Our recomendation

I have had some questions come to us after our webinar last week.  Here are a few recommendations.  and some are specific for Utah.  Here were a couple of the questions:

You indicated that in order to help us become more compliant, there may be some information within VICTIG to help us with a  written policy that:

  • Defines FCRA Guidance including adverse action
  • Defines EEOC Guidance including use of Green Factors and Individualized Assessment

So far, I’ve been unable to locate that information; is this something you can help me find?

I’d also like to ask you to explain the criminal matrix; do you have an example?


I suggest utilizing language straight out our the service agreement under section 2 B (see language below).  The only specific law to Utah that relates to you as an employer is found in the State Department of Labor Guidelines which states that employers may not ask about arrests without convictions. http://www.rules.utah.gov/publicat/code/r606/r606-002.htm  I would also include a copy of the adverse action flow chart that I have attached.  The great thing is utilizing our quick app feature takes care of all your obligations prior to ordering the the background check and if you need to take adverse action against someone, we’ve got that taken care of for you in the system as well.

  • EEOC Guidance

This is more complicated.  Here is the link to the actual guidance that was published last week http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

What I suggest you do is the following;

  • Identify each job class that you have i.e. Administration, clerical, secretarial, customer care, sales, development, etc.  The EEOC wants you to define each position but I think that is too much.  For each job class, you need to define job requirements and circumstances under which the jobs are performed (level of supervision, oversight, interaction with co-workers, vulnerable individuals, access to cash, warehouse, private homes, security, etc.)
  • Determine the specific offense types that may demonstrate unfitness for performing such jobs  (use the criminal matrix)
  • Determine the time lapsed where you would feel that particular conduct does not affect suitability for that position type (use the criminal matrix)
  • Document your justification for your policy
  • Keep record of consultations/research considered in crafting the policy (document time spent with legal council, attending webinars, any statistics)
  • Train your staff and decision makers

Also, you need to discuss two items within the EEOC guidance.

1.  The Green Factors

    • The nature and gravity of the offense or conduct
    • Time passed since the offense, conduct or completion of sentence
    • Nature of job held or sought

2.  Individualized Assessment

    • You inform the individual that he/she may be excluded based on past criminal conduct
    • Provide an opportunity for the individual to demonstrate/provide additional information that could lead you to make an exception
    • Consider the information to determine if the policy as applied to that person is not job related or consistent with business necessity

I recommend stating in your policy that you have utilized the three Green factors in developing your policy and then show how you have used them.  In addition, you need to state that the organization has adopted individualized assessment to inform…provide an opportunity…and consider.  We are in the process of adding language to our pre-adverse action letter within the software which will allow you to both inform the individual and provide opportunity to thus comply with individualized assessment.

LASTLY, we are going to do the EEOC guidelines webinar again on Tuesday, May 8th at 2:00 pm.   https://www2.gotomeeting.com/register/939145754 space is limited

referenced documents/language:

B. Client represents that prior to requesting a report for employment purposes (including contractors and volunteers), it will:

i. disclose to the individual who is the subject of the report that a consumer report or, as applicable, an investigative consumer report, may be obtained;

ii. obtain the written consent of the individual allowing the obtaining of the consumer report;

iii. provide to the individual a summary of the individual’s rights required under the (“FCRA”) and any applicable state law; and

iv. not utilize any information in violation of any federal or state equal employment opportunity law or regulation.

v. that a reasonable amount of time prior to taking adverse employment action against the individual who is the subject of the report, when such action will be based in whole or in part upon the information contained in the report furnished by VICTIG, the Client will, except as otherwise provided by law, advise the subject of the intent to take adverse action and provide a copy of the report to the individual and a description, in writing, of the individual’s rights under the FCRA.

vi. that after taking adverse action based in whole or in part upon information contained in a report furnished by VICTIG, the Client shall:

  1. provide notice of such action to the individual;
  2. provide the name, address and telephone number of VICTIG; and
  3. inform the individual that he/she is entitled to a free copy of the report and a right to dispute the record through VICTIG and that VICTIG is unable to provide the individual the specific easons why the adverse action was taken by you.

vii. that it will comply with the FCRA and similar state laws, in regard to all reports, it will follow the requirements of the (“DPPA”) and the various state laws implementing the DPPA in regard to motor vehicle reports.


adverse action flowchart


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