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. 

Assessment of the Effects of EEOC's 2012 Background Screening Guidance

In December of 2012, the U.S. Commission on Civil Rights held a briefing to assess the effects of the Equal Employment Opportunity Commission’s 2012 Guidance. This briefing was held to discuss the impact that their guidance had on background screening for both black/Hispanic applicants and employers. Record of this briefing was just released as a 346-page report. I have taken the time to summarize the main points discussed in the report.

The briefing consisted of 17 speakers from diverse backgrounds. While some of the speakers were pro-EEOC Guidance, many speakers took issue with the 2012 Guidance in some way or another.

The speakers are as follows: 

• Alfred Blumstein, Professor of Urban Systems, Carnegie Mellon University

• Carol Miaskoff, Acting Associate Legal Counsel, EEOC

• Don Livingston, Parter, Akin, Gump, Strauss, Hauer & Feld

• Garen Dodge, Partner, Jackson Lewis LLP

• Glenn E. Martin, Vice President of Development and Public Affairs and Director of the David Rothenberg Center for Public Policy at the Fortune Society

• Harry Holzer, Professor of Public Policy, Georgetown University

• Jeffrey Sedgwick, Co-Founder, Keswick Advisors

• Jonathan Segal, Partner, Duane Morris LLP, Legislative Director, Society for Human Resource Management

• Julie Payne, Sr. Vice President and General Counsel of G4S Secure Solutions USA

• Lucia Bone, Founder of Sue Weaver C.A.U.S.E. (Consumer Awareness of Unsafe Service Employment)

• Montserrat Miller, Partner, Arnall Golden Gregory; Counsel, National Association of Professional Background Screeners (NAPBS)

• Nick Fishman, Co-Founder, Chief Marketing Officer and Executive Vice President, EmployeeScreenIQ

• Richard Larson, President, Winning Work Teams, Inc.

• Richard Mellor, VP, Loss Prevention, National Retail Federation

• Roberta Meyers, Director of Legal Action Center’s National Helping Individuals with Criminal Records Reenter through Employment Network, Also Known as H.I.R.E

• Todd McCracken, President, National Small Business Association

• William Dombi, VP, National Association for Home Care and Hospice

Objective of EEOC Guidance

The EEOC claimed the 2012 Guidance is in response to a disparate impact background screening has had on racial minorities. In other words, minorities have been experiencing difficulties while seeking employment due to a past criminal conviction. The objective of the EEOC is to give minorities an equal chance to re-integrate into society.

The Guidance:

• Puts employers on notice that categorical exclusions for people with certain arrest and conviction records may violate Title VII

• Emphasizes its earlier recommendation that job applications not ask about criminal records, and if they do ask, that they limit inquiries to conviction records for which exclusion would be job-related with business necessity

• Offers a series of examples of common policies and practices that violate Title VII 

• Informs local and state governments that barring people with certain criminal records from jobs or occupational licenses also could violate Title VII.  

Advocates of the EEOC Guidance made several arguments for its most recent list of best practices:

• There are over 65 million individuals with criminal records in this country

• By age 35, one-third of all young black men have been incarcerated at some point. 

• A person should not be haunted many years later by a mistake they made at a young age.

• Criminal Records have a more negative impact on employment for minorities.

• Recidivism probability declines with time clean after an arrest or conviction.

• Recidivism is less probable if an individual gains employment.

Speaker Glenn E. Martin presented a study that showed that black applicants with a criminal record were twice as likely to be denied a job as white applicants. He also reported that black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

Harry Holzer made several compelling points:

“The prevalence of arrests and convictions among less-educated American men substantially reduces employer willingness to hire them later in life and worsens their employment outcomes more generally, in ways that generate clear “disparate impacts” on minority (especially black) men.

The very high costs of previous criminal histories on employment are borne not only by the offenders themselves, but also by their families and children, their communities, and the US economy more broadly; accordingly having some successful policy efforts to improve employment outcomes for this population are in the nation’s interest.

The EEOC Guidance should be viewed as one of several potentially effective legal and policy efforts to reduce the many barriers to employment among men with criminal records and thus to improve their employment outcomes.”

The Other Side of the Argument

Many speakers stressed that employers should not be restricted in their use of background checks due to:

• The reality of recidivism

• The prevalence of violent and/or theft-related offenses among inmates. 

• OSHA rules that require employers to provide a safe workplace. 

• Federal, state and local laws and licensing requirements that restrict individuals with certain convictions from employment in selected occupations. 

• State laws that put employers at risk for hiring mistakes. 

• Employer desire to protect business assets.  

Major Concerns 

Many speakers took issue with at least some part of the 2012 Guidance. The concerns that were echoed by the majority were:

• The Guidance is unclear. It is written in a way that is confusing to small business owners.

• The Guidance is vague about the act of conducting an individualized assessment.

