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. 

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?

Texas House Bill 1188 Limits Liability

Texas House Bill 1188

This bill limits the liability of employers, general contractors, premise owners and third parties for hiring employees with criminal convictions. It was introduced in February of this year, and it will take effect on September 1, 2013.
HB 1188 states that no legal action can be taken against an employer who negligently hires an employee with a criminal record. Now before you consider calling off background checks to cut your costs, be aware that there are many exceptions to this bill.

Exceptions-

An employer may be sued for negligently hiring an employee:

I. who has committed a criminal offense while performing duties similar to those expected to be performed in the course of employment

II. who has committed an criminal offense under conditions similar to those expected to be encountered in the course of employment

III. who has committed murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and/or aggravated robbery

Even with this law in place, you may still find yourself answering for the actions of your employees. Continuing to screen your applicants will protect your company and its reputation, as well as save you from a legal nightmare. The cost of a law suit is much more than the cost of a criminal background check, so don’t put your company at risk.

Click here for House Bill 1188 in its entirety.

Man Denied Job Over 20-Year-Old Criminal Conviction, Wins Discrimination Lawsuit

A job applicant for a temporary staffing agency was denied a position over a record from the 1980's.  He filed a discrimination case against the temporary staffing agency and won. 

“Employment policies that impose a blanket exclusion on people with past convictions, without any consideration of the relationship of the conviction to the job in question, can constitute unlawful discrimination," Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia, said in a press release.

The nonprofit law center helped the man file the employment discrimination lawsuit, which explains why denying an applicant employment based on their criminal record violates the law:

"While such policies are facially neutral, they produce severe disparate impact on racial minorities, including African-American, Native Americans and Latinos, because of the significantly higher rates of criminal convictions experienced by these populations."

Recently Pepsi settled a similar case for $3.1 million dollars for using arrest records that kept approximately 300 people from getting a job.

"More companies are getting sued because of their inconsistent hiring policies, using arrest records, and using convictions that are not within the Federal or State guidelines or inconsistently applying the law", says Bill Whitford, CEO of S2Verify.  "Companies need to review their policy and framework around hiring to adjust to these actions and lawsuits"    

Employers Add 200,000 Jobs, Unemployment Lowest in Nearly 3 Years

A burst of hiring in December pushed the unemployment rate to its lowest level in nearly three years, giving the economy a boost at the end of 2011. The Labor Department said Friday that employers added a net 200,000 jobs last month and the unemployment rate fell to 8.5 percent, the lowest since February 2009. The rate has dropped for four straight months.The hiring gains cap a six-month stretch in which the economy generated 100,000 jobs or more in each month. That hasn’t happened since April 2006.

“There is no question that today’s employment report is a positive and there is also no question that the pace of job growth has accelerated of late,” said Dan Greenhaus, an analyst at BTIG LLC, a brokerage firm
A better job market is a positive sign for President Barack Obama, who is bound to face voters with the highest unemployment rate of any sitting president since World War II. Unemployment was 7.8 percent when Obama took office in January 2009.

Still, the level may matter less to his re-election chances if the rate continues to fall. History suggests that presidents’ re-election prospects hinge less on the unemployment rate itself than on the rate’s direction during the year or two before Election Day.

For all of 2011, the economy added 1.6 million jobs, better than the 940,000 added in 2010. The unemployment rate averaged 8.9 percent last year, down from 9.6 percent the previous year. Economists forecast that the job gains will top 2.1 million this year.

The December report painted a picture of a broadly improving job market. Average hourly pay rose, providing consumers with more income to spend. The average work week lengthened, a sign that business is picking up and companies may soon need more workers.

And hiring was strong across almost all major industries. Manufacturing added 23,000 jobs, as did the health care industry. Transportation and warehousing added 50,000 jobs. Retailers added 28,000 jobs. Even the beleaguered construction industry added 17,000 workers. More jobs and higher pay are crucial to helping the economy grow. They could enable shoppers to increase spending, which fuels 70 percent of economic activity.

The economy likely grew at an annual rate of above 3 percent, a healthy pace. Still, the job market has a long way to go to recover from the Great Recession. The nation has 6 million fewer jobs that it did in December 2007, when the recession began. In addition to the more than 13 million who were unemployed in December, a lot of people can’t find full-time work. And many who are unemployed have stopped looking for jobs. The government only counts people as unemployed if they are actively searching for jobs.
When including those groups, the broader “underemployment” rate was 15.2 percent. That’s down from 15.6 percent the previous month, but still high. The figure has dropped for three straight months.
A more robust hiring market coincides with other positive data that show the economy ended the year with some momentum.

Weekly applications for unemployment benefits have fallen to levels last seen more than three years ago. Holiday sales were solid. And November and December were the strongest months of 2011 for U.S. auto sales.

Many businesses say they are ready to step up hiring in early 2012 after seeing stronger consumer confidence and greater demand for their products.

