ban the box & background checks - collaborate '15 presentation

Proprietary and confidential

Ban the Box & Background Checks: The Future of Pre-Employment

Screening Policies and What It Means for Your HR Department

Stephen R. Woods [email protected]

Harris Bornstein [email protected]

Background Check Process

1.  Determining Whether and When a Background Check

May Be Requested

2.  Requesting a Background Check

3.  Considering and Using Background Check Information

4.  Communicating Results

5.  Odds & Ends

① Determining Whether

and When a Background Check May Be Requested

Background ChecksApplicable Law

●  Federal Fair Credit Reporting Act

●  Federal Title VII

●  State Mini-FCRAs

May We Even Run a Background Check?

Federal Law

●  EEOC’s Guidance: background checks must be job-

related and consistent with business necessity

●  For each position, consider how criminal convictions link

to the essential functions of the position


Federal Law

●  Consider:

■ Job title – starting place

■ Nature of job duties (e.g., data entry, lifting boxes)

■ Circumstances in which job is performed (e.g., level of

supervision, interaction with vulnerable adults)

■ Job’s environment (e.g., in warehouse, private home, etc.)

Application of State Background Check LawsWhich State Law Applies?

●  If applicant/employee is a

resident of the state

AND/OR

●  If applicant/employee is

applying to a location in the

state


State Law

●  Credit – 10 states have restrictions on credit

checks by private employers


States Restricting Credit Checks

●  California

●  Colorado

●  Connecticut

●  Hawaii

●  Illinois

●  Maryland

●  Nevada

●  Oregon

●  Vermont

●  Washington

Can We Even Run a Background Check?

State Law

•  Criminal – a few states and few cities/municipalities have

timing or other restrictions on private employers:

a)  Inquiries/questions about criminal history (a/k/a “Ban

the Box” restrictions) and/or

b)  Conducting background checks


States Restricting Timing of (a) Criminal History Inquiries and/or (b) Conducting Background Checks

CAN inquire or conduct:

●  Hawaii

○  Only after conditional offer of employment

●  Illinois & Minnesota

○  Only after applicant selected (and, in Illinois, notified of selection) for

interview OR after conditional offer




●  Rhode Island

○  Only during or after first interview

●  Utah –

○  Only after conditional offer of employment, unless all applicants are

checked


CANNOT inquire or conduct:

§  Massachusetts

§  On initial written application or follow-up application

§  According to MCAD guidance, may inquire only during or after first interview

§  New Jersey (was effective March 1, 2015)

§  On any employment application or during the initial employment application

process

§  Initial employment application process begins when the employee or employer

makes any inquiry about prospective employment and ends when an employer has

conducted a first interview


Municipalities Restricting Timing of(a) Criminal History Inquiries and/or(b) Conducting Background Checks


●  Baltimore, MD


○  If no interview, no inquiry or background check is allowed

●  Buffalo, NY

○  Only during or after first interview

○  Cannot inquire during the application process

○  If no interview, must inform applicant that background check will be run before beginning

employment




●  Chicago, IL

○  Only after applicant is notified of selection for interview OR after conditional offer of

employment

●  Columbia, MO


○  Cannot inquire on an employment application




§  District of Columbia

§  Only after conditional offer of employment

§  Montgomery County, MD

§  Only after first interview

§  Cannot inquire on an employment application



§  Philadelphia, PA

§  During or after first interview

§  If no interview, no inquiry or background check allowed

§  Cannot inquire during the application process

§  Prince George’s County, MD

§  Only after first interview

§  If no interview, must inform the applicant whether a background check will be conducted

before employment and can only conduct the check after a conditional offer

§  Cannot inquire on an employment application



CAN inquire or conduct: §  Rochester, NY §  Only after first interview §  If no interview, only after conditional offer and notice of background check

§  Cannot inquire during the application process (which ends after first interview) §  San Francisco, CA

§  Only after first live interview

§  Cannot inquire on any employment application §  Seattle, WA

§  Only after initial screening to determine whether candidate is qualified


② Requesting

Background Checks


Requirements for Obtaining a Consumer Report

Disclosure & Authorization Forms


1.  Describe background check

information being requested

and/or reviewed

2.  Do not include extraneous

information in Disclosures


Extraneous Information in Disclosures - Examples

● “Release of liability” sentence(s)

● “If you don’t complete this form, you will not be able to

complete the application.”

