Employment Rights and Criminal Records. May 9, 2018

Transcription

1 Employment Rights and Criminal Records May 9, 2018

2 Employment Law: The Basics Employment at Will - The general rule is that the employer or the employee can terminate the relationship for any reason and at any time - This means that employers can hire and fire people for unfair reasons, or no reason at all

3 Employment at will does not apply to: Workers covered by union contracts; Civil service workers; and Workers with contracts (very rare) In these cases, termination usually limited to cases where employer has just cause, and employee may be entitled to a hearing.

4 Exceptions to Employment at Will Principle Employment discrimination laws (federal, state or local) Other statutes, e.g. Family and Medical Leave Act Retaliation for making an employment law or benefit claim

5 Barriers to Employment: Criminal Records HUGE PROBLEM! The single largest category of employment cases that CLS sees. Some jobs are barred by law. Others, employers won t hire a person with a criminal record. Employers have easy access to records.

6 Barriers to Employment Some laws prohibit employers from hiring people with certain convictions Includes occupational licenses Check out criminal record restrictions before training for a new field

7 Strategies for Helping Ex-Offenders Get Employment Assert legal rights against being rejected for (or fired from) jobs Job search techniques answering questions, bonding, etc. Impact Litigation/advocacy Clean up the record, if possible Representation before licensing boards 7

8 Legalities: Ex-Offenders Do Have Employment Rights Employment at will does not always carry the day! Relevant laws: 1) Title VII (discrimination law) 2) State law on considering criminal records 3) Philadelphia Fair Hiring Ordinance 4) Fair Credit Reporting Act 8

9 TITLE VII Title VII prohibits racial discrimination, including policies/practices that have a disparate impact. More African Americans and Hispanics have criminal records than others. Therefore, employers must have a business necessity for the policies. 9

10 TITLE VII Factors to be Considered EEOC says employers must consider: 1) Nature and gravity of offenses; 2) Time that has passed since the conviction and/or sentence; 3) Nature of the job. 10

11 TITLE VII General Rules Employers cannot have blanket policies requiring clean criminal records. Arrests without convictions usually cannot be considered. Employers are supposed to look into situation, not rely on fact of arrest. 11

12 TITLE VII Enforcement File a race discrimination charge at the EEOC within 300 days Lawsuit can be filed if EEOC charge fails, but very difficult and costly. Don t underestimate value of just discussing law with employers. 12

13 State and Municipal Remedies Your Mileage May Vary

14 Pennsylvania Remedies Pennsylvania Human Relations Act Criminal History Records Information Act

15 Philadelphia Remedies Fair Criminal Records Screening Standards (AKA Ban the Box) --Employers may not ask about criminal records until after a conditional offer of employment --Employers may not consider arrests --Employers may not consider convictions that are older than 7 years (unless mandated or authorized by law or regulation)

16 State Law Enforcing Legal Rights No EEOC jurisdiction; only lawsuit. CLS writes demand letters. Consider bringing state law to employer s attention. Representation before licensing boards 16

17 Systemic Reform Legislative activity Advocacy with local and/or state agencies Challenges to state laws

18 FCRA - Employers Applies only when employers use private background check companies. Duties on employers Must get written authorization Must provide a copy five days before action taken. Must notify person that action was taken based on the report. 18

19 FCRA Background Check Companies May not report arrests that are more than 7 years old (no time limit on convictions) Must use reasonable procedures to insure maximum possible accuracy Must re-investigate if person challenges record. 19

20 Other Strategies to Help Ex-Offenders Find Jobs Talk with them about how to answer applications (read the question carefully, answer it accurately, and explain if helpful). Job development to focus on employers who will hire ex-offenders (or avoid those who can t or won t). 20

21 How Should One Deal with Criminal Record on Applications? Read questions carefully and don t give more information than required. Be prepared to talk about record even if application doesn t require disclosure. Consequences to lying on application (e.g. provides separate grounds for termination not protected by the law, can lead to denial of unemployment compensation).