Background Checks: Title Goes Here. Best Practices & Legal Compliance. Presented By: Stephen R. Woods Gustavo A. Suarez

Transcription

1 Background Checks: Title Goes Here Best Practices & Legal Compliance Presented By: Stephen R. Woods Gustavo A. Suarez

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3 Background Check Process 1. Determining Whether and When a Background Check Can Be Requested 2. Requesting a Background Check 3. Considering and Using Background Check Information 4. Communicating Results

4 ❶ Determining Whether and When a Background Check Can Be Requested

5 Can We Even Run a Background Check? Federal Law EEOC s Guidance states that background checks must be job-related and consistent with business necessity For each position, consider how criminal convictions link to the essential functions of the position in question

6 Can We Even Run a Background Check? Federal Law Consider: Job title starting place Nature of job duties (e.g., data entry, lifting boxes) Circumstances in which job is performed (e.g., level of supervision, interaction with vulnerable adults) Job s environment (e.g., in warehouse, private home, etc.)

7 Can We Even Run a Background Check? State Law Credit 10 states have restrictions on credit checks by private employers

8 States Restricting Credit Checks California Colorado Connecticut Hawaii Illinois Maryland Nevada Oregon Vermont Washington

9 Can We Even Run a Background Check? State Law Criminal a few states have restrictions on private employers: a) Timing of running background checks and/or b) Any questions about criminal history (aka Ban the Box restrictions)

10 States Restricting Timing of Background Checks Hawaii only after conditional offer of employment Minnesota Only after applicant has been selected for an interview or If no interview, only after conditional offer of employment Utah Only after conditional offer of employment Utah restriction is N/A if the D&A/consent form is provided to all applicants applying for the position, not just the final few candidates or the final candidate on whom you want to run a background check Illinois (effective January 1, 2015) Only after applicant has been determined qualified for position and notified he/she has been selected for interview If no interview, only after conditional offer of employment New Jersey (effective March 1, 2015) only after first interview Cities = Seattle, Newark, Buffalo, Philadelphia, San Francisco & Baltimore

11 States With Ban the Box Restrictions Can inquire: Hawaii only after conditional offer of employment Minnesota After applicant has been selected for an interview or If no interview, only after conditional offer of employment Illinois (effective January 1, 2015) After applicant has been determined qualified for position and notified he/she has been selected for interview. If no interview, only after conditional offer of employment

12 States With Ban the Box Restrictions Can t inquire: Massachusetts on employment application or employment application follow-up Rhode Island on employment application Can inquire at first interview and thereafter New Jersey (effective March 1, 2015) during initial employment application process Can inquire after first interview. Cities = Seattle, Newark, Buffalo, Philadelphia, San Francisco, Baltimore, and Rochester

13 Pending Legislation D.C. recently passed background check legislation that is awaiting final approval.

14 ❷ Requesting Background Checks

15 Laws Governing Requesting Background Checks Federal Fair Credit Reporting Act State Mini-FCRAs

16 Application of State Background Check Laws Which State Law Applies? If applicant/employee is a resident of the state AND/OR If applicant/employee is applying to a location in the state

17 Requirements for Obtaining a Consumer Report Disclosure and Authorization Forms

18 Disclosure & Authorization Forms 1. Describe background check information being requested and/or reviewed 2. Do not include extraneous information

19 Disclosure & Authorization Forms Common Extraneous Information Release of liability sentence(s) If you don t complete this form, you will not be able to complete the application. Have you ever been convicted of a felony? I authorize courts and other entities to release information about me to Employer.

20 Disclosure & Authorization Forms (cont d) 1. Describe background check information being requested and/or reviewed 2. Do not include extraneous information 3. Don t name the consumer reporting agency, except in a few specific states 4. Check the Box for CA, MN, and OK Not Ban the Box 5. Disclosure separate from Authorization 6. Include state-required notices separately (and CA should be separate from all).

21 Disclosure & Authorization Forms State-Specific Information Required California Colorado Connecticut Maryland Massachusetts Minnesota Montana New Jersey New York Oklahoma Oregon Vermont Washington

22 ❸ Considering and Using Background Check Information

23 Targeted Screening Process Strongly recommended in EEOC Guidance Takes into account the following 3 factors: (1) The nature and gravity of the offense or conduct; (2) The time that has passed since the offense, conduct, and/or completion of the sentence; and (3) The nature of the job held or sought Then, Individualized Assessment

24 Factor #1: Nature and Gravity of Offense Assessed with reference to the harm caused by the crime (e.g., theft causes property loss) Legal elements may be instructive (e.g., felony theft involves deception, threat, or intimidation) Not surprisingly, misdemeanors treated less severely than felonies

25 Factor #2: Time Passed Since Offense Relevant information includes studies demonstrating how much the risk of recidivism declines over a specified time

26 Factor #2: Time Passed Since Offense EEOC cites various studies regarding recidivism According to one study, there may be a point of redemption where an individual s risk of reoffending is no greater than the general public Other studies put the point of redemption at 6-15 years from the date of the arrest No consensus on age of relevant criminal records

27 Factor #3: Nature of Job Held or Sought Criminal conviction should link to the essential functions of the position in question

28 Factor #3: Nature of Job Held or Sought Job title starting place Nature of job duties (e.g., data entry, lifting boxes) Circumstances in which job is performed (e.g., level of supervision, interaction with vulnerable adults) Job s environment (e.g., in warehouse, private home, etc.)

