Presentation Transcript

1. NTGC/R Spring Conference

   PRESENTED BY: BACKGROUND INVESTIGATIONS Kelly Myers Licensing Manager Cherokee Nation Gaming Commission Julie Hakman President AmericanChecked Inc.
2. The latest NIGC Regulations §556 and §558 Effective February 25, 2013 §556 address background investigations for key and PMO licenses. §558 address the issuance of Key and PMO gaming licenses. Must complete two submissions: Notice of results of the background investigation Notice of license decision
3. New NIGC Regulations NIGC must be notified of the results of the background investigation before a licensed is issued within 60 days of an individual beginning employment. 556.(b)(2) NIGC must be notified when a license is issued within 30 days of it issuance. 558.3(b) Notifications can no longer be submitted electronically. NIGC must be notified when a licensed is not issued. 558(d) Everyone who you have submitted fingerprints to the NIGC must have an NOR submission as either found suitable or not.
4. New NIGC Regulations
5. New NIGC Regulations §556.2 – Privacy Notice & §556.3 - Notice of False Statements Notify in writing existing Key and PMO employees Complete a new application form; or Sign a statement that contains the Privacy Act notice and notice of false statements. All license application forms shall contain the notice 180 days after February 25, 2013. Deadline is August 24, 2013.
6. Licensing Classification §502.14 – Key Employee & §502.19 PMO Employee “Key Employee” means: A person who performs one or more of the following functions: Bingo Caller; Counting room supervisor; Chief of Security; Custodian of gaming supplies or cash; Floor manager; Pit boss; Dealer; Croupier; Approver of credit; or Custodian of gambling devices including persons with access to cash and accounting records within such devices; If not otherwise included, any other person whose total cash compensation is in excess of $50,000 per year; or, If not otherwise included, the four most highly compensated person in the gaming operation. Any other person designed by the Gaming Commission as a Key Employee. “Primary Management Official” means: The person having management responsibility for a management contract; Any person who has authority: To hire and fire employees; To set up working policy for the gaming operation; or The chief financial officer or other person who has financial management responsibility. Any other person designated by the Gaming Commission as a primary management official.
7. Licensing Types
8. Consumer Reporting Agency (CRA) Professional Background Screening Compliant with FCRA Maintains Standards of Accuracy Provides Consumer Protections Ensures Data Security Adheres to State and Federal Laws Member of National Association of Professional Background Screeners Individual Certification Company Accreditation Subject to oversight by FTC and CFPB
9. Offshoring PII PII: Personal Identifying Information California passed SB 909 effective January 1, 2012,  requiring disclosure to consumers if information is  offshored for processing Authorization forms must have a background firm’s  privacy policy, and the background firm must  conspicuously post their privacy policy, and specific  information about offshoring Issue: Screening firms possess large amounts of PII  and large firms send to places like India and  Philippines for processing, beyond the protection of  U.S.  Privacy Law.
10. Fair Credit Reporting Act, (FCRA) 15 U.S.C. § 1681 § 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b] (a) In general. Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other: (3) To a person which it has reason to believe (B) intends to use the information for employment purposes; or (C) intends to use the information in connection with the underwriting of insurance involving the consumer; or (D) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or (F) otherwise has a legitimate business need for the information
11. Benefit to Tribes Legal Protections Obligation of Accuracy Adherence to State and Federal Laws Applicant Protections Dispute Process Identify Problems Correct Records Desire to put people to work Improved Standards Verified Sources Vetted employees, vendors, associates and affiliates Data Security PII / Data Security
12. Obligation of Tribes Disclose and Authorization in writing “Pre Adverse Action” or “First Notice” Notify applicant/employee and provide: A copy of background report “A Summary of Your Rights under the Fair Credit Reporting Act” Applicant/employee contacts CRA if she/he disputes any information in background report. CRA re-investigates any disputed items of information and issues updated report. “Final Adverse Action”. If final employment/license decision is denial then a notice of adverse action is sent to applicant/employee.
13. Record Keeping All Records made or used (including, but not limited to, requests for reasonable accommodation, application forms submitted by applicants for licensing, and records dealing with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay, compensation, tenure, selection for training or apprenticeship, or other terms of employment) must be preserved for the following periods: Private employers must retain such records for one year from the date of making the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for one year from the date of termination. Educational Institutions and Governments must retain such records for two years from the date of the making of the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for two years from the date of termination.
