ORDER A REPORT
SECURE FILE UPLOAD

Compliance Corner for Employment Decisions refers to an internal or external resource hub that helps HR teams, managers, and compliance officers navigate the legal requirements tied to employment actions. It ensures decisions are consistent, documented, job‑related, and nondiscriminatory.

Here’s what a strong Compliance Corner usually includes:

  • Legal frameworks — Title VII, ADA, ADEA, FCRA, state laws, and local ordinances.
  • Adverse employment actions — what counts, how to document them, and how to avoid discriminatory impact.
  • Fair Chance hiring — compliant use of criminal history, individualized assessments, and Ban‑the‑Box rules.
  • Background check compliance — proper disclosures, authorizations, and adverse‑action procedures.
  • EEOC guidance — how to ensure decisions are job‑related and consistent with business necessity.
  • Documentation standards — how to record performance issues, investigations, and decision rationale.
  • Consistency in decision‑making — avoiding disparate treatment and disparate impact.
  • Manager training — ensuring supervisors understand legal boundaries and company policy.

Bienville University not so bien

In our second diploma mill case this year, an applicant for a professional level position with one of our accounting firm clients claimed a bachelor of business administration degree from Bienville University in Baton Rouge, LA. Our research analyst quickly discovered that the university was shut down by state action several years ago, but subsequently began peddling degrees in Mississippi for $5,000 for the BS program and $7,500 for a master’s program (according to an Internet “rip-off” posting.) A colorful, official-looking Web site for Bienville University still can be found at http://www.3cdf.com/3rdwebs/bu3/menu/menu.html but its pages for various information categories are not active. An entry in the Wikipedia said that Bienville University was exposed as a diploma or degree mill in a 2003 report by KVBC News 3, as it was never recognized or approved by any accreditation agency of the US Department of Education.

And there is more…Bienville University’s founder, Thomas James Kirk II (also known as Thomas McPherson) was the operator of several other fraudulent higher education institutions (diploma mills), including the University of San Gabriel Valley, Southland University, and LaSalle University (Louisiana.) He was indicted for fraud in 1996 and, after a plea agreement, was sentenced to five years in a federal prison.

August 8th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |

Navigating through civil case jurisdictions in state and federal court systems

Courts within the federal judicial system:

  • Federal district courts are courts of original jurisdiction. District courts, as all federal courts, are also courts of limited subject-matter jurisdiction, meaning that they have the authority to hear cases of a particular type or relating to a specific subject matter, primarily based on federal questions and diversity of parties. The statute for federal question jurisdiction, 28 U.S.C. § 1331, provides that the district courts have subject-matter jurisdiction in all civil actions arising under the Constitution, laws, and treaties of the United States. This jurisdiction is not exclusive; state courts also can hear claims based on federal law. The statute for diversity jurisdiction, 28 U.S.C. § 1332, provides the district courts jurisdiction in actions that meet two requirements: 1) complete diversity – no defendant is a citizen of the same state as any plaintiff, and 2) amount in controversy exceeds $75,000. Federal courts also have removal jurisdiction, which is the authority to try cases removed by defendants from state courts.
  • Circuit courts are courts of appellate jurisdiction as they are authorized only to review decisions on appeal from district courts, certain specialized federal courts or federal administrative agencies. There are thirteen federal circuit courts; twelve for each one of the geographic circuits and one designated as the Federal Circuit which hears appeals from various specialized federal courts. Appeals from many of the administrative agencies are held in the Court of Appeals for the District of Columbia Circuit.
  • United States Supreme Court has original jurisdiction over cases affecting ambassadors and actions in which states are parties. Its appellate jurisdiction over all other types of cases is mostly discretionary.

Courts within the state judicial system

  • Courts of limited subject-matter jurisdiction are authorized to hear specific types of cases, such as small claims, traffic, landlord-tenant, or probate.
  • Courts of original and general jurisdiction hear all cases not exclusively apportioned to courts of limited jurisdiction, such as state claims and federal questions that also could be brought in federal district courts. State courts of general jurisdiction are often at the county level, and vary in their designations, e.g., Superior Court in California, Circuit Court in Virginia, Court of Common Pleas in Ohio and Supreme Court in New York. In some states, courts of general jurisdiction also hold appellate jurisdiction over cases originally tried in courts of limited jurisdiction.
  • Intermediate appellate courts exist only in more populous states. In some jurisdictions, the decision of the intermediate appellate court is final for most fact-bound and “routine” cases, such as domestic relations, and subject to discretionary appeal for constitutional questions.
  • Courts of appellate jurisdiction are variously called the Supreme Court, the Court of Appeals, or, in Massachusetts, the Supreme Judicial Court, and have the authority to change decisions and rulings of lower courts. Depending on the case type and original decision, an appellate review may consist of an entirely new hearing (a trial de novo), a hearing whereby the appellate court gives deference to factual findings of the lower court, or a review of specific legal rulings of the lower court (an appeal on the record.) An appeal from the intermediate appellate court to this higher court is mostly by permission, with the exception of a small number of cases selected by legislatures, such as administrative law actions.