Link to article: http://www.washingtonpost.com/business/economy/sixth-straight-month-of-solid-hiring-expected-when-government-reports-on-december-job-growth/2012/01/06/gIQAv7lMeP_story.html?wpisrc=al_comboNE_b

Employers Must Begin Using Standard Form I-9 in Commonwealth of the Northern Mariana Islands

Beginning on November 28, 2011, employers hiring individuals for employment in the Commonwealth of the Northern Mariana Islands (CNMI) must begin using the standard ‘Form I-9, Employment Eligibility Verification’ for all new hires and reverifications in the CNMI, according to a page titled “Form I-9 Guidance for Employers Hiring Individuals in the Commonwealth of the Northern Mariana Islands” on the U.S. Citizenship and Immigration Services (USCIS) web site.

According to the USCIS web site:

On Nov. 28, 2009, the Immigration and Nationality Act (INA) and other Federal immigration laws took effect in the Commonwealth of the Northern Mariana Islands (CNMI), as provided by the Consolidated Natural Resources Act of 2008.  As a result, since Nov. 28, 2009, CNMI employers have been required to verify the identity and employment authorization of their new hires as required under U.S. law.  Employers in the CNMI are subject to the same civil fines and criminal penalties for Form I-9 violations as U.S. employers.

From Nov. 28, 2009 until Nov. 27, 2011, employers used Form I-9 CNMI rather than the standard Form I-9 to verify the identity and employment authorization of their new hires.  Form I-9 CNMI is the same as the standard Form I-9, with one exception:  Form I-9 CNMI contains additional List A documents issued by the CNMI government that are not acceptable on the standard Form I-9.  These additional documents are only acceptable until Nov. 27, 2011. 

By Nov. 28, 2011, all workers who previously held CNMI-issued employment authorization must have another basis of work authorization under U.S. law, or have a petition pending for CNMI-only transitional worker status as described below, to continue working in the CNMI. 

Employers hiring individuals for employment in the CNMI may only use Form I-9 CNMI until Nov. 27, 2011.  Beginning on Nov. 28, 2011, employers must use the standard Form I-9 for all new hires and reverifications in the CNMI.


The U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States. The Commonwealth of the Northern Mariana Islands (CNMI) occupies the western Pacific Ocean and is in political union with the United States. Under the union, in general, U.S. federal law applies to CNMI.

"Statewide Background Checks Miss Records"

Many companies think that a statewide background check is more complete than searching the counties that an applicant has lived and/or worked.   "In some cases, that is not correct." Bill Whitford, CEO of S2Verify.   "Many states are not on a unified court system and rely on the county to report the records to the state.   However, in many instances, this simply does not happen."

It is important to understand each state and then determine if a statewide is the best search.   That is why companies need to contract with knowledgable and experienced Employment Screening companies, like S2Verify.   We are amazed at the lack of knowledge among prospects about what they are ordering and how it impacts their business.  

In one instance, one of our competitors was selling statewide searches and using a database.  However, they weren't informing the company that this was a database search.   In fact, they were offering a statewide search in states like CA that don't offer a statewide search. 

Here is an article that proves you need to be knowledgeable about each state.

Texas background checks let felons slip through cracks in surprising numbers

Stephen Dean

, Houston Page One Examiner

September 29, 2011 - Like this? Subscribe to get instant updates.

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If employers or even police run a criminal background check, thousands of convicted felons could be given a clean slate because of widespread failures at courthouses throughout the state, according to a new state audit.

Courts and prosecutors throughout Texas are supposed to quickly submit convictions for arson, burglary, and more serious crimes but the report by the Texas Auditor's office finds more than a-quarter of the arrests are not showing up on state background checks because local police agencies and county courthouses are not sending that data to the Texas Department of Public Safety.

That means if one felon is convicted, the state database won't include it for months because the local police and courthouses are letting it sit on a shelf for months before sending it to the state to be included in the DPS crime database.

That means if that criminal is applying for a job driving a school bus, or trying to enter the military service, or applying for another sensitive security position, a background check won't show the conviction because the most comprehensive statewide crime database doesn't know about it.

Most background checks, especially those by private employers and small government agencies, do not check records at the local level.   They won't scour every single courthouse where an applicant has lived, but instead rely on each state's centralized database of all criminal convictions.

Local police and sheriff's departments are also required to submit information for arrests made for certain crimes, even if the person hasn't been convicted yet.   Those are among the crimes not being reported to the state, according to this report.

Today's audito report digs into all arrests made statewide in 2009 and it found that more than a-quarter of the crimes had still not been reported to Texas DPS as of January of this year.

In a February 2006 audit, 71-percent of the crimes were being reported by prosecutors and courts.   This time around, those agencies reported 73.68 percent of the arrests made in 2009.   That's only a slight improvement.
The audit explains,

"Data in the DPS's Computerized Criminal History System is not complete, and users may not receive a reliable result from criminal history background checks that are conducted based on the data in that system."

Even though Texas law requires prosecutors and courts to send that data in within weeks, DPS has no authority to slap a fine or any other punishment for agencies that are letting its criminal convictions sit on the shelves for months or years.

"A significant number of prosecutor and court records are not reported to DPS, which impairs the quality of information that DPS uses to conduct criminal history background checks,"the report continued.

