NCISS Legislative Update

• August 10, 2016
• by Dean Beers
• Associations

In the month of July, Lobbyit met with the offices of Senator Lamar Alexander to discuss Senate Joint Resolution 34, (sponsored in the House by Rep. Virginia Foxx (R-NC)) which would block implementation of the Department of Labor's proposed "Overtime Rule". Lobbyit also met with Senate Appropriations Chairman Thad Cochran's office, and House Speaker Ryan's office to discuss the prospects for the inclusion of a series of important policy riders in an "omnibus" appropriations bill at the end of calendar year 2016

NCISS continues to monitor federal legislation and regulations, and will keep our members and profession advised of any progress and concerns.

This full report is available at http://conta.cc/2bdb2QH

State Legislation Advocacy Monitoring

Lobbyit has set up NCISS's "state-level" tracking and continues to identify hundreds of bills in 30 active states. The most important, by state, are below.

To view bills impacting private investigators, private patrol operators, or security guards in your state, go to w ww.NCISS.org to the Advocacy Hub (direct link: http://goo.gl/QSCcgc) and follow the State Legislation link (direct link: http://goo.gl/RPcv0W) .

You can search alphabetically by State or click on your state on the United States map provided at the top of the page (current example above). If your state is not listed, it means that your state was either not in session or there were no bills introduced that met our search parameters. If you know of a bill in your
state that we need to become aware, please contact your Regional Director or your NCISS Legislative Chairs, Francie Koehler or Brad Duffy.

Stakeholder Activity

First, Lobbyit maintained its conversation with the Senate Commerce committee concerning provisions in FAA reauthorization regulating the use of drones (the primary subject of our recent report). Surprisingly, we were quietly informed by the committee that they expect the drone-related provisions to be dropped from the bill entirely. The Committee expects a one-year authorization, with the issue to be revisited by September of 2017.

With respect to labor-related riders in an eventual appropriations omnibus, the outlook is unclear. Speaker Ryan has called for appropriations bill devoid of troublesome policy amendments, but many in the GOP caucus still want to include language preventing the Department of Labor (DOL) from enacting/enforcing a series of rules (i.e. Ambush, Overtime, Micro Unions, Persuader, etc. - all having been the subject of earlier NCISS dispatches).

In other words, the world awaits the end of calendar year 2016. While many of the 12 appropriations bills have cleared Committee in both House and Senate, there are only a few legislative days left before the mid-July break for the conventions, and August recess. Congress is out all of October preparing for the election, so the safe money is on a short term continuing resolution (CR) to fund government into, perhaps, December, while Members hack out a larger omnibus approps bill for FY 2017 to be passed as the December holiday approaches.

While the process unfolds, Lobbyit and NCISS will continue to work with Member offices and other interested parties to include provisions preventing the Administration from enacting and/or enforcing some of its more damaging recent rules. We will keep you posted!

OPM "Check the Box" Rule

Lobbyit and NCISS drafted and submitted the following comment to the Ofice of Personnel Management (OPM) on their recently-proposed rule to "ban the box" in Federal hiring decisions.

Kimberly A. Holden
Deputy Associate Director for Recruitment and Hiring
U.S. Office of Personnel Management
Room 6351D, 1900 E Street, NW.,
Washington, DC 20415-9700

The National Council of Investigation and Security Services (NCISS) hereby submits these comments to the Office of Personnel Management's (OPM) proposed rulemaking published in the Federal Register on May 2, 2016 at 81 Federal Register 26173.

NCISS is a trade association representing private investigators and security service companies from across the United States. NCISS is comprised of nearly 1000 members, encompassing over 90,000 professionals and generating approximately $2.5 billion in economic activity per annum.

As the national voice of licensed private investigators and security service providers for over 40 years, NCISS faithfully submits these comments on OPM's pending rule on criminal background checks for prospective employees.

While we appreciate that this rule is limited to Federal hiring practices, we have several concerns about the U.S. Government (USG) heading down this problematic path.

