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Employers should make sure that any background check they perform is job related and consistent with business necessity. As advised during the recent 2013 Workplace Strategies seminar, the Equal Employment Opportunity Commission (EEOC), worker advocacy groups and plaintiff attorneys are not giving employee and applicant credit and criminal background checks intense scrutiny.
To avoid EEOC charges of disparate treatment or disparate impact based on a background check, an employer should follow four essential steps:
These steps involve the interplay of federal law including Title VII and the federal Fair Credit Reporting Act (FCRA) as well as state mini FCRAs.
When an Employer May Request a Background Check
According to the EEOC, employers must ensure that there is a direct connection between the type of background check performed and the individual applicant’s or employee’s job duties and that a particular type of background check is done for all applicants and employees in certain positions (not just certain applicants or employees) if there is not an individualized, specific reason for the background check.
The starting place is the job title. For example, while there would be a strong business justification to run a credit check on a CFO, there would not be a justification for a credit check for a janitor. The next step is to consider the nature of the job –whether it involves activities like data entry or just lifting boxes- and the circumstances in which the job is performed. Consider the level of supervision involved and whether there is interaction with vulnerable adults. Finally, take into account the location where the position is performed.
Requesting a background check requires the employee or applicant to sign a disclosure and authorization form that is separate from other documents, such as the employment application. Be sure to list and describe the background check information being requested and reviewed but don’t include a release from liability as that would invalidate the consent.
If the employer receives negative information about the applicant or employee, the FCRA requires that a pre-adverse- action letter be sent to the individual if there is potential for an adverse employment action. Title VII requires the employer to conduct an individualized assessment and send an action letter.
The individualized- assessment process must give the applicant or employee an opportunity to provide additional facts or context to explain why the background check’s finding should not be applied in his or her case. It is advised to ask for the response from the employee in writing as it exhibits the seriousness of your position and establishes a record. If the individual does not respond, the employer may make the employment decision without the extra information.
Criminal Checks
It is cautioned that employers generally should not use arrest information in making employment decisions, but rather consider if you would exclude the applicant if there was a conviction.
With regard to convictions, EEOC’s 2012 guidance on Title VII and background checks strongly recommends that employers use a targeted screening process that takes into consideration the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought.
The EEOC does not provide guidance on the time period to cover when looking into criminal records. Many employers use a seven year period, but it is best to consider a longer time frame if it is deemed appropriate for your business activities.
State Law
Several states have mini-FCRAs that restrict employers from requesting certain types of background checks. Currently, 11 states (California, Connecticut, Hawaii, Illinois, Maryland, New Jersey, Ohio, Oregon, Pennsylvania, Vermont, and Washington) limit an employer’s ability to run a credit background check. Similar legislation is pending in 13 other states as of 2013.
In addition, 12 states have state-specific disclosures that must be included on the disclosure and authorization form and some states require an employer to customize its form by position or type of check being run. In California, for example, employers must identify the specific state statutory basis authorizing them to request and use a credit report.
There are no state law restrictions on requesting criminal check however.
A provision of Health Care Reform requires employers to provide a notice to all employees regarding the availability of health coverage options through the state-based exchanges. The Department of Labor delayed the original requirement that the notice be distributed by March 1, 2013, as it was determined that there was not enough information regarding exchange availability.
The DOL recently issued temporary guidance along with a model notice. The DOL has issued the model notice early so employers can begin informing their employees now about the upcoming coverage options through the marketplace.
Two model notices were released by the DOL. One is for employers who currently offer medical coverage and the other is for those who do not offer medical coverage.
Employers are required to issue the exchange coverage notice no later than October 1, 2013. This will coincide with the beginning of the open enrollment period for the marketplace.
The notice must be provided to all employees, regardless of their enrollment on the group health plan. It must be provided to both full time and part time employees as well. Employers are not required to provide a separate notice to dependents. Employers will need to provide the notice to each new employee (regardless of their status) who are hired on or after October 1, 2013 within 14 days of their hire.
An exchange coverage notice must include –
The DOL also modified its model COBRA election notice to include information about the availability of exchange coverage options and eliminate certain obsolete language in the earlier model.
Please contact our office for a copy of the model notice(s).
The Patient Protection and Affordable Care Act (the “ACA”) adds a new Section 4980H to the Internal Revenue Code of 1986 which requires employers to offer health coverage to their employees (aka the “Employer Mandate”). The following Q&As are designed to deal with commonly asked questions. These Q&As are based on proposed regulations and final regulations, when issued, may change the requirements.
Question 3: When Is the Employer Mandate Effective and What Transition Rules Apply?
Large employers are subject to the Employer Mandate beginning on January 1, 2014. However, the effective date for employers that have fiscal year health plans is deferred if certain requirements are met. There are also special transition rules for offering coverage to dependents, offering coverage through multi-employer plans, change in status events under cafeteria plans, determining large employer status, and determining who is a full-time employee.