29 State Law Substantially related Significantly related Various factors for consideration

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34 ❹ Communicating Results

35 Screening Out Employees & Contemplating Taking Adverse Action Individualized assessment Title VII background information No matter whether obtained information from CRA or otherwise (e.g., from Criminal applicant/employee self-report) Pre-Adverse Action Letter & Reasonable Waiting Period Federal FCRA/state mini-fcras All types of background information, if obtain information from CRA Blue = Title VII; Red = federal FCRA, state mini-fcras

36 After receiving negative information... Pre-Adverse Action Letter Reasonable Waiting Period Both are part of Individualized Assessment process described below.

37 States That Require State Summaries Pre-Adverse Action Letter Arkansas Colorado Delaware Maryland Massachusetts New Jersey North Carolina North Dakota Oklahoma Rhode Island Washington West Virginia

38 Pre-Adverse Action Letters Emerging Trend CRAs that apply an employer s predetermined standards (i.e., use a matrix) If CRA automatically sends PAAL at least one court has found that to be a no-no under federal FCRA New York AG agreement with 4 large CRAs March 2014: CRAs won t do that (violation of NY mini-fcra) IF CRA initially screens out applicant and forwards to employer but employer makes decision to send PAAL, likely o.k.

39 Reasonable Waiting Period To allow applicant or employee to dispute report (under the FCRA) To conduct Individualized Assessment (under the EEOC s new Guidance) Must wait reasonable time (under the FCRA) No statutory indication of what is reasonable 5 business days

40 Individualized Assessment EEOC Guidance: For any individuals screened out by this targeted screening process, employer s policy should then provide an opportunity for an individualized assessment

41 Individualized Assessment Process Notice to individual that s/he has been screened out because of criminal conviction Opportunity to demonstrate that the exclusion should not be applied due to his/her particular circumstance Consideration by the employer as to whether the additional information provided by the individual Warrants an exception to the exclusion and Shows that the policy as applied is not job related and consistent with business necessity.

42 Individualized Assessment Factors Individual s showing that he/she was not correctly identified in the criminal record or that the record is otherwise inaccurate Facts or circumstances surrounding offense or conduct Number of offenses for which individual was convicted Older age at the time of conviction, or release from prison Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct

43 Individualized Assessment Factors Length and consistency of employment history before and after the offense or conduct Rehabilitation efforts, e.g., education/training Employment or character references and any other information regarding fitness for the particular position and Whether individual is bonded under a federal, state, or local bonding program

44 Individualized Assessment If individual does not respond... employer may make employment decision without the information One example in Guidance includes employer placing the employee on an unpaid administrative leave pending an investigation Implication that unpaid leaves are o.k.?

45 After receiving negative information (cont.) Adverse action notification letter Name, address, and telephone number of the consumer reporting agency (CRA) that furnished the report; Applicant or employee may obtain a free copy of the consumer report from the CRA within 60 days of the adverse action ; CRA did not make the decision to take the adverse action and is unable to provide the individual the specific reasons why the adverse action was taken ; and Individual may dispute with the CRA the accuracy or completeness of any information in a consumer report.

46 Miscellaneous

47 Employment Applications EEOC Guidance recommends that employers not ask about convictions on job applications This is the only time the Guidance uses the term recommends

48 Arrests Guidance repeats EEOC s long-held position that an arrest, by itself, is never job-related and consistent with business necessity Arrest does not establish that criminal conduct has occurred Individuals are presumed innocent until proven guilty Many arrests do not result in convictions

49 EEOC Guidance and Federal Law Compliance with federal laws and regulations is a defense to a charge of discrimination E.g., federal government employees, federal security clearances

50 EEOC Guidance and State Law Compliance with state and local laws does not shield employers from violating Title VII Most states regulate occupations that involve responsibility for vulnerable citizens, children, and the elderly All 50 states and D.C. require criminal background checks for certain occupations, such as nurses, elder caregivers, daycare providers, and school teachers

51 EEOC Guidance & Client Requirements Compliance with client requirements unlikely to shield employers from violating Title VII

52 FCRA Penalties Actual damages sustained by applicant or employee as a result of the offense Statutory damages up to $1,000 per violation, if willful Punitive damages, if willful Attorneys fees

53 Title VII Penalties Back pay Front pay Punitive damages (capped), if willful

54 Takeaways Get separate, signed, legally-compliant Disclosure and Authorization forms on all applicants and employees Don t forget about applicable state law Disclosure & Authorization Employer use restrictions Draft background check screening out policy/matrix with objective criteria consistent with 3 factors 1. Nature of the offense/conviction 2. Time since conviction 3. Requirements and duties of position Allow for individualized assessment after screening out

55 Takeaways Red light, green light criminal background assessments should be eliminated Red light over EEOC Guidance FCRA issues adverse action Client requirements (e.g., no employees with felonies ) and state law requirements (e.g., for nurses, teachers, etc.) will not shield employers from Title VII liability

56 Questions

57 Background Checks: Title Goes Here Best Practices & Legal Compliance Presented By: Stephen R. Woods Gustavo A. Suarez