considerations for hiring workers with criminal records a presentation for the 2013 disability jobs...

THE NARROW BUT PASSABLE GATE

Considerations for Hiring Workers with Criminal Records

A presentation for the2013 DisAbility Jobs Summit

October 9, 2013

Columbus, Ohio October 9, 2013

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1.92 million Ohioans have a felony or misdemeanor conviction

— 1 in 6 —

DisAbility Jobs Summit, 10/9/2013 |

Ohio Justice & Policy Center, 2011

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1. Employers seek to avoid problems by rejecting all job applicants with criminal records.

2. Categorically excluding employees with criminal records creates new problems.


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Passing Through the Gate -- Employers can build an effective workforce that INCLUDES

workers with criminal records.


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The First Gatepost:

Why employers reject job applicants with criminal records

a. Negligent-hiring liability

b. “Collateral consequences of conviction”

-- see the CIVICC database


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Negligent Hiring

Elements (1):

–Employment relationship;

–Employee's unfitness or incompetence;

–Employer's “actual or constructive” knowledge of such unfitness;

+DisAbility Jobs Summit, 10/9/2013 |

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Negligent Hiring

Elements (2):

–Employee's act or omission caused the plaintiff's injuries; and

–Employer's negligence in hiring or retaining the employee was a proximate cause of the injury.

• Employee’s action was reasonably foreseeable.


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Avoiding negligence liability


Employer research is key to avoiding liability for Negligent Hiring:

Employers have a duty to make a reasonable investigation of an applicant’s fitness before hiring.

The extent varies with the circumstances.

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Contact Former Employers:• Request that applicant specifically authorize

potential employer to contact former employers and release employment information.

• Don’t ask for references if you aren’t going to check them.

• If using an investigative agency to gather an applicant’s employment history, sign an indemnification agreement.

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Ask Former Employers:• Employment Dates• Job Titles• Pay Rates• Work Habits

• Examples of positive traits are an excellent way to avoid negligent hiring claims.

• Whether they would hire employee again.

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Check Personal References too:• If Applicant cannot produce references despite

living in the area for an extended period, this is a red flag.

• Have applicant’s signed release readily available.• Ask only job-related questions:

• Other questions could be the basis of discrimination or invasion of privacy claims.

• Sending reference inquiries by mail provides documentation.

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Check Driving Record IF relevant to the job.If position requires any driving of vehicle on Company business, check applicant’s driving record.BMV will have information concerning:

• All traffic violations,• Driving-related offenses,• Identifying information contained on state-

issued license.In addition to moving violations, BMV check can reveal more serious obstacles such as suspended or expired license.

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Document and retain all information received.

Document any unsuccessful attempt at gathering information.

Make offer only after completing basic research.

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Criminal Background Checks


After all the basic research is completed, conduct a criminal background check IF required by the nature of the job:

Will the employee --• Be bonded because of access to money or valuables?• Carry a weapon?• Drive a company vehicle?• Have access to drugs or explosives?• Have access to master keys?• Have a great deal of contact with the public, • patients, or children?

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Criminal Background Checks


Ohio law requires record checks for some jobs, such as

- School Employees/Bus Drivers- Child and Adult Care Providers- Security Guards/Private Investigators- Providers to Boards of Developmental Disabilities

Ohio and federal law impose other “collateral consequences” on people with criminal records.

“Collateral Consequence” = Civil Impact (UCCCA)

Any penalty, disability, or disadvantage, however denominated

imposed on individual [, licensing agency, or employer]

as a result of conviction [, arrest, or sentence]

which applies by operation of law

whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.

Civil impacts of conviction

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“Collateral Consequence” = Civil Impact

Does not include imprisonment, fine, any form of supervision, or costs, including cost of incarceration.

Does include mandatory and discretionary consequences affecting employment, housing, family, financial, and civic-participation rights

(See R.C. 2961.21)



2005 Toledo study found 404 consequences in Ohio law.

Today, CIVICC contains 778... and counting.

Civil impacts affect the whole community:

1.92 million Ohioans have a felony or misdemeanor conviction --

— 1 in 6 —Ohio Justice & Policy Center, 2011



Employment exclusion hampers the economy:

• Former inmates make 40 percent less than before they were incarcerated. Average lost income was $15,600 per year.

Pew Center on the States, 2010Collateral Costs: Incarceration’s Effect on Economic Mobility

• 13.9 million working-age Americans with felony records. Their exclusion from labor market = $57-$65 billion lost U.S. GDP.

