Criminal Background Checks

Transcription

1 Criminal Background Checks Sonia Lee, Director of Affiliate Financial Services Habitat for Humanity International We build strength, stability and self-reliance through shelter.

2 Today s Goal Gain a basic understanding of the fair housing legal issues surrounding criminal background checks and how to create a policy and procedure for these checks at your affiliate.

3 Agenda Understanding criminal background check rules Understanding demographics of those incarcerated Balancing need and risk HUD and Habitat guidance Understanding background checks Creating policy and procedure for your affiliate Questions and Answers

4 Fair Housing Act Protects aggrieved persons from anyone who engages in or is responsible for a discriminatory housing practice Involves a dwelling Selling, renting or repairing Discrimination on the basis of a protected class Race Sex Disability (physical & mental) National origin Religion Familial status

5 Two Theories of Proof Discriminatory Treatment Disparate Impact Steering steering a consumer to or away from a certain neighborhood Inaccessible mortgage for applicants Only take applications online Single people are ineligible Must know someone to get in Are there others?

6 Disparate Impact Regulator / Plaintiff has to show defendant has a facially neutral policy, practice, or guideline uniformly applied substantially disparate impact on a protected class Once regulator / plaintiff establishes those factors, defendant can still avoid liability for discrimination if it shows the policy, practice, or guideline is necessary no less restrictive alternative is available

7 Disparate Impact Very controversial for a long time In 2016, two things happened that mean that disparate impact theory was probably going to survive: Supreme Court explicitly upheld it Inclusive Communities Project Department of Housing & Urban Development published final rule recognizing it

8 Why this is Important Because disparate impact is the theory people are using to challenge housing providers across the country who are refusing to rent or offer mortgages to people with criminal convictions Disparate impact because of the demographics of who is incarcerated Incarceration rate of African-Americans is almost 7x that of white men Chance of going to prison: 1 in 3 for African-American men 1 in 6 for Hispanic men 1 in 17 for white men

9 National Re-Entry Rates Re-entry population is disproportionately people of color African- Americans Percentage of United States Population Percentage of Prison and Jail Populations 13% 37% Hispanics 17% 22%

10 Magnitude of the Re-entry Problem Large increase in incarceration in recent decades 1970 to 2007: prison population increased sevenfold 30% of the U.S. adult population has a criminal record (including arrests and convictions) Now, have a very large re-entry population As of 2014, over 680,000 prisoners were being released from prison each year Roughly 95% of inmates will eventually be released

11 Housing and Recidivism Rates A lot of people are affected by rules that restrict housing for those with criminal records Stable housing can reduce recidivism rates 30% of all released prisoners are re-arrested in the first few months of release 67.5% of prisoners released are re-arrested within 3 years (increase from 62.5% in 1983) Each time one moves after release from prison increases chance of re-arrest by 25%

12 Criminal Record Bans In the last several decades, housing providers have made it very difficult for anyone coming out of prison to find housing Providers have put bans in place that prevent anyone with a criminal record from living in their apartment complex ( blanket ban )

13 HUD Guidance In April 2016, HUD issued guidance on the issue for housing For HUD programs Public and Indian Housing - Notice PIH November 2, FAQS For the Fair Housing Act generally

14 HUD Guidance African-Americans and Hispanics are arrested, convicted, and incarcerated at rates that are disproportionate to their share of the population, making decisions based on criminal records may have a disparate impact on those groups

15 Balancing Need and Risk Affiliates need to take care in making policy Weigh the need of the applicant without sacrificing safety of the affiliate, community and property Habitat needs to make room for those who have a criminal record and have rehabilitated Habitat needs to ensure safety of our communities without locking out those with criminal records A good policy will allow you to do both objectively *Remember arrest records cannot be used to deny

16 Habitat Guidance-Sex Offender Checks Policy 19-Sex Offender Registry Checks Requires affiliates to run checks on: Potential homeowners Board members Staff members Key volunteers Definition: consistent contact with vulnerable populations Or, repeat volunteers who volunteer more than 8 hours/month

17 Habitat Guidance-Sex Offender Checks Affiliate must have written policy that addresses: 1. How it will conduct the sex offender registry check 2. How it will use the information to make decisions 3. How it will communicate denial Affiliates must consistently apply these policies and procedures is link to database to check registry.

18 Habitat Guidance-Sex Offender Checks Notice disclose to applicant(s) that affiliate will pull sex offender report and information found may be used in the decision. The applicant must sign a release for the report to be pulled. REQUIRED if using a third party to conduct search If affiliate does it, no notice is required, but best practice (HFHI s application provides this notice and acts as a release) Discovery of an Offense Points System to rank level of risk No automatic disqualification Provide an individualized inquiry to understand the issue

19 Sex Offender Point System Example

20 Habitat Guidance-Criminal Background REQUIRED for all affiliate Qualified Loan Originators must have a board-adopted policy for QLO checks and all others If a Criminal Background Check is required for applicants a board-adopted policy must be in place A release is required as per FCRA to pull a consumer report Disclosure and Release single document disclose to applicant that a criminal history will be requested and information may be used to determine eligibility. Applicant(s) must sign giving authorization. Adherence to FCRA adverse action notice is mandatory

21 How to: Criminal Background Check Resources Law Enforcement and Correction Agency Records (free) Court Records (free) Third Party Background Screening Business (fee for service) Must Provide Notice Prior to Obtaining Background Check! Discovery of an Offense Points System to rank level of risk No automatic disqualification Provide an individualized inquiry to understand the issue

22 How to: Individualized Inquiry Determine how offense relates to position (staff, volunteer, board) What risk does the offense pose to the community and/or property (applicant) Consider several factors including: Nature, duties and responsibilities of position Nature of the conviction and whether children were involved Time elapsed since the offense Extent to which the offense may affect the person s fitness or ability to perform the duties or responsibilities of the position Other factors decided by the board of directors Inquire about the offense

23 Criminal Background Check- Point System

24 Notice: Adverse Action Provide Homeowner Applicant Adverse Action Notice must include where info was obtained Provide Potential Employee or Volunteer, or Board Member Pre-Adverse Action Letter A copy of the report and, A description in writing of rights reasonable amount of time to remedy (7 days) Then Final Adverse Action Letter

25 Habitat Guidance-OFAC Check OFAC: Office of Foreign Asset Controls check to determine whether an individual is a Specially Designated National (SDN) which is a person who has been deemed a terrorist, international narcotics trafficker or a support of such activities. Checks are conducted at the US Treasury website or by third party.

26 Policy Considerations No policy is a risk process becomes subjective All policy must be consistently applied What individuals at the affiliate need a criminal background check? What source will be used for background checks? What are the criteria for acceptance with a criminal record? Who handles notices and tracks them? Retention of this information state and federal requirements?

27 FAQ-Background Checks What adverse action letter reason for denial? Who at the affiliate is privy to the knowledge of an offense on their record? Board? QLO? Staff? Is it okay to ask the applicant questions about what comes back on the report so they can explain? Can we have a policy that says any arrest or offense found is an automatic disqualifier? Is this policy really necessary? Why do we need it?

28 Thank you! Sonia Lee Disclaimer: This material is for informational purposes only. I am not a lawyer and this should not be considered legal advice. You should seek appropriate counsel to obtain advice for your own situation. We build strength, stability and self-reliance through shelter.