• A conflict may arise when a state law mandates a background check, but taking adverse action based on that background check may result in a class action.

• The EEOC’s strategic enforcement plan to create class claims from individual claims encourages investigators to conduct overbroad inquiries.

• The EEOC’s restriction on the use of criminal background checks will have disastrous effects on public safety.

• The guidance results in more risk to the employer. For instance, an employer may feel pressure to hire an employee with a criminal record against his better judgment, resulting in a negligent hiring law suit. 

The EEOC aims to give minorities a fair chance to obtain a job after a conviction. They argue that the struggle to re-integrate into society has a profound effect on not only the individuals involved, but the economy as a whole. Frankly, nobody wants an individual to be perpetually unemployed because of a single mistake they made. But according to those opposed to the guidance as it stands, here lies the dilemma. 

The opposition claims if an employer takes a chance on an applicant with a prior conviction, employees and clients are potentially put at risk. By treating minorities with prior convictions as a protected class, are we putting co-workers and customers at risk? Who is correct, the EEOC or those who spoke out against the Guidance? 

We do not have the answer, but we do feel a certain responsibility to help companies comply with the EEOC’s 2012 Guidance. Our clients can rest assured that we will provide as much information as possible to help them maintain compliance. Some of the concerns that were voiced by several speakers have not yet been answered, but we will keep an eye on any potential developments/changes the EEOC might make. 

You can find the U.S. Commission on Civil Rights’ entire report here. Comments? Concerns?

New California Law in Effect: Senate Bill 530

Attention: California Employers

Hundreds of new laws went into effect in California at the beginning of the year. One in particular, Senate Bill 530, has a profound effect on employers and their hiring practices.

The law states “No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law”.

Basically, if it did not result in a conviction, you (employers) cannot ask the applicant about it. This applies to diversion programs as well. A satisfactorily completed deferral program is not classified as a conviction. Upon completion of diversion programs, records are often expunged. If the conviction has been expunged, you cannot ask about it. Seeing a pattern? DO NOT ask or seek out information pertaining to charges that did not result in a conviction or have been sealed by the courts.

It also states that you cannot use another source to get information on dismissed criminal charges. As a consumer reporting agency, we focus on reporting convictions. Prior to this law coming into effect, we already refrained from including anything other than charges that resulted in a conviction. This new law is aimed at employers in California who are inquiring about charges that were dismissed and things of that nature.

The law seeks to protect ex-offenders from being discriminated against in the hiring process. If an employer breaks this law, the applicant can bring action against that person to recover actual damages or $200 (whichever is greater) as well as reasonable attorney’s fees. The intentional violation of this law will allow the applicant to treble actual damages or $500 (whichever is greater) plus reasonable attorney’s fees. This intentional violation is also a misdemeanor punishable by a fine of up to $500.

As an employer, you are not privy to information regarding an applicant’s arrests that did not result in a conviction. The law is meant to give someone with a criminal record a second chance. Breaking this law can result in civil penalties. You, as an employer, are responsible for being aware of this new law. Intentionally ignoring the new law can result in misdemeanor criminal charges.

Here is the entire bill.

Newark (NJ) Ordinance "Bans the Box" and Significantly Restricts the Use of Criminal History Information in Employment

The City of Newark, New Jersey recently passed an ordinance that will significantly impact employers’ and other entities’ ability to conduct criminal background checks or even ask about a candidate’s criminal background. The ordinance limits both when and the extent to which employers may ask about or use criminal history in employment. Newark’s ordinance12-1630, entitled “Ordinance To Assist The Successful Reintegration Of Formerly Incarcerated People Into The Community By Removing Barriers To Gainful Employment And Stable Housing After Their Release From Prison; And To Enhance The Health And Security Of The Community By Assisting People With Criminal Convictions On Reintegration Into The Community And Providing For Their Families,” goes into effect on November 18, 2012.

Newark’s ordinance is the latest example of a series of efforts at the federal, state and local level aimed at curtailing employers’ ability to use criminal history information in employment. At the federal level, employers should be aware of the Equal Employment Opportunity Commission’s (EEOC) April 25, 2012 Guidance on the Use of Arrest and Convictions (the Guidance) which sets forth practices employers may want to consider so as not to be a target of the EEOC. Similarly, a number of states have pending legislation seeking to follow the EEOC’s lead. This, in addition to other states which have already regulated this area.

Who is Covered Under Newark’s Ordinance

Newark’s ordinance is only applicable when the “the physical location of the prospective employment [is] in whole or substantial part, within the City of Newark.” In that sense, it is of limited local application. Importantly, the term “employer” is defined as “any person, company, corporation, firm, labor organization, or association, which has five (5) or more employees and does business, employs persons, or takes applications for employment within the city of Newark…”

“Employment” is defined more broadly, however, as “any occupation, vocation, job, work or employment with or without pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.” (emphasis added).
These definitions suggest that the prohibitions contained in the ordinance, as well as the affirmative obligations it imposes, may apply with equal force when an employer is seeking volunteers, students, or independent contractors as opposed to solely employees.

