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Food Lion Job Applicants Reach $3M Background Check Class Action Settlement

A group of job applicants say they support the almost $3 million class action settlement reached with Food Lion, LLC and its parent company Delhaize America, LLC over allegedly illegal background check procedures by the east coast grocery store chain. Lead plaintiff Jeneen Brown is asking the North Carolina federal judge to approve the class action settlement for the almost 60,000 class members in the March 2 memorandum in support of the unopposed motion for preliminary approval of the class action settlement.

The class is for those who applied to work at grocery store chains owned and operated by Delhaize America such as Food Lion, Hannaford, Bottom Dollar, Harvey’s Supermarket and Sweetbay.

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Fourth Circuit Deals Body Blow To EEOC Hiring Check Enforcement Litigation

The U.S. Court of Appeals for the Fourth Circuit dealt a lethal blow to the EEOC’s hiring check enforcement litigation inEEOC v. Freeman, No.13-2365 (4th Cir. Feb. 20, 2015). The decision affirms a summary judgment ruling by Judge Roger Titus of the U.S. District Court for the District of Maryland last August (discussed here ), which dismissed the EEOC’s nationwide pattern or practice lawsuit due to the EEOC’s reliance on “laughable” and “unreliable” expert analysis. The EEOC had alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. In today’s ruling, the Fourth Circuit unanimously affirmed Judge Titus’ rejection of the “utterly unreliable analysis” of the EEOC’s expert, while a concurring judge went out of his way to chide the EEOC at length for its litigation tactics across this line of systemic background check cases.

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Showdown at The Fifth Circuit Continues: Texas Gets The Last Word On Its Challenge To The EEOC’s Criminal Background Guidance

Last year the U.S. District Court for the Northern District of Texas dismissed a high profile lawsuit brought by the State of Texas against the EEOC regarding the its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII.” The District Court held that Texas lacked standing to maintain its suit because it did not allege that any enforcement action had been taken against it in relation to the EEOC’s guidance.

Texas filed an appeal with the U.S. Court of Appeals for the Fifth Circuit seeking to overturn the dismissal of its novel lawsuit. On January 8, 2015 the EEOC filed its opposition brief and now Texas has filed its reply brief and it is a “must read” for all employers caught in the crosshairs of the EEOC’s aggressive litigation approach concerning its criminal background guidance.

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EEOC May Have to Rethink Legal Approach to Criminal Background Cases

The U.S. Equal Employment Opportunity Commission may change its approach to criminal background and credit check cases it brings against employers now that a second appeals court has criticized the quality of its statistical analysis. “They’ll need to rethink their methodology” in proving employers improperly used criminal and credit background checks in hiring, said Patrick M. Muldowney, a partner at law firm Baker & Hostetler L.L.P. In the latest ruling, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, said the agency used poor-quality data as evidence in a case that accused Dallas-based trade show firm Freeman Decorating Services Inc. of using criminal background checks in hiring that had a disparate effect on minorities. The ruling affirms what many critics have said, that the “EEOC sues first and asks questions later,” said Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P.

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How to Comply with the New Jersey ‘Ban the Box’ Law

In New Jersey, The Opportunity to Compete Act, otherwise known as the “Ban the Box” bill, restricting employers from inquiring about an applicant’s criminal background during the initial stages of the application process, became effective March 1, 2015. The Act applies to employers employing least 15 employees over 20 calendar weeks who do business, employ persons, or take applications for employment within New Jersey.

The Ban the Box law prohibits employers from: (1) requiring an applicant to complete any employment application that makes any inquiries regarding the applicant’s criminal record; or (2) making any oral or written inquiry regarding an applicant’s criminal record during the “initial employment application process.” This “initial employment application process” begins when an applicant or employer first makes an inquiry to the other party about a prospective position and concludes when the “employer has conducted a first interview, whether in person or by any other means, of an applicant for employment.”

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New Michigan Law Expands The Types Of Criminal Records Applicants & Employees Can Refuse To Disclose To Employers

Existing Michigan law has served to prevent private employers from considering criminal records “set aside” by law (more commonly known as expungement) in hiring and personnel decisions. An amendment to that law, which took effect on January 12, expands the circumstances under which ex-offenders may seek to set aside their criminal records and, thus, may further inhibit employers from accessing the criminal records of their applicants and employees. Employers who violate the law are subject to imprisonment of not more than 90 days and/or a fine of not more than $500.

