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Compliance Watch
N.Y. – Albany County Legislators Join “Ban The Box” Movement
Excerpted from wamc.com, by Dave Lucas
Do you have a criminal record? That can be a daunting question for a job seeker. Some Albany County legislators are taking steps to eliminate that query from county job application forms. Discriminating against an individual because of a criminal history is illegal, but it remains a stigma when an employer is considering making a hire.
“The Center For Law and Justice did a survey several years ago, asked employers whether they would consider someone with a conviction record for employment, and 70 percent of them said ‘no.’ What we really have to do is find some way of allowing people with conviction records to be considered for jobs on the same basis as other people.”
Executive Director of the Center for Law and Justice Alice Green says “The Albany County Fair Chance Act” is a beginning step. According to the National Employment Law Project, there are an estimated 70 million U.S. adults with arrests or convictions, many of whom are turned away from jobs despite their skills and qualifications.
Most States Require Criminal Background Checks on Doctors – Colorado Doesn’t
Excerpted from denverpost.com, by Christopher N. Osher
Colorado relies on self-disclosure when making sure doctors do not have past criminal convictions that would flag them as potentially unfit to provide care.
It’s a level of trust that puts Colorado increasingly out of step with other states. As of 2014, 45 state medical boards required criminal background checks to license a doctor.
The Denver Post previously took a look at the issue of criminal checks for nurse licensing in Colorado. That review found that the state’s loose screening of applicants allowed nurses with criminal convictions for sexual offenses, drug offenses and crimes of violence to escape detection, sometimes for years.
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Meeting EEOC Guidelines with Criminal Matrix
The EEOC has recently stepped up enforcement against employers that use criminal background-screening procedures, though with mixed success.
In June 2013, the EEOC brought suit against Dollar General and BMW, alleging that the employers’ use of criminal-background checks in the hiring process without individualized assessments violated Title VII of the Civil Rights Act of 1964. “These two pending class-action lawsuits demonstrate that the EEOC is aggressively pursuing enforcement of the individualized assessment requirement. For employers, cases like these are all the more reason to stay on top of this issue.
Nine out of 10 employers run criminal background screens on applicants as part of the hiring process, according to research from the Society for Human Resource Management. And the number of Americans who have a criminal history on file-about 30 percent, or 92 million people, according to the Bureau of Justice Statistics-has increased exponentially in recent years.
So what happens when a job candidate’s background check reveals a criminal record?
Experts advise employers to stay current with the state and federal regulations that govern the use of criminal records in background screening; use a hiring matrix to make consistent decisions; assess applicants individually; and stay in legal compliance by understanding the adverse action and record dispute processes.
“If your candidate has a criminal background, the first step is to educate yourself on the top legal issues,” said president of compliance and general counsel at background screening firm. Your focus should be on compliance with the Fair Credit Reporting Act (FCRA) and anti-discrimination laws.
“It is imperative that employers are familiar with their obligations under the FCRA,” said Seyfarth Shaw attorney and nationally recognized background screening expert Pamela Q. Devata. Employers that obtain an applicant’s criminal history information from consumer reporting agencies must follow the FCRA. “The majority of FCRA lawsuits allege either a violation of the consent requirement that an employer uses to procure the report; or when the two-step adverse action procedures are not adhered to,” she said.
And, although federal law does not explicitly protect applicants from discrimination based on their criminal records, it does protect against discrimination based on race and ethnicity.
The Equal Employment Opportunity Commission (EEOC) published updated guidance on employers’ use of criminal background checks in April 2012 to address its concern that criminal background checks have an unintended discriminatory impact on particular minority groups. “When a background check reveals that a candidate has a record, employers should review the EEOC guidance to ensure that the nature and gravity of the offense are taken into account along with the time that has passed since the conviction and the nature of the job held or sought,”
In addition, some 11 states and 60 municipalities have enacted ban-the-box ordinances prohibiting employers from asking about arrest records at the time of application, according to the National Employment Law Project. These measures mostly apply to public employers, however, four states (Hawaii, Massachusetts, Minnesota and Rhode Island) and a growing number of local governments have passed ban-the-box laws that apply to private employers also.
While none of these measures prohibits checking for criminal records entirely, the laws vary as to when employers can ask about criminal history. The range includes employers being permitted to ask about criminal history any time after the initial application (Massachusetts), after the applicant has been selected for an interview (Minnesota), or only after a conditional offer of employment has been made (Hawaii).
Furthermore, what employers can ask applicants varies by state. Some laws explicitly prevent employers from asking about non-conviction arrests or expunged records at any time during the hiring process. In some states, certain industries or positions are exempt (such as positions in child care, health care, and financial institutions).
Using a Hiring Matrix
Employers have the option of creating a hiring matrix specific to their workplace, which can help determine which criminal convictions the company considers relevant. The guidelines are applied consistently and create a clear standard against which every applicant is measured.
“There is no set formula for creating a hiring matrix. As a rule of thumb, qualifications based on criminal history should be position-specific, and should not include blanket policies. For example, positions involving driving might take applicants’ DUI convictions into account. Theft convictions may be considered for jobs involving access to money, and violent crimes for jobs involving access to vulnerable populations.
Whatever the format, the hiring matrix can be a useful tool to avoid any unintended bias, ensure that hiring managers are held to a consistent standard, and to document that a criminal background screening policy is job-related and being applied in a nondiscriminatory way,” Preston said.
Individualized Assessments
The 2012 EEOC guidance on the use of criminal records created a de facto new requirement, according to experts: the individualized assessment.
“Their [the EEOC] position is that the guidance is not new, but rather intended to be a more-useful iteration of what’s always existed. But that phrase did not exist,” remarked Melissa Sorenson, executive director of the National Association of Professional Background Screeners. In order to prevent the potentially discriminatory impact of criminal records on the hiring process, employers are instructed to inform applicants through writing, by telephone, or in person that they may be excluded because of past criminal conduct, and provide them with an opportunity to demonstrate that the exclusion does not properly apply to them. Some employers have been doing something which looks like the EEOC’s individualized assessment for years, but now it is guidance, Sorenson said.
According to the agency, some factors to consider when conducting an individualized assessment include:
- Additional facts or circumstances surrounding the offense.
- Age at the time of the offense or the time of release.
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct.
- Employment history before and after the offense.
- Rehabilitation efforts.
- Employment or character references along with any other information regarding fitness for the particular position.
There appears to be some room for interpretation on what employers’ policies and processes look like for individualized assessments, said Sorenson. “Many employers have noted that they have had to either tweak existing processes, or create whole new processes that met what we’re all now calling individualized assessments,” she said.
Employers would be wise to include in their background screening policies consideration of the Green factors, said Devata, referring to the three components identified by the Eighth Circuit in the 1975 Green v. Missouri Pacific Railroad decision that were relevant to assessing whether a criminal record exclusion is job related for the position in question and consistent with business necessity. The three factors to consider are:
- The nature and gravity of the offense.
- The time that has passed since the offense and/or completion of the sentence.
- The nature of the job held or sought.
Another challenge for employers is when the EEOC’s guidance conflicts with state law, placing businesses and background screeners in the difficult position of inviting an EEOC investigation simply by complying with state laws that limit who can be hired for certain positions.
“For example, when an employer is prohibited from hiring or licensing someone for a certain conviction, but feel that they have to conduct an individualized assessment, with the knowledge that they can’t hire that person,” said Sorenson. The EEOC is aware of the issue, she added, “but have not directly responded to it.” Complying with state law is certainly something an employer should present as part of their defense if it finds itself in an EEOC investigation, she said.
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