LA Bans the Box

On November 30th, 2016, the Los Angeles City Council passed the Fair Chance Initiative prohibiting most employers from inquiring about applicants’ criminal histories until a position at the company has been offered. The notion was approved by a 12-1 vote, making Los Angeles another of many to instill this new law.

The city’s ordinance will apply to all employers who have at least 10 or more employees on staff, with the exception of careers in fields like law enforcement and child care. The decision was made to join a growing movement in helping those with criminal records find suitable employment despite their pasts. There are now 24 states with over 150 cities who have adopted this bill.

The Fair Chance Initiative was started by the Los Angeles based organizations Homeboy Industries and All of Us or None. Both groups provide support to previously incarcerated persons, fighting for their rights to rejoin the workforce in the United States; a very applicable stance to the ‘ban the box’ law. According to the National Employment Law Project, a 2011 study discovered that reentering 100 formerly incarcerated people back in the working world would increase their lifetime earnings by $55 million. This would also save $2 million annually be keeping these employees out of the criminal justice system.

However, as mentioned in a previous blog of ours, these policies bring forth the risk of increasing discrimination, as employers who are not legally allowed to research an applicant’s criminal history may consider denying him or her because of ethnicity a loophole. This fallback on stereotyping can have an adverse affect on those seeking jobs following incarceration, but the question of morality remains. Implementing the ‘ban the box’ law has led to a large increase in the hiring of those with criminal records despite these claims.

Now that Los Angeles has joined many cities around the country in this movement, the City’s Office of Wage Standards is expected to enforce this ordinance. If any violation of the new bill is reported, the applicant filing the report may receive up to $500, so long as the allegations are upheld.

For more information on the rising ‘ban the box’ movement, visit the National Employment Law Project’s guide here.

Vermont the Latest State to Ban the Box

Governor Peter Shumlin has signed a bill to remove questions regarding criminal history from employment applications. The bill, which Governor Shumlin says, “will break down barriers and give Vermonters who have paid their debt to society a fair chance to find a good job”, makes Vermont the 23^rd state to enact a state-wide ban-the-box policy. While each bill that has been passed is a part of the ban-the-box movement that continues to sweep the nation in 2016, each bill differs in who it applies to and at what point it is legal to use a background check.

So what does this mean for employers in Vermont?

It means that job applications for both state and private employment cannot include the infamous question, “Have you been convicted of a crime?” But that is not all. The bill comes with the stipulation that inquiry into an applicant’s criminal history cannot take place until after the applicant has been deemed otherwise qualified for the position. The executive order does not apply to law enforcement, correctional facilities, or “other sensitive positions”.

The bill takes effect on July 1, 2017. The new law makes Vermont the ninth state to extend the fair-chance policy to both public and private employers. The motivation behind the policy, according to Governor Shumlin, is to decrease recidivism and allow those with a criminal history to properly reintegrate into society. Failure to comply with provisions laid out in the bill may result in a civil penalty of up to $100 for each violation.

To view the bill in full, click here.

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S2Verify is an NAPBS-accredited process innovator in the application of integrated hiring solutions and employment screening technologies. S2Verify’s services cater to the needs of organizations that rely on employee and volunteer information that is comprehensive in scope, delivered quickly to key managers, and easy to read, understand, and use by authorized personnel. Headquartered in Atlanta with Operational Support Centers in Miami and Chicago, the privately-held company specializes in providing a customizable yet fully integrated, best-in-class set of applicant tracking, drug screening, and criminal background checks that address business and consumer needs either poorly met or not met at all by leading, nationally-branded providers of mass-market background screening solutions. The focus on addressing shortcomings in the background screening industry attributed to S2Verify’s inclusion in the Inc. 500’s list of fastest growing companies in the United States.