Center for Economic and Policy Research, 2010Ex-Offenders and the Labor Market

Ohio’s share of lost GDP = $2 billion



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Ohio CIVICC Database


Searchable online databaseof the CIVil Impacts of Criminal

Convictions under Ohio law.

http://CIVICCohio.org

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Ohio CIVICC Database

criminal convictions

Ohio civil impact

TRIGGERSWHAT…?

TRIGGEREDBY WHICH…?

s

specific specific

Searchable online database for answering two questions


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Searching CIVICC


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What about civil impacts under federal law?

• ABA is building a national database:

• National Inventory of Collateral Consequences of Conviction (“NICCC”)

http://www.abacollateralconsequences.org



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The Second Gatepost:Why it’s no solution

to reject all job applicants with criminal records

That “solution” causes more problems:

a. Criminal records & the FCRA

b. Title VII Enforcement


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Criminal Records & the FCRA

FYI:The Fair Credit Reporting Act puts duties on

consumer reporting agencies (CRAs) and employers regarding creation,

dissemination, and use of criminal records in employment decisions.

15 U.S.C. §1681 et seq.


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CRA’s duties1. Cannot report arrests after 7 years if salary <$75k2. Use reasonable procedures to produce

maximum possible accuracy3. If a public record is being reported and is

likely to have adverse effect on employment, CRA must either:

a) notify subject of record (job applicant) that info is being reported and who requested it; or

b) maintain “strict procedures” to insure info is complete and up to date.



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Are CRAs fulfilling their duties?

See National Consumer Law Center’s report, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses

• Mismatched people• Critical information missing• Sealed/expunged cases reported• Misclassified offenses



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Employer’s duties:

1. Give written notice of intent to check.2. Get written authorization to check.3. Give copy of *new* FCRA notice from CFPB.4. Give notice of adverse decision.5. Give contact info for reporting agency (or

just give a copy of the report).



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Civil damage claim for failure, based on: (a) inaccurate report; (b) caused by failure to use reasonable

procedures ... +(c) injury (including emotional) (d) . . . resulting from the inaccuracy.

Willful violation can lead to punitive damages.

Consumers can also complain to FTC or Consumer Financial Protection Bureau.



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Title VII Enforcement• Title VII of the Civil Rights Act of 1964:

disparate impact is unlawful if employment practice not job related nor consistent with business necessity.

• There is extensive evidence of severe racial disparity in criminal justice system.

• Overbroad employment exclusion based on criminal-justice contact = disparate impact.


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Title VII Enforcement

• EEOC has been saying this since at least 1989.• Updated Enforcement Guidance on 4/25/2012 just

gives much more detail & examples. See http://bit.ly/EEOC_Enforcement_Guidance_2012

• Green v. Missouri Pacific RR Co. factors:1. nature and gravity of offense/conduct;2. how long since offense and completion of

sentence; and3. nature of job held or sought.


http://bit.ly/EEOC_Enforcement_Guidance_2012

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• EEOC isn’t kidding: – Pepsi settlement, January 2012– Dollar General lawsuit– BMW lawsuit– J.B. Hunt settlement June 2013

• Private lawsuits also can be distracting and expensive even if unsuccessful.

e.g., El v. SEPTA, 3rd Cir. 2007: 3 experts to show business necessity


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U.S. Dept. of Labor Training & Enforcement Guidance Letter, May 25, 2012:

• WIB one-stop staff must screen job postings for possible Title VII violations.

• Can put up job announcement, but must also post warning about possible Title VII violation.

See http://bit.ly/DOL_Guidance_31-11



http://bit.ly/DOL_Guidance_31-11

Passing Through the GateHiring people with criminal records

is possible and profitable

a. Fair Hiring Policies: Civil Service and Beyond

b. Federal Bonding & Work Opportunity Tax Credit

c. Record sealing and State-Issued Certificates: CAE & CQE


Fair Hiring Policies inCivil Service

Cincinnati, Hamilton Cty., Cleveland and more --1. Be clear about statutory barriers up front.2. Don’t ask about criminal records on application.3. Do record check after exam, interview, &

conditional offer.4. If rejecting, justify relevance of record in

writing: individualized consideration, not a matrix.

5. Give copy of record check to applicant and give reasonable time to correct.


Fair Hiring Policy

Why?• Transparent, justifiable decision making

• Clear expectations for applicants

• Public policy of supporting redemption because redemption is probable.

• Get the best workers. Period.http://bit.ly/GeneMays


Fair Hiring Policy

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Pamela Paulk, Vice President of Human Resources, Johns Hopkins Medical Center

2000-2010: 91% (73/80) retention

“Don't look at this as a social program, don't look at this as being altruistic.