● “Have you ever been convicted of a felony?”

● “I authorize courts and other entities to release information

about me to Employer.”


Disclosure & Authorization FormsState-Specific Information Required

●  California

●  Colorado

●  Connecticut

●  Maryland

●  Massachusetts

●  Minnesota

●  Montana

§  New Jersey

§  New York

§  Oklahoma

§  Oregon

§  Vermont

§  Washington


③ Considering and Using

Background Check Information

Targeted Screening Process

§ Strongly recommended in EEOC Guidance

§ Takes into account the following 3 factors:

(1) The nature and gravity of the offense or conduct;

(2) The time that has passed since the offense, conduct, and/or completion of the sentence; and

(3) The nature of the job held or sought

§ Then, Individualized Assessment

Consideration of informationDisqualification Matrix—Federal Law (Title VII)

●  Must be linked to 3 Green case factors

●  (1) The nature and gravity of the offense or conduct;

○  (2) The time that has passed since the offense,

conduct, and/or completion of the sentence; and

○  The nature of the job held or sought

●  If applicant/employee is disqualified using 3 factors,

referred to as “screening out”

Factor #1: Nature and Gravity of Offense

●  Assessed with reference to the

harm caused by the crime (e.g.,

theft causes property loss)

●  Legal elements may be instructive

(e.g., felony theft involves

deception, threat, or intimidation)

●  Not surprisingly, misdemeanors

treated less severely than felonies

Factor #2: Time Passed Since Offense

●  Relevant information includes studies demonstrating how much the risk of recidivism declines over a specified time

●  EEOC cites various studies regarding recidivism

○  According to one study, there “may” be a “point of redemption” where an individual’s risk of reoffending is no greater than the general public

○  Other studies put the “point of redemption” at 6-15 years from the date of the arrest

○  No consensus on age of relevant criminal records

Factor #3: Nature of Job Held or Sought

●  Criminal conviction should link to the essential functions of the position in question Job title – starting place

○  Nature of job duties (e.g., data entry, lifting boxes)

○  Circumstances in which job is performed (e.g., level of supervision, interaction with vulnerable adults)

○  Job’s environment (e.g., in warehouse, private home, etc.)


State Law

●  Substantially related

●  Significantly related

●  Various factors for consideration

32

Federal law: cannot release arrest records that did not lead to conviction,

over 7 years old, unless the individual will earn $75,000 or more.

›  New York: cannot report arrests that did not lead to conviction or

violation convictions. To report convictions over 7 years old in,

individual must earn $25,000 or more.

›  Other States that have criminal record reporting limitations on CRA’s:

§  California, Colorado, Indiana, Kansas, Kentucky, Louisiana,

Maryland, Massachusetts, Montana, Nevada, New Hampshire, New

Mexico, Texas, and Washington

Limitations On Criminal Record Information A CRA Can Provide

Disqualification Matrix

●  Guidance suggests that employers should

hire a “recidivism expert”

○  Virtually no employers are doing that

●  Employers are re-examining and re-verifying

that their disqualification matrix follows the 3

factors

○  Best practice = to do that by job duty/title or job grouping

○  Generally should not have one matrix for all job titles

○  Partnership between HR, Legal, and other departments


④ Communicating Results

After receiving negative information . . .

●  Pre-Adverse Action Letter (PAAL)

●  Reasonable Waiting Period

○  Both are part of Individualized Assessment process

described below.


States That Require State Summaries – Pre-Adverse Action Letter (PAAL)

●  Arkansas

●  Colorado

●  Delaware

●  Maryland

●  Massachusetts

●  New Jersey

●  North Carolina

●  North Dakota

●  Oklahoma

●  Rhode Island

●  Washington

●  West Virginia

Language in Pre-Adverse Action Letter (PAAL)

•  Many fail to include “invitation to provide information” language in PAAL

■  Designed to initiate EEOC Guidance-required, Title VII Individualized

Assessment

■  If you would like to provide additional information or context, please

contact [Company].