Understanding the Ban-the-Box Movement

Our recent blogs have addressed the NYC Fair Chance Act, which is actually part of a larger movement that we will talk about today called ban-the-box. The purpose of the movement is to ensure that individuals with a criminal record are not barred from obtaining employment based solely on their criminal history. The policies that have resulted from this movement determine when it is appropriate to screen your potential employees.

The reason for this movement boils down to some staggering numbers. According to a 2012 study, the number of ex-felons in the U.S. has surpassed 18 million people. 700,000 individuals are released from prison every year. And a very noteworthy statistic is that young black men are seven to eight times more likely to be incarcerated than whites of their age group. Based on these shocking numbers, it is no surprise that ban-the-box laws are continuing to pop up around the nation. It is also obvious that these policies will continue to be a hot topic in 2016.

Nineteen jurisdictions have enacted ban-the-box laws since 2010. These ordinances have been issued at the city, county, and state level. And what complicates things even more, there is substantial variation from jurisdiction to jurisdiction. While all of these policies ban the criminal history check box from the job application, each jurisdiction has a different stance on when criminal history inquiries can be made.

For example, here is a breakdown of different jurisdictions in terms of when an inquiry can be made:

·         After the initial screening of applicants:

o   Chicago

o   Illinois

o   Massachusetts

o   Minnesota

o   Seattle

·         At the first interview:

o   Buffalo

o   Oregon

o   Rhode Island

·         After the first interview:

o   Montgomery County

o   New Jersey

o   Philadelphia

o   Prince George’s County

o   Rochester

o   San Francisco

·         After the conditional offer:

o   Baltimore

o   Columbia

o   DC

o   Hawaii

o   New York City

Differences from jurisdiction to jurisdiction don’t end there either. There are exceptions to each policy that vary depending on your place of business. Even the content of your adverse action notices may be different depending on the local policy. New York City, for example, must provide analysis under NY Article 23-A. This can now be done through the use of the FCA Notice form.

It is important to educate yourself on the local ban-the-box policy that applies to your business. Try to monitor legislative developments. Review your job applications, background check documents, and substantive policies and guidelines. Always consider how ban-the-box laws fit into your FCRA compliance process. We always recommend speaking to your lawyer to ensure your background screening program is 100% compliant.

If you have any questions about how these ban-the-box policies may affect you, feel free to respond to the blog and we will answer them. Also, look out for our ban-the-box policy map that will be a part of our new website in 2016.

NYC's Fair Chance Act Now in Effect

Starting this week, New York City’s Fair Chance Act (FCA) is in effect for employers in the city. The FCA amends the administrative code of the city of New York in relation to prohibiting discrimination based on one’s arrest record or criminal conviction. The amendment, yet another Ban the Box ordinance, dictates a conditional offer of employment is extended before inquiring about the criminal history of any applicant.

The NYC Commission on Human Rights has coordinated the release of an evaluation form, titled Fair Chance Act Notice, in conjunction with the Fair Chance Act. This form can be used by employers as a guideline for compliance with Article 23-A of New York Correction Law.  

The amendment affects New York City companies that employ more than four employees. Contractors are included in the employee count. However, any employers following state, federal, or local laws requiring a background check for employment are exempt. 

The State of Oregon Has Banned the Box

House Bill 3025 was signed on June 25^th, making Oregon the 18^th state to ban the box. Ban the Box legislation originally referred to removing the check-box on an application that required applicants to indicate if they have a history of criminal convictions. Most of the new bills referred to as ban the box legislation have stipulations beyond the exclusion of a check-box on the application.

HB 3025, continuing the trend sweeping the United States, goes a step further by prohibiting employers from demanding the disclosure of criminal convictions prior to an initial interview. The bill applies to all employers in Oregon outside of a few exceptions and will take effect in January 2016. Exceptions include employers that are a part of the criminal justice system, law enforcement agencies, and employers seeking non-employee volunteers.

You can view the bill in its entirety here.

