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.

Maintaining a Drug-Free Workplace in 2016

According to the Substance Abuse and Mental Health Services Administration (SAMHSA), illegal drug use is on the rise. A national survey found a large increase in illicit drug users between 2013 and 2014. 27 million Americans aged 12 or older, a number that is surely still on the rise, identified themselves as illicit drug users last year. This number translates to about 1 in 10 Americans. This high number continues to be driven by marijuana use (22.2 million users) and the abuse of prescription drugs (4.3 million users). 

The near 13% increase in illicit drug use in the span of a year can be mainly contributed to the legalization of marijuana use in Washington and Colorado. From 2012 to 2013, positive tests for marijuana increased 6.2 percent nationally. Positive drug test results for Colorado and Washington increased by 20 percent and 23 percent respectively. As a reminder to companies in either one of these states, the legalization of marijuana does not currently prohibit employers from testing for the substance.

The staggering numbers may have you believing that the numbers are skewed. You may think that surely a large proportion of illicit drug users are unemployed. However, of the more than 22 million illicit drug users aged 18 or older, just over 70 percent were employed either full or part time. That means your company may be susceptible to a loss caused by a workplace accident or lowered productivity.

Drug Abuse on the job can impact your company in the following ways:

• Erratic work quality

• Lack of focus

• Lowered productivity 

• Increased absenteeism

• Unexplained disappearances from the job site

• Carelessness, resulting in errors

• Needless risk taking

• Disregard for safety, therefore increasing accidents

• Extended breaks and/or early departures

• Automobile accidents 

What can I do to maintain a drug-free workplace?

Review your company’s drug testing policy. As an employer, you need to both understand the purpose of the substance abuse testing program and effectively communicate the policy to candidates and employees prior to the program start date. With medical marijuana legal in 23 states and recreational marijuana legal in 4 states, look over the section that addresses the use of marijuana. Make sure you have clarified your company’s stance on safety, marijuana use, and potential ramifications for violations of your company’s policy.

Continue or increase drug testing. There are many reasons for issuing a drug test. Many companies engage in pre-employment drug testing, hoping to deter users from applying for positions. Random drug testing is an option that promotes workplace safety and more effectively deters workplace drug use. Post-accident/reasonable suspicion testing also communicates a company’s stance on workplace safety. This method provides cause for termination and reduces workers compensation exposure. Return to duty/follow-up testing reduces risk while allowing trained employees to return to work. This method also deters relapse. 

It might be time that you review your drug screening policy for the new year.

Sources include:

SAMHSA National Survey on Drug Use and Health

NAPBS

Current Consulting Group LLC

Guidance Issued for New York City Fair Chance Act

In our last blog, we talked about New York City’s Fair Chance Act (FCA), a law passed last month that requires a conditional offer to be extended to the applicant before conducting a background check. Earlier this month, to help New York employers understand the new law, the New York City Commission on Human Rights released an enforcement guide as well as a revised FCA Notice evaluation form. The revised version appears to be a result of concerns that arose upon the release of the original notice form. The FCA Notice Form is intended to be provided with the pre-adverse-action notice to justify the denial of employment based on the analysis of NY Correction Law Article 23-A factors.

The guidance breaks down violations of the FCA as such:

1. Declaring, printing, or circulating – or causing the declaration, printing, or circulation of – any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows. This includes, without limitation, advertisements and employment applications containing phrases such as: “no felonies,” “background check required,” and “must have clean record.”

 2. Making any statement or inquiry, as defined in Section II of this Guidance, before a conditional offer of employment, even if no adverse action follows.

3. Withdrawing a conditional offer of employment based on an applicant’s criminal history before completing the Fair Chance Process as outlined in Section V of this Guidance. Each of the following is a separate, chargeable violation of the New York City Human Right Law (NYCHRL):

a) Failing to disclose to the applicant a written copy of any inquiry an employer conducted into the applicant’s criminal history;

b) Failing to share with the applicant a written copy of the employer’s Article 23-A analysis;

c) Failing to hold the prospective position open for at least three business days, from an applicant’s receipt of both the inquiry and analysis, to allow the applicant to respond.

4. Taking an adverse employment action because of an applicant’s non-conviction.

Penalties for violations will be based on the following factors, among others:

1.       The severity of the violation

2.       The existence of additional previous or contemporaneous violations

3.       The employer’s size, considering both the total number of employees and its revenue

4.       Whether or not the employer knew or should have known about the Fair Chance Act

In summary, the FCA does not allow an employers’ application or print of any kind to mention background checks or the requirement of a clean record to obtain employment. Employers may not inquire about one’s criminal history before a conditional offer of employment. If an employer is taking adverse action they must use disclosure and authorization forms, must provide a written copy of theArticle 23-A analysis AKA the FCA Notice, and must allow three business days for the applicant to dispute the findings of the background check. Lastly, employers cannot deny employment based upon any arrests that did not lead to a conviction.