As always, we suggest you consult with your own counsel regarding this matter, however feel free to contact us for further information.

Background Checks & Credit Reports

 On March 13th, Commissioner Victoria Lipnic of the Equal Employment Opportunity Commission (EEOC) spoke at an event on "Due Diligence, Background Checks and Employment: Protecting the Safety of Employees, Customers and At-Risk Populations." Lipnic stated that the EEOC is "likely" to issue new guidance to employers on the use of both criminal history and credit background checks in the near future.

Regarding criminal history, Lipnic noted that the EEOC was unlikely to establish a strict rule about the specific period of time after which a conviction could no longer be considered in making employment decisions. Lipnic, however, cautioned that employers should avoid "blanket" bans on hiring individuals with criminal convictions as such bans could have a disparate impact on certain minority groups.

The event was hosted by the National Association of Professional Background Screeners, the Consumer Data Industry Association, and the U.S. Chamber of Commerce.

(http://www.eeoc.gov/eeoc/lipnic.cfm)

Many in U.S. Are Arrested by Age 23, Study Finds

By age 23, almost a third of Americans have been arrested for a crime, according to a new study that researchers say is a measure of growing exposure to the criminal justice system in everyday life.
The study, the first since the 1960s to look at the arrest histories of a national sample of adolescents and young adults over time, found that 30.2 percent of the 23-year-olds who participated reported having been arrested for an offense other than a minor traffic violation.

That figure is significantly higher than the 22 percent found in a 1965 study that examined the same issue using different methods. The increase may be a reflection of the justice system becoming more punitive and more aggressive in its reach during the last half-century, the researchers said. Arrests for drug-related offenses, for example, have become far more common, as have zero-tolerance policies in schools.

The study did not look at racial or regional differences, but other research has found higher arrest rates for black men and for youths living in poor urban areas. Criminal justice experts said the 30.2 percent figure was especially notable at a time when employers, aided by the Internet, routinely conduct criminal background checks on job candidates.

“This estimate provides a real sense that the proportion of people who have criminal history records is sizable and perhaps much larger than most people would expect,” said Shawn Bushway, a criminologist at the State University at Albany and a co-author of the study, which appears in Monday’s issue of the journal Pediatrics.

The study analyzed data collected as part of the federal government’s National Longitudinal Survey of Youth. The 7,335 participants were nationally representative and ranged in age from 12 to 16 when they were enrolled in the survey in 1996. The first interviews were conducted in 1997. Follow-up interviews have been carried out annually since then. The researchers found that the probability of a first arrest accelerated in late adolescence and early adulthood — at 18, 15.9 percent of the participants reported having been arrested — and then began to flatten out as the youths entered their 20s.

Robert Brame, a professor of criminal justice and criminology at the University of North Carolina, Charlotte, and the lead author of the study, said he hoped the research would alert physicians to signs that their young patients were at risk.

“We know that arrest occurs in a context,” Dr. Brame said. “There are other things going on in people’s lives at the time they get arrested, and those things aren’t necessarily good.”


If doctors can intervene, he added, “It can have big implications for what happens to these kids after the arrest, whether they become embedded in the criminal justice system or whether they shrug it off and move on.”      

Charge: Worker Used DMV computers for ID Theft

A former clerk at the North Carolina Division of Motor Vehicles is facing 18 charges, including five counts of identity theft, in a state probe that has spanned more than a year.The State Bureau of Investigation began looking at Kimberly Nicole Torres, 36, of 102 Indian Trail in Wendell, in January 2010 after copies of driver's licenses and Social Security cards were found in her desk.She was fired a month later, and Steve Abbott, a spokesman for the state Department of Transportation, said she did not steal any personal information from the state.

Torres was arrested Friday and was in the Wake County jail under a $275,000 bond Monday evening. Search warrants allege that she used a DMV computer to apply for payday loans in other people's names.Once the loans were deposited into bank accounts, she told investigators, she would withdraw the money, take a cut and close the account.If convicted on the identity theft charge, as well as several charges of obtaining property by false pretense and accessing government computers to defraud and forgery, she could face up to 27 years in prison.

"She didn't have access to anything work-wise, anything DMV – such as personal records, drivers' license. She had no access to that," Abbott said.

It's unclear where Torres might have gotten the Social Security cards and driver's licenses.According to court records, Torres has a lengthy criminal history, including several convictions prior to being hired by the state for assault with a deadly weapon and breaking and entering.

DMV employees are required to have a background check, Abbot said, but because Torres was hired by the DOT, a check never happened.


"We do not do background checks. It's not just DOT, it is all state agencies," Abbott said. "There is no background check required unless it's a job that would require access to private information, access to money or other issues like that."