14. Federal Disposal Rule The Rule: The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to – or use of – information in a consumer report Acceptable policies: Burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed; Destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed; Conduct due diligence and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule. Due diligence could include: reviewing an independent audit of a disposal company’s operations and/or its compliance with the Rule; obtaining information about the disposal company from several references; requiring that the disposal company be certified by a recognized trade association; reviewing and evaluating the disposal company’s information security policies or procedures. Applies to: Consumer reporting companies Lenders Insurers Employers Landlords Government agencies Mortgage brokers Automobile dealers Attorneys or private investigators Debt collectors Individuals who obtain a credit report on prospective nannies, contractors, or tenants Entities that maintain information in consumer reports
15. Background Investigation Requirements NIGC §556.4 5 Year Business and Employment Verification. 3 Personal References. Current Residence and Business phone. Any previous relationship with Tribes or Gaming entities. Any past licenses held, issued or applied for. Any pending misdemeanor or felony prosecution. Excluding minor traffic, any misdemeanor or felony convictions within the last 10 years. Any past occupational license help, issued or applied for. Fingerprint submission. Photo Prior NIGC investigations.
16. Employment Verifications and References References before Employment Use Employment Credit Report to determine omitted past employers TribalTRAC Pull phone numbers from Internet search, not application Collect cell and email addresses
17. Credit Reports Consumer Credit Reports should not be used Employment Credit Reports versus Consumer Credit Reports No Credit Score Includes Past Employers Excludes Account Numbers No Harm “Pull” Need to clearly establish job‐related 7 States now limit use: CA, Connecticut, Hawaii, Illinois, Maryland, Oregon, Washington EEOC: Disparate Impact
18. EEOC Implications of Criminal  Records and  Scoring Procedures On April 25, 2012, EEOC issued  new Guidance on use of criminal  matters. EEOC stressed cannot  automatically disqualify an  applicant based on a criminal  conviction without a businessjustification. Must take into account: nature and gravity of the  offense, nature of the job, and  time elapsed and offer Individual Assessment Other Considerations: “Ban the Box” Arrests have limited use—need to  locate and evaluate underlying  behaviors if possible Be careful using automated  scoring system (red, orange, and  green lights): Can create  issue  under EEOC rules because of the automated nature of the decision  making without  an outlet for  individualized consideration.
19. Criminal Records No single tool can be relied on but need  series of overlapping tools Criminal Records Sources – 10,000 + Courts County, Town and Municipal Courts State Courts Civil Courts Federal Courts Tribal Courts Other Record Sources Prison Systems Sexual Predator Lists Federal Sanction and Watch lists Vendor Databases FBI National Databases County/State Records Federal / Civil
20. FBI – Fingerprint Search Though perceived as all encompassing, the FBI database is not considered reliable as a single source for background screening purposes. It is recommended that other sources be used to supplement the FBI search. Fingerprint matching – prints must be on file. Significant time lags from reporting states. Inconsistent reporting requirements from state to state. Limited reporting of case dispositions (45%). Serious issues in depository data linking. Return delays.
21. National Databases National” Is A Misnomer: While current multi-jurisdictional databases contain millions of records (often 750 million or more), there exists no single, national database that contains all criminal records in the US. These databases include only those records from various government and law enforcement entities, counties, sex and violent offender registries and other sources that have been made available for purchase, Data Cannot be 100% Accurate, Complete or Up-To-Date. The data is only as accurate as the person adding it into the database at time of record origination. Automated Searches: Screen Scraping or Data Extraction. Data Structures are not always reliable: When combining several different databases into one, the methods used to structure the data will impact search results. For example, when a query is done using “ROBERT SMITH,” results returned may or may not include ROBERT A, BOB, BOBBY, and ROBERTO. Whether separate queries must be made for each name varies from one database to another.
22. County Criminal Records A county criminal search is a deep search, usually conducted in person, for a particular county. Latest and most complete information available, revealing the greatest level of detail. Most common for employer Misdemeanor and Felony Co-Located Records What most people don’t know… Limited in scope Fees
23. State Criminal Records Limited Access 23 states release criminal records (name search). 18 states require a signed release from the subject. 9 state require submission of fingerprints. 6 states have closed their records. Record Availability Level of Automation Quality Control Disposition / Time Delays
24. Resources NIGC Background Requirements http://www.nigc.gov/Portals/0/NIGC%20Uploads/lawsregulations/commissionregulations/regs/25CFRPart556.pdf National Association of Professional Background Screeners www.napbs.com FCRA Statute www.ftc.gov/os/statutes/031224fcra.pdf The Criminal Record Handbook http://www.brbpublications.com/books/details.aspx?ProductID=422 Background Checks, What Employers Need To Know http://business.ftc.gov/documents/0487-background-checks-what-employers-need-know Association of Certified Fraud Examiners, Annual “Report to the Nations” www.acfe.com

25. QuestionsThank you

    Julie Hakman jhakman@americanchecked.com Kelly Myers kelly-myers@cherokee.org