To decide a case, a court must have a combination of subject-matter jurisdiction (defined previously) and either personal jurisdiction (defined as having the power to render a judgment against a particular defendant) or territorial jurisdiction (defined as having the power to render a judgment involving events that occurred within a well-defined territory) along with adequate notice (a requirement that the parties be aware of the legal process affecting their rights, obligations and duties.)

July 28th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |

What is the difference between an expunged criminal record and a sealed record?

 

The words “expunged” and “sealed” often are used interchangeably. A ”sealed” record means that the record is hidden from the general public. An “expunged” record means that the record has been destroyed. In most states, arrests and convictions for serious, violent felonies usually cannot be expunged or sealed.

Each state has its own rules and laws for expungement, and some states label expungement as “expunction,” “removal,” or “destruction” (of criminal records.) But the record may not completely disappear and may be available to law enforcement and the federal government. In most states, for adults, arrest and conviction records are not automatically expunged or sealed after a period of years. For juveniles, court and arrest records are sealed automatically once the juvenile is arrested and a trial or “adjudication” begins.

The rules and laws for the sealing of criminal records also vary from jurisdiction to jurisdiction. In most instances, a court order to unseal a record is required. Some states order the records to be destroyed after they have been sealed. Further, once a record is sealed, in certain states, the contents/crime are legally considered never to have occurred and are not acknowledged by the state.

In most states, but with some exceptions, after a record is sealed or expunged, the subject may truthfully state that he/she has never been arrested, charged, or accused of a crime. However, as noted above, the federal government does not have to honor an expungement and an expungement of a conviction does not relieve a person from having to disclose it on an application for public office or on certain professional license applications.

July 21st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , |

Decoding criminal records in the UK

In the UK, a criminal record is technically any conviction in a court of criminal offence. However, many motor vehicle offences are not deemed as crimes for criminal record purposes, since such offences carry fixed penalties and are not considered criminal convictions. Offences that are prosecuted by local authorities are sometimes classified as criminal offences, although they are unlikely to be in the Police National Computer (the “PNC”). Even if an individual has accepted a “police caution” as an alternative to prosecution, this would count as a criminal conviction.

The Criminal Records Bureau standard and enhanced disclosures contain information about convictions, cautions, reprimands, and warnings retained in the PNC and the equivalent systems in Scotland and Northern Ireland. For the purposes of CRB disclosures, a caution, reprimand, or warning that has been entered into the PNC will constitute a criminal record.

Criminal convictions also are labeled as “spent” and “unspent.” A “spent” conviction is removed from public records, meaning that the defendant has served time and passed through a rehabilitation period. Until then, the conviction is “unspent.” Some convictions, such as crimes with a prison sentence of more than 2.5 years, remain “unspent” indefinitely, regardless of the elapsed time. For convicted minors under 18 years of age, the “unspent” period is cut in half.

During the “unspent” time, the conviction must be disclosed when applying for jobs and on other applications. And for certain jobs such as law enforcement, some roles in the financial services sector, prison services, health services, private security, and for work with children, the elderly, and disabled, “spent” convictions also must be disclosed.

July 20th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Can a person be denied a job or be terminated because of a bankruptcy filing?

Section 525 of the Bankruptcy Code provides two slightly different standards for government applicants and employees, and for private employers. The bankruptcy discrimination statute for government employees

[s.525(a)] states that:

[The government] may not…deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.

Section [s.525(b)] applies to private employers, and states that:

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

July 13th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

What’s wrong with using information from Facebook, MySpace, Friendster or personal Web sites for hiring decisions?

