Rod Fliegel
Shareholder, Littler Mendelson

Implementing and overseeing an effective workforce employment screening program requires a certain amount of specialized knowledge. Thus, companies are increasingly recognizing the importance of finding or nominating a subject matter expert (SME) - someone who knows that the Fair Credit Reporting Act (FCRA) applies to virtually all background check reports, not just credit reports.

Truly, the importance of the SME cannot be overstated. The SME plays a valuable role by:
•working with senior leadership to identify specific needs the business has (for example, satisfying regulatory requirements, contractual stipulations or customer-mandates for background checks);
•working with senior leadership and security personnel to identify risks to key areas of the business (for example, positions where employees are entrusted with sensitive responsibilities or sensitive information - such as proprietary information, Social Security numbers and credit card numbers);
•partnering with Human Resources, recruiters and the IT department to smoothly and sensibly integrate background checks into the hiring process (for example, coordinating the workforce screening process with offer letters, employment applications and HRIS systems);
•taking "ownership" of aspects of the hiring process that are unique to background checks (for example, specific federal, state and local laws regarding the use of credit and criminal history information);
•partnering with the procurement department to enter into an agreement with a background check provider that can meet the specific needs of the company (for example, providing timely background check reports with state of the art and secure technology, adjudicating hiring decisions for the company, mailing out "adverse action" letters for the company, etc.); and
•serving as the liaison between the background check provider and the company (for example, reviewing alerts about new regulations and raising compliance issues with the management team).

In our opinion, too many companies make the mistake of delegating responsibility over their workforce screening program to workers without enough bandwidth or experience to serve as effective SMEs. A workforce screening program is an indispensable component of every company’s broader risk-management strategy. Reputable background check providers (such as HireRight) will offer many compliance-related resources, including template documents, best practice recommendations and legal alerts about impending legislative developments. Ultimately, though, someone at the company must guide decisions by the business about how it wants to safeguard against the risks that are particular to the organization. Finding or nominating a bona fide SME will facilitate informed and meaningful decision making about the company’s options.

Case Study:
In one recent federal Circuit Court decision involving a claim by the plaintiff that the employer’s conviction-based screening policy had an illegal “disparate impact” on minorities, the court absolutely took the employer’s witnesses to task for their inability to answer even basic questions about the policy. El v. Southeastern Pennsylvania Transp. Authority (SEPTA), 479 F.3d 232, (3rd Cir. 2007). The court stated:

In response to [the plaintiff] El’s interrogatories, [the defendant] SEPTA named 11 employees and former employees that could speak to the business necessity of SEPTA’s policy. Of those 11, El deposed eight of them. . . . Reading through those depositions, it is striking that not one of the witnesses that SEPTA named was able to explain-beyond a general concern for passenger safety—why this particular policy was chosen from among myriad possibilities. Even Vincent Walsh, the drafter of the policy, could provide little insight into how the policy was written, on what research or information it was based, or why it was structured as it was.

This inability is particularly striking given that the policy SEPTA claims it applied makes distinctions among crimes, setting apart some crimes for a life-time ban from SEPTA employment and applying a seven-year ban to others. If the policy were developed with anything approaching the level of care that [U.S. Supreme Court decisions] seem to contemplate, then we would expect that someone at SEPTA would be able to explain how it decided which crimes to place into each category, how the seven-year number was selected, and why SEPTA thought a lifetime ban was appropriate for a crime like simple assault. Almost all of El’s relevant questions about the policy were met with silence from SEPTA personnel, suggesting the reasonable inference that SEPTA has no real basis for asserting that its policy accurately distinguishes between applicants that do and do not present an unacceptable level of risk.