Here's a serious illustration of how bad it is:
State background checks are standard when a new inmate arrives in the state prison system, but when 1,634 inmates showed up for prison or probation in November 2010, they had clean records.

That's right, convicted felons on their way into prison were listed as having no criminal record in the state DPS crime database because the local authorities hadn't yet submitted the information as they're required to do within days.

Some are required to be submitted within 7-days and others must be submitted within 30-days, but it's not always happening at all.

Today's report urges DPS to improve the timeliness and accuracy of the records it receives from local authorities, but it didn't say how that should happen since DPS is powerless to issue fines or any other sanctions for it.

The Tarrant County District Attorney's office is listed as failing to submit records, and the report points out that the Harris County District Attorney's Office and the Harris County District Clerk are also both falling short on submitting details of cases to the state crime database.

Each office said the reason this is happening is because some criminals don't have state identification numbers attached to their records, which causes them to slip through the cracks. If the state ID number is attached at booking or later before trial, they are automatically sent in when there is a conviction or other disposition.   If that number is missing, it just doesn't happen like it's supposed to, they said.

They also blamed courts for failing to submit some paperwork about the disposition of some cases.   Without that paperwork, those agencies don't know there's anything additional to report to the state.

Between September 1, 2009 and November 30, 2010, there were 65,424 arrest records submitted to DPS that could not be properly matched with their crimes or the outcomes of their cases.   That means an arrest may be listed without a conviction, or even that a person may be listed as having one charge against them when they really had 5 serious charges against them.

For those 65,424 incomplete records, the audit says local agencies submitted erroneous data or incomplete data for felonies and misdemeanor crimes.   Those all affect how a person shows up on a criminal background check.

DPS agreed with the findings of the audit and promised to work on holding meetings with local government officials throughout Texas to make sure they know how to submit timely and accurate data on crimes.
About 80% of the information is being submitted to the state electronically, while the rest are mailed or faxed.

The audit listed these hard numbers between September 1, 2009 and November 30, 2010:

• Of the 1,115,469 of the crimes that were required to be reported within 7-days, 84.25% actually were (amounting to 939,802 crimes)
• Of the 959,892 crimes that can be reported within 30-days,  76.48% were reported  (or 734,138 crimes).

But the criminal background checks face another problem, according to this audit.


Even when local police and prosecutors do submit the arrest or conviction information, DPS is sometimes reporting a two-month backlog in entering the data into the database if it comes by mail or fax. Staffing and budget cuts are getting the blame.

How to Stimulate the Economy and Create Jobs

With the recent recession and all the hard times of many American's, there has been a lot of movement by local states and the EEOC to ban credit checks for employment purposes.   Statistically, credit checks are not used very often for the mass number of background checks performed.   In fact, only 13% of  companies  perform credit checks on all their applicants.  

Also, there is no correlating data that suggest a bad credit score is an indication that someone will steal from the company.   That being said, I am still shocked that the average person doesn't realize that employee theft is a serious problem.
Consider statistics from the American Society of Employers:

• Businesses lose 20% of every dollar to employee theft.
• 20% of employees are aware of fraud at their companies (including theft of office items, false claims of hours worked, and inflated expense accounts).
• The average time it takes for an employer to catch a fraud scheme is 18 months.
• 55% of perpetrators are managers.
• 44% of workers say their companies could do more to reduce fraud.
• The U.S. Retail Industry loses $53.6 Billion a year due to employee theft.
• 60% of companies have staff trained to deal with fraud and ethics issues (up from 30% in 2000).

The U.S. Chamber of Commerce estimates that 75% of all employees steal at least once, and that half of these steal again and again. The Chamber also reports that one of every three business failures are the direct result of employee theft.

Also, 30% of businesses fail due to employee theft.   This is a serious problem for our economy and jobs. In fact, most small companies do not perform  employment screening.  Background Screening could stop a lot of loses and improve business and hiring. Imagine if those 30% of businesses continued to operate and hired employees. 

Massachusetts Bars Employers from Requesting Criminal History from Applicants

Massachusetts becomes the second state to bar both the public and private employers from requesting applicants to disclose criminal history information.    Effective November 4, 2010, both public and private employers from requesting that job applicants disclose criminal history information on an initial job application (also known as “Ban the Box” legislation). 

Massachusetts follows Hawaii, who in 1998 was the first state to prohibit employers from inquiring about an individuals criminal record.  However, unlike Hawaii, Massachusetts  does not prohibit an employer from questioning an applicant about a criminal record during the interview process or requesting a pre-offer background screening;(though inquiries about arrests that do not lead to a conviction or inquiries about certain misdemeanors such as public drunkenness, simple assault, minor traffic violations and disturbing the peace are prohibited).

The Massachusetts law does provide for two important exceptions to the prohibition requesting applicants disclose criminal records on job applications.  An employer may request criminal record information on a job application if:  (1)  the applicant is applying for a position for which a federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction of certain criminal offenses; or (2) the employer is subject to an obligation under a federal or state regulation to not employ a person who has been convicted of certain offenses.The employer can still perform employment screening.

Should you have any questions about this legislation,you may contact  us at 770-649-8282 or email Aly.Sharp@s2verify.com