UNLV Management Check and Double-Check Essay

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Business Finance

UNLV

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Purpose of this Assignment

To reinforce key concepts associated with legal issues associated with conducting background checks on job appllicants.

Instructions

Chapter 5 Article Review Assignment # 5 – Read “Check and Double-Check”, by Jonathan A. Segal, HRMagazine, Winter 2019, pp. 18 – 22 and write a double spaced one to two page review of the article and submit by the due date.

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W When conducting crimi- nal background checks, employers must weigh two sometimes-conflicting factors. First, the formerly incarcerated may be a source of much-needed talent- second-chance initiatives benefit em- ployers as well as employees. Second, some convictions could mean taking on unacceptable safety or other risks in hiring a candidate into a particu- lar position. These business issues correspond with legal risks: On the one hand, to avoid a claim of unlawful refusal to hire, employers need to understand the protections that the formerly in- carcerated have. On the other hand, employers need to consider whether hiring a candidate would expose them to a negligent-hiring claim in light of a prospective hire's criminal record and the job for which he or she has applied. Employers must consider a plethora of federal, state and local laws in bal- ancing these competing considerations. How does an employer weave the laws into a practical protocol? Let's enter the legal maze. хашитдать An Ya میں ۷ ست Vous Vragen Viegumen 77 SCOPE OF THE BACKGROUND CHECK In most cases, the background check will be conducted by a third party rather than by the employer itself. The third party is considered a "consumer reporting agency" (CRA) for purposes of the primary federal law in this area, the Fair Credit and Reporting Act (FCRA). As part of contracting with a CRA, the employer should make clear what the CRA should and should not disclose to it. As a general rule, an employer should not receive informa- tion that it lawfully cannot consider. For example, many states, such as California and Massachusetts, restrict an employer's consideration of certain misdemeanors. So the CRA should be instructed not to report such misdemeanor convictions. 'BAN-THE-BOX' LAWS After an employer contracts with a CRA, it should decide when to con- duct background checks and whether to limit them to certain positions. Requiring them of only certain indi- viduals is inadvisable; if an employer checks backgrounds based on people rather than positions, it invites claims of explicit or implicit bias, which very well may exist. Then there's a question of timing. An increasing number of state and local laws prevent employers from asking about criminal history-or conducting a background check- until after a conditional offer is made. Even if an employer is not sub- ject to "ban-the-box" laws (referring to a check box on an application that asks about criminal records), → ILLUSTRATION BY ADAM NIKLEWICZ FO I +4 it ordinarily makes sense not to con- duct a background check until after a conditional offer is extended. By waiting until then, an employ- er is less likely to have a viscerally negative reaction to the existence of any conviction, because the employer has already decided that it wants to hire the applicant. The formerly in- carcerated are a source of talent that employers should not categorically ignore, independent of the law. THE PROCESS The background-check process that an employer will follow is set forth in the FCRA. In general, there are three main steps: 1. Authorization by the applicant. 2. Pre-adverse action notice. 3. Adverse action notice. Each of these elements is ad- dressed below. AUTHORIZATION All applicants must sign a back- ground-check authorization that's compliant with federal law. The authorization would not be com- pliant, for example, if the applicant waives any claims that he or she may have with regard to the background check. Some states, such as California, require a separate authorization. Any form required by a state should be a separate form and not combined with the FCRA authorization, or it may not comply with the FCRA. After the employer receives in- formation from the CRA about an applicant, HR will need to deter- mine preliminarily whether any conviction disqualifies the applicant from employment. In 2012, the Equal Employment • The nature and gravity of the offense or conduct. • The time that has passed since the offense, conduct and/or completion of any sentence. • The nature of the job the candidate is seeking. While the EEOC guidance is subject to challenge, its principles minimize an employer's exposure to adverse impact claims. Moreover, an increasing number of state and local jurisdictions are requiring a holistic approach to conducting background checks. For example, New York state requires that an employer consid- er eight enumerated factors. New York City goes further and requires that the employer provide rejected applicants with its analysis of how it applied the eight factors. Of course, there are exceptions to individualized assessments. For example, securities laws bar appli- cants with certain convictions from Solving employee recruitment challenges with fully-funded degrees It's a tough reality: replacing an employee costs an average of 21% of their annual salary. If you aren't currently offering an education benefit that provides tuition assistance, maybe you should reconsider. According to a recent Lumina Study, it was found that for every $1 spent, $1.44 was returned to the company - that's a 144% return on your investment. This same study ranks education benefits as the third most valued, just behind health insurance and salary increases. So partnering with a university that knows how to serve working adults is a win-win for your company and your employees. Our graduation rates speak for themselves. At Brandman University, more than 82% of our students graduate, compared to about 50% at most educational institutions. As a socially responsible, nonprofit institution, Brandman understands that the value of a degree is not only life-changing for its students, but also vital to our economy's future. If you're ready to future-proof your business, and learn how HR can become a profit center for your company, Brandman University can help. I +O 3 4 LEGAL TRENDS performing certain jobs. Also, most, if not all, states have laws to protect children from sexual and other forms of abuse. These laws generally prevent employers from hiring applicants with certain convictions to perform jobs in which they may have unsupervised interaction with children. PRE-ADVERSE ACTION NOTICE If the employer has concluded that a conviction disqualifies an applicant from a particular job, that decision must be preliminary and not final. The next step under the FCRA is to provide the applicant with a pre- adverse action notice. Under the FCRA, the applicant must be given the opportunity to dis- pute the veracity of any report used to disqualify him or her. Employers are well-advised to go one step fur- ther and ask the applicant if there's any other information that he or she SIRM BROKERFINDER Exceptional Broker Hire thinks the employer should consider, even if the report is accurate. This helps demonstrate that an individualized assessment was conducted as set forth in the EEOC guidance. It's also consistent with the individualized assessment process re- quired by many state and local laws. Employers must attach to the pre-adverse action notice a sum- mary of the applicant's rights under federal law. Some states, such as New Jersey, have an additional no- tice, and there are special rules that apply in California. Just as the employer should document its preliminary de- termination, the employer should document the reasoning underlying its decision with regard to any infor- mation that the applicant provides. ADVERSE ACTION The final step is to issue an adverse action letter under the FCRA, which generally requires the employer to do the following: • State that the decision to reject was based on a report by the CRA. • Make clear that the CRA did not make the employment decision. • Provide the applicant with infor- mation about contacting the CRA. Don't forget to check state or lo- cal laws, because they may require additional language-such as telling applicants that they can appeal to the state-in the adverse action letter. R Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law. 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Explanation & Answer

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Article Review: “Check and Double-Check”
In the article, "Check and Double-Check," Segal divulges the intricacies of criminal
background checks that employers must navigate during the hiring process. Notably, when
hiring an employee with a criminal background, the employer may be in a dilemma for two
reasons. On the one hand, the employee may have a much-needed talent, and giving people
second chances is ethical and beneficial. On the other hand, by hiring a formerly convicted
employee, the employer may take risks that may be counterproductive to the organization and
may be sued for negligent hiring. Therefore, criminal background checks are vital and should
be conducted meticulously to bal...


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