Sachin is quick to share that “working in a corporate environment, it’s easy to forget why we do what we do. The best part of my job is being able to interact with our caregivers and hearing the wonderful stories that they have to share about how Memorial Hermann is advancing the health of our community.  Lucky for me, there are no shortage of inspirational stories.” Understanding what Memorial Hermann does for providers and patients inspires our passion at PreCheck and our commitment to patient safety.

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