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Employers: What You Need To Know If You Conduct Background Checks – Despite Its Name The FCRA Does Not Just Apply To Credit Reporting

Your decision to hire a new employee or promote an existing one may depend on the findings of a background check. Did you know that you need to comply with the Fair Credit Reporting Act (the “FCRA”) if you perform background checks? The FCRA applies to all background checks done on an employee or applicant if the employer uses a third party consumer reporting agency (“CRA”). A “consumer report” encompasses criminal and civil records, driving records, civil lawsuits and reference checks. To comply with the FCRA, an employer who is seeking to obtain a consumer report from a CRA for its employees or applicants must: disclose clearly, conspicuously, and accurately the employer’s intent to obtain a consumer report in connection with his or her current or potential employment; obtain express authorization from the employee/applicant to obtain the report; give the employee/applicant pre-adverse action notice prior to taking adverse action if you intend to take adverse action based upon the information obtained in the report; and provide the employee/applicant with an adverse action notice after taking the adverse action.

Failure to comply with the FCRA can subject an employer to fines and penalties, as well as civil and criminal lawsuits.

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Legal Marijuana Blurs Workplace Drug Policies

Since California became the first state to permit the sale and possession of medicinal marijuana in 1996, 22 other states and the District of Columbia have passed similar legislation.

More recently, recreational marijuana use has been legalized in four states – Alaska, Oregon, Washington and Colorado – as well as Washington, D.C.

As a result, employers with operations in states where marijuana prohibitions have been relaxed or vacated are challenged to enforce workplace anti-drug policies. In particular, experts say employers could see more employment practices liability claims, driven primarily by lawsuits brought by employees who were fired, disciplined or denied a job based on their use of marijuana in violation of company policies.

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Employee’s Request to Provide Information Excusing Positive Drug Test Could Trigger Obligation to Engage in Interactive Process

An employee’s request to provide medical documentation excusing a positive drug test could trigger an employer’s obligations to engage in the interactive process, according to a recent decision by the United States District Court for the Eastern District of Pennsylvania. Jodi Hammel v. SOAR Corp., 2015 U.S. Dist. LEXIS 14361 (E.D.Pa. Feb. 6, 2015).

Hammel filed suit, alleging SOAR violated the ADA by failing to accommodate her disability. The Court determined that a jury could have interpreted Plaintiff’s request to provide medical documentation excusing her drug test as a request for accommodation, thereby triggering SOAR’s legal obligation to engage in the interactive process.


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Anonymous Second-Hand Tip Did Not Establish Reasonable Suspicion for Public Employee Drug Test

A tip regarding employee on-the-job drug use by an unidentified source, relayed second-hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test, according to a recent court decision. Ralph Greer, Jr. was employed by the Detroit Department of Water and Sewage (DWSD). During a project, a television reporter contacted DWSD saying an anonymous source saw him smoking marijuana in a DWSD vehicle. Without any additional corroboration, Greer was instructed to submit to a urine drug test. Greer refused and was discharged. The court found that DWSD was obligated to establish the reliability of the anonymous tip before conducting a search based on it. Because DWSD did not, the Court concluded that the anonymous tip did not provide the individualized reasonable suspicion sufficient to require Greer to submit to a urine drug test.

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Employment Protections Under Medical Marijuana Laws: The Changing Landscape

Sixteen states, plus the District of Columbia, have enacted legislation that affords protections to qualifying individuals with debilitating medical conditions by allowing them to lawfully engage in the medical use of marijuana.

The following six states have pending legislation that would decriminalize the use of medical marijuana: Illinois, Massachusetts, New Hampshire, New York, Ohio, and Pennsylvania. In 2011, eleven other states considered, but ultimately rejected, legislation that would decriminalize the use of medical marijuana. 2

Delaware recently joined this growing trend among states when it enacted the Medical Marijuana Act (the Act). The Act is noteworthy, in that it extends certain employment protections to medical marijuana users. Only a few other states have done so, but it is likely that more will follow.


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Posted Under: EBI

Post By Barry Nixon (262 Posts)

W. Barry Nixon is the COO, the leading background screening information portal and online worldwide directory of professional background screening firms and Suppliers to the background screening industry. He co-authored the landmark book, Background Screening & Investigations: Managing Hiring Risk from the HR and Security Perspective. He also is the publisher of award winning newsletters, The Background Buzz and The Global Background Screener, and the author of the Background Checks column in PI Magazine.

In addition, Barry is a past recipient of the elite ‘Top 25 Influential People in Security’ by Security Magazine and past Co-Chair, International Committee for the National Association for Professional Background Screeners (NAPBS). He currently serves as a Global Ambassador for NAPBS.

You can contact Barry at 1-949-770-5264 or online at