Fiscal Year Health Plans
An employer with a health plan on a fiscal year faces unique challenges concerning the Employer Mandate. Because terms and conditions of coverage may be difficult to change mid-year, a January 1, 2014 effective date would force fiscal year plans to be compliant for the entire fiscal 2013 plan year. Recognizing the potential burdens, the IRS has granted special transition relief for employers that maintained fiscal year health plans as of December 27, 2012. Both transition relief rules apply separately to each employer in a group of related employers under common control.
Coverage of Dependents
Large employers must offer coverage not just to their full-time employees but also to their dependents to avoid the Employer Mandate penalty. A “dependent” for this purpose is defined as a full-time employee’s child who is under age 26. Because this requirement may result in substantial changes to eligibility for some employer-sponsored plans, the IRS is providing transition relief for 2014. As long as employers “take steps” during the 2014 plan year to comply and offer coverage that meets this requirement no later than the beginning of the 2015 plan year, no penalty will be imposed during the 2014 plan year solely due to the failure of the employer to offer coverage to dependents.
Multiemployer Plans
Multiemployer plans represent another special circumstance because their unique structure complicates application of the Employer Mandate rules. These plans generally are operated under collective bargaining agreements and include multiple participating employers. Typically, an employee’s is determined by considering the employee’s hours of service for all participating employers, even though those employers generally are unrelated. Furthermore, contributions may be made on a basis other than hours worked, such as days worked, projects completed, or a percentage of earnings. Thus, it may be difficult to determine how many hours a particular employee has worked over any given period of time.
To ease the administrative burden faced by employers participating in multiemployer plans, a special transition rule applies through 2014. Under this transition rule, an employer whose full-time employees participate in a multiemployer plan will not be subject to any Employer Mandate penalties with respect to such full-time employees, provided that:
(i) the employer contributes to a multiemployer plan for those employees under a collective bargaining agreement or participation agreement
(ii) full-time employees and their dependents are offered coverage under the multiemployer plan, and
(iii) such coverage is affordable and provides minimum value.
This rule applies only to employees who are eligible for coverage under the multiemployer plan. Employers must still comply with the Employer Mandate under the normal rules with respect to its other full-time employees.
Change in Status Events under Fiscal Year Cafeteria Plans
The IRS has also issued transition rules that apply specifically to fiscal year cafeteria plans. Under tax rules applicable to cafeteria plans, an employee’s elections must be made prior to the beginning of the plan year and may not be changed during the plan year, unless the employee experiences a “qualifying event”. An employee’s mid-year enrollment in health coverage through an Exchange or in an employer’s health plan to meet the obligation under the ACA’s individual mandate to obtain health coverage is not a “qualifying event” under the current cafeteria plan rules.
The IRS addresses this by providing that a large employer that operates a fiscal year cafeteria plan may amend the plan to allow for mid-year changes to employee elections for the 2013 fiscal plan year if they are consistent with an employee’s election of health coverage under the employer’s plan or through an Exchange. Specifically, the plan may provide that an employee who did not make a Sec. 125 election to purchase health coverage before the deadline for the 2013 fiscal plan year is permitted to make such an election during the 2013 fiscal plan year, and/or that an employee who made a Section 125 election to purchase health coverage is permitted to revoke/change such election once during the 2013 fiscal plan year, regardless of whether a qualifying event occurs with respect to the employee.
This transition rule applies only to elections related to health coverage and not to any other benefits offered under a cafeteria plan. Any amendment to implement this transition rule must be adopted no later than December 31, 2014 and can be retroactively effective if adopted by such date.
Determining Large Employer Status and Who is a Full-Time Employee
The IRS has also issued transition rules for determining large employer status and determining who is a full-time employee. In general, large employer status is based on the number of employees employed during the immediately preceding year. In order to allow employers to have sufficient time to prepare for the Employer Mandate before the beginning of 2014, for purposes of determining large employer status for 2014 only, employers may use a period of no less than 6 calendar months in 2013 to determine their status for 2014 (rather than using the entire 2013 calendar year).
The official revised Employment Eligibility Verification Form I-9 was released March 8, 2013 by the U.S. Citizenship and Immigration Services (USCIS).
Employers should begin using this new form immediately. The new Form I-9 will contain a revision date of 03/08/13 that is located on the bottom left-hand corner of the form.
Final Changes to the Form I-9
The revised Form I-9 makes several improvements designed to minimize completion errors. The key revisions to Form I-9 include:
60-Day Grace Period
Prior versions of the I-9 will no longer be accepted and should not be used after May 7, 2013. The agency is providing employers 60 days to make the necessary internal changes in their business processes to implement the new form.
The new I-9 form can be downloaded here.
A Spanish-language version of the new Form I-9 is available, however may only be filled out by employers and employees in Puerto Rico only.
Handbook for Employer
The M-274 Handbook for Employers is in the process of being updated as well. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised handbook has been updated.
Employers are required to maintain an I-9 for as long as an individual is employed and for the required retention period following their employment termination, which is the later of three years after the date of hire or one year after the date employment ended.
Failure of an employer to ensure proper I-9 completion and retention may subject the employer to civil monetary penalties, and possibly even criminal penalties.
USCIS noted that employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.