For an up-to-date look at ban the box legislation and how it will affect your business, go to NELP.org

Improving Your Employment Screening Program in 2015

As we kick off 2015, we thought it would be fitting to provide you with some insight on refining your employment screening program. Understanding the basics of employment screening is important, whether you are initiating an employment screening program for the first time or seeking improvements for an existing program. Is improving your program on the agenda for 2015? This 3-part blog will look at three areas in your background screening program worth reviewing: Legal Compliance, Choosing the Right Screening Package, and Customer Service. 

Part 1: Compliance

In Regards to the EEOC:

The first step to promoting compliance is creating a written policy for employment screening at your company. Creating a clearly defined policy and strictly adhering to those guidelines is a great way to protect your company. One recommendation is to clearly state exactly what background information will be utilized for each job position.

You want a non-discriminatory background screening process that does not change from person to person. However, it should be modified for each available job position. EEOC guidance suggests companies determine whether a criminal conduct exclusion is job related and consistent with business necessity. And remember, valid exclusions include relevant convictions, NOT arrests.

The EEOC, which acts in interest of Title VII of the Civil Rights Act, states that employers need to show that their policy operates to effectively link specific conduct, and its dangers, with the risks inherent in the duties of a particular position. This is one of the three factors that the EEOC suggests employers take into account when considering denial of employment. The other two factors are the nature of the crime and the time elapsed. For more information, please read the EEOC’s guidance in full.

In Regards to the FCRA:

The Fair Credit Reporting Act regulates the collection, dissemination, and use of consumer information. Employers are required to follow the regulations set forth by the FCRA when using consumer reporting agencies (like S2Verify) to obtain consumer reports for “employment purposes”. 

The numerous FCRA class action lawsuits from 2014 just go to show that employers are still getting this wrong. O’Reilly Auto Parts, Swift Transportation, Whole Foods, Canon Solutions America, Dollar General, and Publix are just a few companies that were recently involved in costly class action lawsuits. Failure to comply with the FCRA can cost companies millions of dollars. 

Below are rules you must follow to maintain FCRA compliance:    

                                           

Before obtaining background information:

1.       Disclosure and Authorization

a.       Disclosure and authorization forms were the reason many employers (O’Reilly Auto Parts, Publix, Whole Foods) faced class action lawsuits in 2014.

b.      Must be signed BEFORE the background check

c.       Disclosure and authorization forms should be standalone documents and cannot contain extraneous information such as release language

If you plan to deny employment based on the background report:

1.       A Pre-Adverse Action Notice must be sent to the applicant. It must include:

a.       Name, address, and phone number of CRA

b.      The fact that the CRA did not make the adverse decision and cannot give reasons for the decision

c.       His/her right to a free copy of the consumer report

d.      His/her right to contact the CRA to dispute the accuracy of the report

e.      Summary of Rights including any State specific requirements

2.       After allowing the applicant five days to dispute any information found in the report, an Adverse Action Notice is to be sent to the applicant. It must include:

a.       Notification to him/her of final decision to deny employment based on consumer report.

b.      All notification provisions used in Pre-Adverse Action letter.

In Regards to Local Laws:

While it is important to abide by the FCRA and EEOC’s standards, that alone is not enough for legal compliance. You must also stay up-to-date on local laws. In 2014, new local “Ban the Box” laws popped up in counties, cities, and states all over the country. These “Ban the Box” laws, as they are called, not only restrict the use of criminal history inquiry on the application, but potentially tell you at what point in the hiring process a background check may be run. 

A good resource to keep up with your particular city/state and any laws that may apply to your business is NELP.org. For the sake of caution, our best practice recommendation, in most cases, is to hold off on the background check until after a conditional offer is made.

NELP.org - http://www.nelp.org/page/content/banthebox/

Washington D.C. Ban-the-Box Legislation Set to Take Effect in October

Ban-the-box legislation originally prohibited employers from including the question “have you been convicted of a crime” and its associated check box. This was in an effort to rehabilitate former offenders. The thought process is that without an opportunity to gain employment, many are doomed to become repeat offenders. While recent laws in the same vein are being referred to as ban-the-box laws, this is a bit of a misnomer. The movement towards more regulations on background screening has evolved to include more stipulations than just removing a check box from an application.

