EMPLOYMENT BACKGROUND CHECKS
Employment Screening Background Check Services In Washington State
All employment screening services including pre-employment drug screening and pre-employment criminal record background checks are available in Washington state.
Recent ruling concerning release forms by ninth circuit.
Single combined state and Federal release forms no longer adequate.
Employers conducting background checks in Alaska, Arizona, Idaho, Montana Nevada, Oregon and Washington State should be aware of this ruling and take steps to comply with this ruling.
In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019),
the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws.
Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms:
(1) disclosure and consent under Fair Credit Reporting Act; and
(2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act
(or other applicable state law).
CLEAR AND CONSPICUOUS LANGUAGE
By including release/authorization language related to the required state form, or any other required disclosure or release, the court also ruled that the combination form violated the FCRA because it contained “extraneous information and was as likely to confuse as it was to inform.”
The court also found that the CheckSmart Financial LLC, release form also contained language that a reasonable person would not understand.
Specifically, the court cited this sentence:
“The scope of this notice and authorization is all-encompassing; however, allowing CheckSmart Financial, LLC to obtain from any outside organization all manner of consumer reports and investigative consumer reports now and, if you are hired, throughout the course of your employment to the extent permitted by law.”
First, the court found that this sentence did not explain how the notice was all-encompassing.
Moreover, it did not disclose the impact that authorization would have on a prospective employee’s rights.
In addition, the court cited the portion of the sentence after the semicolon.
It found that it was incomplete, lacked a subject and that the drafting may have caused confusion as to the possible limits of the authorization
What should employers do?
1. Obviously, Avoid Combining Any Other Release Or Disclosure Forms
2. Use Standalone Easy To Read and Understand Documents Only
3. Use Large Font, at least 12 point
4. Separate Subjects In The disclosure Language With Bold Title Headers
5. Use Plain Language And Avoid Legal Terminology
National Employment Screening provides professional pre employment screening services to Washington employers to help you protect your employees and clients from the costly effects of making a “Bad Hire.”
Our criminal records Smart Search Plus® has become the industry standard for a quality criminal records background check.
It includes an unlimited check of the Federal criminal records repositories in the states where the applicant has lived for the past 7 years.
It also includes an FCRA compliant check of any needed state and county criminal records checks as well as a social security number address history trace, a multi-state criminal records database search and a check of of the sex offender registry in all 50 states .
It is the criminal records background check now chosen by most of our clients. For a brief overview of all of our employment screening services, please Click Here
We serve Seattle, Spokane, Tacoma, Blaine, Gig harbor, Van Couver, Olympia and all other Washington cities.
Use Of Social Media In Washington Pre-Employment Screening:
Washington state law prohibits employers from requesting personal social networking account login information from employees or applicants; allows employers to require disclosure of employees’ social media content in situations where necessary to comply with a federal law (2013).
Employment screening law: Giving Employment References In Washington
An employer that discloses information about a current or former employee to a prospective employer or an employment agency, at that employer or agency’s specific request, is presumed to be acting in good faith and is immune from civil or criminal liability.
This immunity applies, however, only if the disclosure relates to one of the following: the employee’s ability to perform the job, the employee’s diligence, skill, or reliability in carrying out his or her duties, or any illegal or wrongful act committed by the employee that is related to the duties of his or her job.
The statute further establishes that the presumption of good faith may be rebutted only upon a showing of clear and convincing evidence that the information disclosed was knowingly false, deliberately misleading, or made with reckless disregard for the truth.
This is a much higher standard than that required in most civil proceedings (more likely than not), but is the same standard already applied by the courts in these cases.
Washington restricts vendor reporting of criminal conviction information to seven years:
Washington waives the seven year time limit if the applicant is reasonably expected make more than $20,000 per year.
Washington (Enacted 1993)
No CRA may report “records of arrest, indictment, or conviction of a crime, which from the date of disposition, release, or parole, antedate the report by more than seven years.
Washington employment screening law:
Employers can get criminal history information only for specified purposes, which include pre-employment background checking as it relates to that applicant’s fitness to perform the particular job sought.
Employers must notify the employee or prospective employee that they are making an inquiry into their criminal record and must make the records available to the employee.
Reference: Washington Admin. Code, Chapter 162, Sections 162-12-100et se
Washington State employment screening: At Will Law
Washington pre employment screening law states that employees are presumed to be “at will.” At-will employees may be terminated for any reason, so long as it is not illegal.
Generally, employees that work under an employment contract can only be terminated for reasons specified in the contract.
In Washington, in order to overcome the at-will presumption, an employee must show that the employer made clear and unequivocal statements of job security to the employee.
The most common exception to employment-at will is for public policy. This holds that an employee is wrongfully discharged if the termination is counter to an explicit policy of the government.
One example is the discharge of an employee for filing a workers’ compensation or ADA claim.
The Washington State Patrol’s Crime and Safety page provides information about crime prevention, criminal history, forensic services, investigative services and task forces, missing persons, most wanted criminals, as well as other criminal justice and public safety resources.
· Identification and Criminal History Section and WATCH
The Identification and Criminal History Records Section (Section) provides information on how to obtain criminal history record information (CHRI) by mail or online through the WATCH website, as well as information about Compromised Identity Claims.