The entire interpretive guide can be found here.

The new Fair Chance Act Notice can be found here.

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. 

Knowing the Difference between Form I-9 and E-Verify

Employers often use E-Verify and Form I-9 interchangeably. But the truth is, while they are related, they are very different processes.

Form I-9, from the U.S. Citizenship and Immigration Service (USCIS), is the core of E-Verify.  It is used by an employer to verify an employee’s identity and eligibility for employment in the United States. E-Verify is not to be mistaken as an electronic version of Form I-9.  E-Verify is an internet-based system that compares information from the Form I-9 to government records to confirm that an employee is authorized to work in the United States.

Although E-Verify uses information from Form I-9, there are some important differences between Form I-9 and E-Verify requirements:

Form I-9	E-Verify
Is mandatory	Is voluntary for most businesses
Does not require a Social Security number	Requires a Social Security number
Does not require a photo on identity documents (List B)	Requires a photo on identity documents (List B)
Must be used to re-verify expired employment authorization	MAY NOT be used to re-verify expired employment authorization

Therefore, E-Verify cannot be used to replace Form I-9. E-Verify is used in conjunction with Form I-9 to help employers confirm that an employee is authorized to work in the U.S.

Why would an employer utilize E-Verify?

1.     It may be a requirement if the employer is a federal contractor or conducts business in a state that requires it.

2.     Participation makes it possible to hire some foreign students doing extended Optional Practical Training in a STEM (Science, Technology, Engineering, or Math) profession.

3.     E-Verify creates a presumption of an employer’s good faith compliance in the event of an I-9 audit.

4.     Many employers, especially those with large payrolls and multiple offices throughout the country, like the ease of using E-Verify and the security it provides in ensuring a legal workforce, especially when used in conjunction with an electronic I-9 system.

 Which states require employers to use E-Verify?

 There are currently 20 states that require the use of E-Verify to some extent. Click here to see which states require E-Verify and in what capacity. 

"What's the Hold Up?" — 5 Reasons For Delays and How To Overcome Them

     Delays in the hiring process can be frustrating. Filling a job position, in most cases, is very time-sensitive. The last thing you want to hear is that the background check is holding up the entire process. So in order to keep you from pulling out your hair, we have compiled a list of some of the most common delays and why these delays happen. We have even provided some tips to combat delays in your screening program.

1.   Inaccurate Personal Information

Errors when inputting important identifiers, such as the name or date of birth of the applicant, can mess up the background check. Nothing will delay the process more than having to redo the search, starting with re-entry of personal identifiers. Failure to use accurate information will require that you reach back out to the applicant to make corrections. This is a sure way to bring your process to a screeching halt. Errors made in entry on I9’s or EVerify orders cannot be fixed by S2Verify, requires a cancellation of the search, by law, and re-entry by the client.

2.    Additional Information Required

The background check may be at a standstill if you have not uploaded necessary documentation. Depending on the requirements of the background check, it could be anything from a driver’s license to a consent form. First and foremost, make sure you are doing everything that you can on your end to complete the background check and get the applicant on the job.

3.     Adjudication at the Local Level

Simply running an applicant through the national criminal database does not constitute a comprehensive background check. The information can be inaccurate based upon time lapse or out-of-date. Due diligence requires verification of any records found in the national criminal database at the local level (i.e. county or state courts). Also, not every court system has records online. This results in manual court record retrieval, which can take some time. Adjudication at the county level is best practices and a necessary procedure to deliver accurate, current data.

4.      Failure to Reach Sources for Education or Employment Verification

Trying to get a hold of someone from the appropriate school or company can prove difficult at times. For example, getting proof of an applicant’s high school diploma can be a struggle during the summer months. Verification can be one of the biggest obstacles preventing the timely completion of an applicant’s background check.

5.     Court Closings

Factors such as holidays and harsh weather conditions can result in local courts closing for a period of time. Background checks that are awaiting information from one of these courts are stuck in limbo until the courts re-open. Currently, not every court offers online access to records. Unfortunately, this is a delay that cannot be avoided.

What can I do to overcome these delays?

Set-backs, such as court closings and the adjudication of records, cannot be avoided. Until every court provides access to records online, weather and holidays will continue to be a problem. This is a reality, regardless of the provider you choose for your background checks. There are a few things, however, that you can do to ensure the greatest result in terms of turnaround time:

1.     Double check to make sure the information inputted is correct before you submit it for a background check. Two transposed digits can mean the difference between an erroneous and an accurate background check.

2.     Make sure that the background check is not pending the upload of documentation on your end. Certain searches require additional information, such as a driver’s license or consent form.

3.      Ensure that your provider is doing everything they can to verify past employment and education. Ask them what their procedure is. Do they use a database? Do they outsource the work? How often are they reaching out to employers/schools? If they are not calling sources frequently enough, they will not be able to verify employment/education. Hold your provider accountable.  

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