First, with respect to OPM's assertion that conducting criminal background checks only after a conditional offer has been made will save time and resources, this conclusion runs counter to our experience.

NCISS members conduct background investigations on individuals for a wide variety of purposes, including prospective employment. NCISS members also contract with the USG to provide security services for sensitive locations, working closely with such agencies at the Department of Homeland Security (DHS) and the Transportations Security Administration (TSA) to help protect several large domestically-situated international airports. If a history of criminal conduct is in any way disqualifying for a position, there is no use in vetting a prospective employee up to a prospective hiring decision, then asking such a dispositive question. We see no utility in postponing a threshold issue until after the dedication of significant time and resources, then starting over should a potential hire wash out because of a serious past conviction.
We all know that the Federal hiring process is lengthy and cumbersome to begin with. Injecting additional uncertainty, and potentially significant new delays, does not seem to us to be sound policy.

Second, we are concerned with the follow-on effects of this rule's implementation. Policies adopted by the USG have tremendous persuasive authority in state and local jurisdictions. Should this aspect of Federal employment practice become the expectation in the private sector, as encouraged or required by smaller divisions of government, not only could it make the hiring process extremely more cumbersome and wasteful (e.g. our foregoing contention), but it could also entail significant additional litigation exposure.

If employers are in a position of having to prove that a criminal conviction is pertinent to any particular hiring decision, it leaves employers open to lengthy and expensive legal challenges to their right to decide who to hire. For instance, a conviction for perjury or fraud may have little to do with the actual daily job functions of a security guard, but would likely disqualify individuals from our or our clients' employ simply due to concerns about character and trust. NCISS members often act in quasi-official roles, existing as the first line of authority in large public buildings and at significant public gatherings, or as adjunct to officials in a variety of investigational roles. In many instances, our members are armed.

As such, we have a heightened level of responsibility to the public. We can't be put in a situation where the law expects more from us on one hand, while simultaneously degrading our ability to meet that standard. Our fear is that our hiring decisions could be legally challenged, diverting a great deal of time and money, and substituting the judgment of an outside third party for our own experience in the sector. Then, subsequent to some unfortunate incident, we are liable to these higher expectations.

In essence, the process this change contemplates further insinuates government into decisions better left to the people on the ground, effectively imposing remote regulatory imprimatur on the close business decisions of business owners and operators. And in the process, inviting delay, waste, and expensive legal complications. We do not believe this is fair, advisable or proper.

Finally, this issue is consonant with the Equal Employment Opportunity Commission's (EEOC) recent guidance on the use of credit checks in making employment decisions. Both credit and criminal histories are important criteria in hiring decisions, yet the USG appears to be headed in a direction where regulatory diktat will force employers to ignore such fundamental considerations.

The primary reason most employers run credit reports is not to check the applicant's credit, but rather to look for employment which was not reported on the application, which in turn may lead to past malfeasance. In fact, credit reports for employment purposes are treated as "soft inquiries" and do not include credit scores. Additionally, credit reports are useful because they often reveal false information on employment histories, or other pertinent information. For instance, a recent investigation conducted by an NCISS member found that a credit check on a company comptroller who embezzled several hundred thousand dollars would have revealed large gambling debts

NCISS sees these issues (i.e. restrictions on the use of credit and criminal histories) eventually combining to tie the hands of employers in making hiring decisions. At a minimum, these provisions unwisely consume time and resources, leave private business decisions open to the judgment of third parties, and pave the way for expensive and vexatious litigation. At worst, they endanger public safety.

We recognize that gainful employment is an essential part of the rehabilitation process. In our experience, employers are sympathetic about past minor transgressions of applicants, and are often willing to give promising applicants a second chance. We don't believe that most employers reject, out-of-hand, applicants who check the box. In fact, they often ask for a more in-depth review.

But the employer has a right to know about those past violations for logical human resource reasons, employee safety, and potential civil liability. The hiring process is expensive, and most human resource departments are looking for highly motivated candidates, which is often a trait of persons seeking a second chance.

Thank you for your consideration of our comments.