The latest to join the recent push for more regulations on background screening is Washington D.C. The bill signed by Mayor Vincent Gray last month will go into effect after a 30-day period of congressional review. It is scheduled to go into effect October 21, 2014. This law, dubbed the Fair Criminal Record Screening Amendment Act of 2014, applies to all D.C. employers with 10 or more employees.

The law states:

•          Employers may not make any inquiry about an arrest or criminal accusation against the applicant, which is not pending and did not result in a conviction.
•          An employer must not make any inquiry about an applicant’s criminal history until after making a conditional offer of employment.
•          A conditional offer can only be rescinded if there is a “legitimate business reason”

Exceptions where inquiry into an applicant’s criminal may precede a conditional offer:

•          Where any federal or District law or regulation requires the consideration of an applicant’s criminal history for the purposes of employment
•          Where a position designated by the employer is part of a federal or District government program or obligation that is designed to encourage the employment of those with criminal histories

Penalties for violation:

•          For employers that employ 11-30 employees, a fine of up to $1,000
•          For employers that employ 31-99 employees, a fine of up to $2,500
•          For employers that employ 100 or more employees, a fine of up to $5,000

It is crucial that D.C. employers update their hiring practices no later than October 21^st.  Ensure that the application has been reviewed and modified accordingly. Also, make sure that a criminal background check is not performed before a conditional offer has been made. Lastly, the exclusion of an applicant based on criminal conduct must be job related and consistent with business necessity. If you are not sure what that means, refer to this EEOC guidance.

There are now 13 states and around 70 cities and counties in the U.S. that have enacted some form of “Ban-the Box” legislation. We will continue to report new developments so that you may remain informed and in compliance with the local laws that apply to you and your organization. Another good resource for staying up-to-date is www.nelp.org.

Ban-the Box Update (August 2014)

Many cities and states are adopting or expanding "Ban the Box" regulations. Here is the latest.

San Francisco

                Today, August 13^th, San Francisco’s Fair Ordinance goes into effect. They certainly are not the first to enact what many are calling “Ban the Box” legislation. This ordinance applies to both the public and private sector. San Francisco employers need to ensure they are up to code on their background screening.

Illinois

                Another change employers should be aware of is Illinois’ expanded “ban the box” legislation that now includes private employers. This makes Illinois the fifth state in the nation to require both public and private employers to limit inquiry about convictions. The other states are Minnesota, Hawaii, Massachusetts, and Rhode Island. Illinois is calling their “Ban the Box” legislation the Job Opportunities for Qualified Applicants Act. It takes effect on January 1, 2015. 

New Jersey

                Governor Chris Christie signed the Opportunity to Compete Act on August 11^th. This law expands New Jersey’s “Ban the Box” regulations to the private sector, much like Illinois’ Job Opportunities for Qualified Applicants Act. It is set to take effect on March 1, 2015. This makes New Jersey the 13^th state to adopt “Band the Box” legislation, and the 6^th state to expand the regulations to the private sector.

“Ban the Box” legislation is spreading like wildfire. As a background screening provider, the only thing we can do is keep you updated on the latest employment screening standards.

While S2Verify cannot provide legal advice, we can suggest you discuss with counsel, the following guidelines:

•          Do not ask about arrests that did not lead to a conviction

•          Do not ask about an individual’s conviction history at the beginning of the hiring process (such as the application)

•          Only after a conditional offer has been made can one ask about criminal history

•          Only convictions related to the job can be considered in the decision to deny employment

Louisville: The Latest City to "Ban the Box"

Add Louisville to the list of cities who have “banned the box”. The Louisville Metro Council passed the new law earlier this month. This means that city employers cannot include a section on the application that asks the applicants to reveal if they have been previously convicted. Louisville joins over 50 cities/counties who have some form of the ban-the-box policy.