Look at this as a business decision.”

http://bit.ly/PamelaPaulk


http://bit.ly/PamelaPaulk

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Federal Bonding- Administered by DRC

through Ohio Central School System http://bit.ly/OhioFedBonding

Work Opportunity Tax Credit


Supports & Incentives

- Coordinated in Ohio by ODJFS,http://jfs.ohio.gov/wotc

http://bit.ly/OhioFedBonding

http://jfs.ohio.gov/wotc

http://jfs.ohio.gov/wotc

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• Senate Bill 337₋ “The Collateral-Sanction Reform Bill”₋ Signed into law 6/26/2012₋ (Mostly) effective 9/28/2012

• House Bill 86₋ “The Justice-Reinvestment Bill”₋ Effective 9/30/2011₋ Mostly sentencing reform


Ohio Supports & Incentives


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For 5 state licensing agencies, SB 337 limits exclusion of applicants with a criminal record:

• Ohio Optical Dispensers Board• Registrar of Motor Vehicles (for motor

vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools)

• Construction Industry Licensing Board• Hearing Aid Dealers and Fitters Licensing

Board• Director of Public Safety (for private

investigators and security guards)unless the offense is a “disqualifying offense” or crime of moral turpitude.

Ohio Supports & incentives

Civil Impact changes under S.B. 337:


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Civil Impact changes under S.B. 337

State Board of Cosmetology: • cannot deny certification on the basis of

prior incarceration or conviction for a crime. O.R.C. 4713.28(K).

• must assist ex-offenders and military veterans who hold licenses to find employment. O.R.C. 4713.07(F).

Driver’s License changes

Child Support -- New rules on imputed income


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Ohio Supports & incentives

New criminal record-sealing rules under SB 337

AS OF 9/28/2012:

• BASIC RULE: Two misdemeanors; or one misdemeanor and one felony. ORC 2953.31.

• Same prohibited offenses as before (violence, sex offenses, child victim, traffic) except non-payment of child support. ORC 2953.36.

• Minor misdemeanors treated as before


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ORC 2953.31 (A) “Eligible offender” means anyone who has been convicted of an offense in this state or any other jurisdiction and: who has not more than one felony conviction, not more than two misdemeanor convictions if the

convictions are not of the same offense, or not more than one felony conviction and one

misdemeanor conviction in this state or any other jurisdiction.

Ohio Criminal-record sealing:


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Ohio Criminal-record sealing:

Juvenile record changes under SB 337

Record sealing (ORC 2151.356) -• Waiting period reduced from 2 years to 6 months• No fee for juvenile-record sealing• Sexual battery and gross sexual imposition now

CAN be sealed

Confidentiality (ORC 109.572, 109.578)• Juvenile records now explicitly confidential in

statute except for aggravated murder, murder, and registration-eligible sex offenses

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Certificates of Achievement and Employability

&Certificates of Qualification for

Employment


Ohio Supports & Incentives


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CAEs & CQEs

Two legal effects

1. Converts mandatory civil impact into a discretionary one — no guarantee of getting license or privilege

2. Protects employer from negligent-hiring liability

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Certificate of Achievement & Employability (CAE)

• Granted by DRC• Only for inmates with less than 1 year left or

currently on PRC/parole• Must have completed various kinds of

programming in prison• No limit on types of offenses• Must name specific civil-impact —

use CIVICCORC 2961.22


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CAE

www.drc.ohio.gov/ocss/AandEbrochure.pdf

Certificate of Achievement & Employability (CAE)



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Certificate of Qualification for Employment (CQE)

ORC 2953.25 --

CQE provides the same 2 benefits as CAE,but available to many more people:

• 6 months post-discharge for misdemeanor,

• 1 year post-discharge for felony.

Court decides:• Court of county where applicant resides


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“By a preponderance of the evidence:• “(a) Granting the petition will materially

assist the individual in obtaining employment or occupational licensing.

• “(b) The individual has a substantial need for the relief requested in order to live a law-abiding life.

• “(c) Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.”

R.C. 2953.25(C)(3)


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“The court may order any report, investigation, or disclosure by the individual that the court believes is necessary for the court to reach a decision . . .”

-- thus the need for a filing fee.

Apply at www.drccqe.com

Applying for a CQE at www.drccqe.com


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Applying for a CQE


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Applying for a CQE


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Applying for a CQE


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Applying for a CQE


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Questions?

Pam [email protected]

See also: OJPC’s Criminal Record Manual:http://bit.ly/OJPC-CrimRecManual

| 58DisAbility Jobs Summit,

10/9/2013 |

mailto:[email protected]

considerations for hiring workers with criminal records a presentation for the 2013 disability jobs...

Documents

employers negligence

criminal records

job applicants

negligent hiring elements

negligent hiring claims

ohio law

liability b

check driving record