Background Checks: You May Be Sued If You Run Them

The Obama Administration may sue you for running a background check.  Period.  The Equal Employment Opportunity Commission (EEOC) WILL SUE YOU if you base your refusal to hire only upon a criminal history!  In classic knee jerk reaction all the National and Regionals have decided to require Contractors and their Subcontractors roll out information on themselves by any means necessary.  First and foremost, this plays right in with my claims towards Service Contract Act (SCA) violations.  Why?  Well, it should be apparent that Companies do not have Social Security Numbers (SSN).  I was speaking with two  Regional Order Mill owners last week about this exact problem.  It is extremely difficult to justify to the Internal Revenue Service (IRS) why on the one hand you are issuing 1099MISC to Companies and yet not paying in compliance with SCA and then you want personal SSNs on the other.

The US Government confronted this very same problem years ago.  They began to implement the DUNS Number to Companies to formally track them (it is actually REQUIRED to do business with the US Government) and then they implemented the SAM Account Platform (SAM) to background check them and cross verify their status across many Agencies including the IRS to ensure they are not ax wielding rapists and legally allowed to perform work in the United States.

So, now we have Cyprexx, Safeguard Properties (SGP) and a half dozen other Companies demanding that you provide inordinate amounts of information to them either directly or AND I EMPHASIZE HERE WITHOUT YOUR PERMISSION by other Contractors.  Let me walk you down this little path of liability:  Jonny is working for Jimmy whom holds a Contract with SGP.  Klein and the boys up there demand that Jimmy provide my info to them.  Jimmy sends it via his laptop — the SAME laptop he is watching porn on — unencrypted.  It is both a civil and CRIMINAL matter.  Make no mistake and I put every Company we have ever worked for on Notice, we will sue you into the Stone Age if we EVER find out our information has been sent without a Release.  Not a Release for the Outfit I work for, but one executed between me and the Prime!  We will sue you, sue the National or Regional and we will win.  We will go even further, we will ensure you are sent to Prison!  Nevada and Massachusetts both partnered on a law back in 2010 which MANDATES ENCRYPTION of an employee data:

The statute requires encryption in two circumstances. First, electronic transmissions of Personal Information must be encrypted unless the transmission (a) passes within a secure network, or (b) is sent by fax machine. This means that intracorporate e-mail will not need to be encrypted as long as e-mails do not pass over the public Internet (which usually is the case). However, all e-mail to third parties, i.e., e-mails that do pass over the public Internet containing Personal Information, will need to be encrypted.

Second, no “data storage device” which contains Personal Information may be taken off-site unless the Personal Information is encrypted. The new law’s broad definition of “data storage device” includes laptops, iPhones, BlackBerrys, back-up tapes and disk drives, as well as virtually any other electronic device that can store Personal Information.

Employers who fail to comply with the law will be easily discovered. Because Nevada’s security breach notification law provides a safe harbor from notification for Personal Information that is encrypted, any notice of a security breach that discloses the loss or theft of a laptop, portable digital assistant, back-up tape or other electronic storage medium effectively would constitute an admission that the employer failed to comply with Nevada’s encryption requirement. Because that failure would violate a statutory standard, the absence of encryption most likely would be deemed negligent.

Let me back up a moment, though.  These National and Regional Order Mills are ignorant at best as they are not even sending out any information on precisely how the Contractors are to begin to run the background checks.  In typical bureaucratic mentality, the National and Regional Order Mills like PK Management are laying the financial burden upon the shoulders of the same Contractors they have already financially destroyed.  As if that is not enough, there is absolutely no guidance with respect to what criteria is being used to deny people work.  While Society at large may or may not agree with whether or not people with criminal histories should work, the law leaves absolutely no wiggle room,

“An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.”  Equal Employment Opportunity Commission (EEOC) memorandum, “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964

… using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups, and thus cannot be used in this way.

So, the main reason for this Article is that I was hired by two National Association of Mortgage Field Service (NAMFS) Members as a Consultant to do a liability take off for them.  Laudable as the National and Regional Order Mill’s goals may be, they and YOU may be sued — I actually encourage litigation!!!  Why?  Well, the US Government already has a system in place to render hiring decisions!  The DUNS and SAM Accounts exist for precisely this reason — IF YOU ARE HIRING A COMPANY!!!  Once again, are you hiring me in my personal capacity or in my business capacity.  Let me be real clear here because your lawyer is going to tell you the same:  Are you going to be sued in your Individual or Official Capacity; are you acting Under Color of State Law?!

It is time for these obscenely wealthy National and Regional Order Mills to begin to follow the law.  Stop laying all the burden and liability upon the shoulders of Contractors.  Just out of curiosity do Order Mills have to submit in the same way?  Hmnn?  Am I entitled to view the background checks of the Vendor Managers handling my work and issuing my pay?  No, we all know the answer there.  That is why I categorically encourage Discrimination Lawsuits to be filed by the droves.

I can picture the scene now:  An African American male whom took a plea 16 years ago for jaywalking gets denied because his name shows up in the National Crime Information Center (NCIC) — or more appropriately some bullshit background check company screws up the report — and the American Civil Liberties Union (ACLU) steps up to the plate.  I actually spoke with a lawyer for the ACLU last Monday about this situation.  I am deeply concerned that in the same way the Prime Vendors whom hired PPMS and targeted African American Females to defraud, this “background checking” is going to play out identically.

This is also being required of Real Estate Brokers.  Let me get this straight now Eric Miller, a broker whom has a state license that required a background check now has to pay yet more money to run another one?  You see, the NAMFS has remained silent on this matter as has the National Property Preservation Guild (NPPG).  These are the ONLY TWO Contractor orientated Associations in the Industry!  One would think that when an issue that may violate the civil rights — did I mention 42 USC § 1983 — and cost their Members money unfairly, they would be ALL OVER THIS!  No, they aren’t I am afraid.  No one around except Foreclosurepedia.

 

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