These ordinances serve to discourage employers from denying a qualified job-seeker based solely on a prior conviction. This particular law pertains to jobs for the City as well as vendor/contractors who do business with the City. The law pushes back the inquiry into the applicant’s criminal history until later in the hiring process. For more on Louisville’s new ordinance, visit NELP.org.

We are seeing more and more of these policies. Half of the states in the U.S. now have at least one city with a ban-the-box policy. Expect more soon. We will keep you up-to-speed. 

Background Screening Compliance Update

Ban-the-Box Compliance Update

As a provider of employment screening, we feel an obligation to communicate the manner in which our services can and cannot be used. We stress compliance with FCRA requirements, adhering to EEOC guidelines, and state regulations for the well-being of your firm. Due to an increase in the number of cities and counties passing “ban-the-box” regulations, we are providing you an updated list. This will serve as an additional guide as to the role of background screening in your hiring process. Data here is from the National Employment Law Project (NELP.org). The table below details the differences in the “ban-the-box” regulations for each city. 

The differences are as follows:

• which employers the law applies to (public or private sector)

• which positions the law applies to (specific positions or all)

• when a background check can be issued (at what point in the hiring process)

• whether or not EEOC criteria is included in law

• the right of an applicant to appeal background screening results

• Whether or not a copy of the background check report is to be provided

*Policies apply to contractors doing business with the Human Services Department

You will notice that some of these cities/counties incorporate the EEOC guidelines in their ban-the-box policies. For those of you who are not familiar with these guidelines, I have included them below.

The Equal Employment Opportunity Commission’s Policy on Pre-Employment Background Checks:

“There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when:

• considering the nature of the job

• the nature and seriousness of the offense

• the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.

For more information, see,

 e.g., http://www.usis.com/commercialservices/transportation/FaqStateImpact.htm.

In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Certain other disclosures are required upon the employee's request and prior to taking any adverse action based on the reports obtained.”

This information is from The Equal Employment Opportunity Commission

For more clarification from the EEOC about their policies, check out this article.

The importance of compliance cannot be overstated. I hope this serves as a compliance guide for you and your company. I will continue to provide updated information on the ever-changing laws in the employment screening industry. If you have any questions or comments, please feel free to provide your input. I will get back to you as soon as I can.

Richmond, CA Takes "Ban-the-Box" A Step Further

Richmond, California added Chapter 2.65 to the Municipal Code entitled “Ban the Box” on July 30, 2013. Unlike other cities, Richmond is requiring that no employer can make inquiries into past criminal convictions at any point during the hiring process. While it does not prevent employers from doing background checks, it does prevent them from using criminal records to exclude ex-cons from their list of prospective employees

Below is a map of all the states who have adopted “Ban the Box” in some way.



Unlike, Richmond, CA, the laws in other cities mainly ban the inclusion of the checkbox for past convictions on the job application exclusively. Employers are not restricted from asking potential employees about their criminal background during the interview process.  Richmond, a city inundated with high crime and high unemployment, has taken this law a step further. Employers must refrain from discriminating against people with criminal records.

There are some exclusions from the new ordinance, of course. Jobs with children, seniors, and other “sensitive” jobs are special cases that are not included in the ordinance.

Richmond City Councilwoman, Jovanka Beckles, believes that it levels the playing field for all races. Beckles was one of the six people who approved the ordinance in a 6-1 vote in favor of the law. Those who voted in favor of the law believe that it gives ex-convicts a fair chance to have a place in our workforce, instead of turning back to crime.

The lone councilman opposed to the ordinance, Tom Butt, told a local newspaper, “It will be a nightmare to enforce and will discourage business and investment in Richmond.”

You can read city ordinance 14-13 N.S. here.


Thoughts? Good? Bad? Will this become a trend in places with high crime and unemployment?