Some companies believe this is a cheap way to obtain information about an applicant. Unfortunately for the applicant, this type of background check is not covered by the Fair Credit Reporting Act (FCRA) if it is performed by the employer. And since the sites are not mandated to investigate and correct errors, the employer may miss out on hiring a qualified candidate. Additionally, much of the information posted on these sites cannot be discussed in an interview, and if not handled properly, the employer may be sued for claims under various anti-discrimination statutes, ADA, privacy laws, and state “off-duty” conduct statutes. Employers who use third-parties to conduct background investigations by searching social Web sites and Internet postings must comply with the FCRA, and thus explicitly state in the background check authorization that social networking and/or other such sites will be accessed. The FCRA does not prohibit employers from obtaining consumer reports that contain information compiled from Internet sites; however, employers are required to disclose to the applicant that the information was the basis of an adverse employment decision (Id. § 1681b(b)(3)(B)(i)(I).

Despite the liability exposure and unreliability of the information, various surveys show that employers do use information from social networking sites and blogs to support their decision to hire or disqualify an applicant. The most common causes for disqualification include:

  • Information or photographs about drinking or using drugs
  • Provocative or inappropriate photographs or information
  • Poor communication skills evident in postings
  • Bad-mouthing previous employer or fellow employee
  • Misrepresentation of qualifications
  • Discriminatory remarks related to race, gender, religion, etc.
  • Unprofessional or provocative screen name
  • Indications of criminal behavior
  • Posted confidential information from previous employers
July 1st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Update on Senate Bill 1045 (OL 2010. Ch. 102) which amends Oregon Revised Statute 659A.885 that restricts employer’s use of credit history in employment decisions

The Oregon Bureau of Labor and Industries published its final administrative rules regarding Senate Bill 1045 (OL 2010. Ch. 102). The regulations go into effect July 1, 2010. The Oregon Revised Statute 659A.885 specifically prohibits an employer from obtaining or using credit history for employment purposes of an applicant or employee unless that credit history information is “substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.” The state of Oregon set up a hotline (at 971-673-0824) to explain the new regulations. The regulations can also be viewed online at http://www.oregon.gov/BOLI/LEGAL/docs/RulesSoS0052010.pdf

July 1st, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

What laws require or influence background screening of volunteers?

Whether a volunteer is required by law to submit to a background check depends on the type of organization for which the volunteer work is performed. Several state and federal laws regulate health and public safety organizations, some of which require screening of both employees and volunteers. There are also other laws that provide protection to at-risk populations, especially children. One such law allows the public to access information about convicted sex offenders. For more information and a link to state sex offender registries, see the U.S. Department of Justice’s Child Exploitation and Obscenity Section at http://www.usdoj.gov/criminal/ceos/index.html.

The laws that facilitate an organization’s screening of volunteers are the Volunteers for Children Act of 1998 (VCA) Public Law 105-251, which amended the National Child Protection Act of 1993 (NCPA), 42 USC § 5119(a) a.k.a. “Oprah’s Law” allowing volunteer organizations to access federal criminal records, and the Fair Credit Reporting Act (FCRA), 15 USC §1681, if a background check is performed by a third-party background screening firm.

June 30th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

What are “specialty consumer reports?”

“Specialty consumer reports” are compiled by specialty consumer agencies for targeted users such as insurance companies, employers, and landlords. The agencies collect information from a variety of sources and may include civil and criminal records, credit history, bankruptcy filings, driving records, business relationship information with banks or insurance companies, and even medical information.

Most consumers are unaware of the existence of a “specialty consumer report” unless they have been denied a job, insurance, or housing rental. The Fair Credit Reporting Act (FCRA) imposes certain obligations on the specialty reporting agencies, the users of such reports, and those that furnish information for the reports. (See  http://www.ftc.gov/bcp/edu/pubs/business/credit/bus33.shtm for more information.) When adverse action is taken based on the information in the report, the FCRA mandates that users of specialty consumer reports provide to the subject an “adverse action notice” along with a free copy of the report. The subject also has the right to dispute inaccurate information.

June 30th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Alert Regarding Sexual Offender Data

A new California case came out March 23, 2010 that gives a background firm protection when it reports sexual offender data from the Megan’s Law Web site, and also clarifies that the prohibition of using sex offender registration information for employment does not apply when there is a person at risk.
For a quick review of the case, see:
http://www.esrcheck.com/wordpress/1440/california-case-protects-constitutional-right-of-background-screening-firm-to-report-sex-offender-registration.
The actual case can be found at:
http://www.courtinfo.ca.gov/opinions/documents/B214653.PDF

March 26th, 2010|Categories: Compliance Corner for Employment Decisions|Tags: |
© 2012- SCHERZER INTERNATIONAL | ALL RIGHTS RESERVED
Go to Top