•  Can use bifurcated approach/language in PAAL

■  Contact SterlingBackcheck for accuracy issues

■  Contact employer to provide additional information [see above]

●  Otherwise, employer will not receive information or be able to

conduct Individualized Assessment

Reasonable Waiting Period ●  To allow applicant or employee to dispute report (under the FCRA) •  To conduct Individualized Assessment (under the EEOC’s new

Guidance) •  Must wait “reasonable” time (under the FCRA) •  No statutory indication of what is “reasonable”

– 5 business days

EEOC Guidance: For any individuals “screened out” by this

targeted screening process, employer’s policy should then

provide “an opportunity for an individualized assessment”

Individualized Assessment

Individualized AssessmentProcess

●  Notice to individual that s/he has been screened out

because of criminal conviction

●  Opportunity to demonstrate that the exclusion should

not be applied due to his/her particular circumstance

●  Consideration by the employer as to whether the

additional information provided by the individual warrants

an exception to the exclusion and

●  Shows that the policy as applied is not job related and

consistent with business necessity.



Factors

●  Individual’s showing that he/she was

not correctly identified in the criminal

record or that the record is otherwise

inaccurate

●  Facts or circumstances surrounding

offense or conduct

●  Number of offenses for which

individual was convicted

●  Older age at the time of conviction, or

release from prison

•  Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct

•  Length and consistency of employment history before and after the offense or conduct

•  Rehabilitation efforts, e.g., education/training

•  Employment or character references and any other information regarding fitness for the particular position and

•  Whether individual is bonded under a federal, state, or local bonding program


●  If individual does not respond . . . employer may make

employment decision without the information

After receiving negative information (cont.)

Adverse Action Letter §  Name, address, and telephone number of the consumer reporting

agency (CRA) that furnished the report;

§  “Applicant or employee may obtain a free copy of the consumer report from the CRA within 60 days of the adverse action”;

§  “CRA did not make the decision to take the adverse action and is unable to provide the individual the specific reasons why the adverse action was taken”; and

§  “Individual may dispute with the CRA the accuracy or completeness of any information in a consumer report.”

44

Ø  Growing restrictions on the use of credit reports

Ø  Growth in International background checks

Ø  Improved technology, to reduce turnaround times

Ø  Employee monitoring

Ø  Arrest Direct

Ø  National Association of Professional Background Screeners (NAPBS)

Accreditation

Trends in Background Screening


⑤ Odds & Ends

Employment Applications ●  EEOC Guidance

“recommends” that

employers not ask about

convictions on job

applications

●  This is the only time the

Guidance uses the term

“recommends”

Arrests

●  Guidance repeats EEOC’s long-held position

that an arrest, by itself, is never job-related

and consistent with business necessity

○  Arrest does not establish that criminal conduct has

occurred

●  Individuals are presumed innocent until proven guilty

●  Many arrests do not result in convictions

EEOC Guidance & Federal Law

●  Compliance with federal laws and

regulations is a defense to a

charge of discrimination

○  E.g., federal government employees,

federal security clearances

EEOC Guidance & State Law

●  Compliance with state and local laws does not shield employers from violating Title VII

○  Most states regulate occupations that involve responsibility for vulnerable citizens, children, and the elderly

○  All 50 states and D.C. require criminal background checks for certain occupations, such as nurses, elder caregivers, daycare providers, and school teachers

EEOC Guidance & Client Requirements

●  Compliance with client

requirements unlikely to

shield employers from

violating Title VII

FCRA Penalties

●  Actual damages sustained by applicant or

employee as a result of the offense

●  Statutory damages – up to $1,000 per violation,

if willful

●  Punitive damages, if willful

●  Attorneys’ fees

Title VII Penalties

●  Back pay

●  Front pay

●  Punitive damages (capped), if willful


Ban the Box & Background Checks: The Future of Pre-Employment

Screening Policies and What It Means for Your HR Department

Stephen R. Woods [email protected]

Harris Bornstein [email protected]

ban the box & background checks - collaborate '15 presentation

Recruiting & HR

background check process

box background checks

background check information

state law criminal

condential states

state law credit

prospective employment

box restrictions andor