Background Checks and Ban the Box Legislation November 8, 2017
Presented By Uzo Nwonwu Littler, Kansas City UNwonwu@littler.com, 816.627.4446 Jason Plowman Littler, Kansas City JPlowman@littler.com, 816.627.4435 2
Agenda EEOC Position Ban the Box Ban the Box in Missouri and Kansas Interplay with FCRA 3
EEOC Position 4
The EEOC s View of Criminal Background Checks 2012 EEOC Guidance on Employer Use of Arrest and Conviction Records: Disparate impact on minorities Can lead to unfairness and hamper rehabilitation of convicts Arrest is not proof. Many arrests lead to dismissals Records are stale 5
Arrest Records Arrest Records Employers cannot rely on the mere fact of any arrest Employers may rely on underlying conduct suggesting unfitness Example: Elementary school fires assistant principal after he is arrested and charged with sexual abuse based on allegations by several students. 6
Conviction Records Conviction Records To satisfy the standard, the policy must effectively link specific criminal conduct, and its dangers, with the particular job Employer must perform a Targeted Screen or Individualized Assessment 7
Individualized Assessment The facts or circumstances surrounding the offense or conduct nature and gravity of offense The number of offenses for which the individual was convicted 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 8
Individualized Assessment The 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 Whether the individual is bonded under a federal, state or local bonding program 9
Job Relatedness Risk of repeating offense in job Vulnerability of employer to repeat conduct by the employee Nature of job presents temptation Ex. Conviction for embezzlement by prospective CFO 10
Recordkeeping Maintain and have available for inspection information showing the impact selection procedures have upon employment opportunities of persons categorized by race, sex, or ethnic group May use samples for large number of applicants 11
Key Takeaways Do not screen out candidates based on any criminal record Do individually assess applicants and employees by reviewing the specific jobs and criminal history record in accordance with company policy When asking questions about criminal records, limit inquiries to records job related/consistent with business necessity Make inquiries of criminal record post application (e.g. ban the box approach) Train managers, hiring officials, and decision-makers Maintain confidentiality of criminal records 12
Ban the Box Sweeps the Nation 13
Ban the Box Laws Focus is for employers to choose their best candidates based on job skills and qualifications, not past convictions. Pressure to conduct background checks only after a conditional offer of employment is extended. 14
15 CA OR WA MT ID NV AZ UT CO NM TX WY ND SD NE KS OK MN IA MO AR LA MS IL WI MI IN OH KY TN AL NC GA FL SC VA WV PA NY VT NH ME MA RI CT MD DE NJ PUERTO RICO ALASKA HAWAII CA OR WA MT ID NV AZ UT CO NM TX WY ND SD NE KS OK MN IA AR LA MS IL WI MI OH KY TN AL NC GA FL SC VA WV PA NY VT NH ME MA RI CT MD DE NJ PUERTO RICO ALASKA HAWAII Washington, D.C. MO IN Hawaii Massachusetts Minnesota Rhode Island Illinois New Jersey District of Columbia Oregon Connecticut Vermont Ban The Box Laws
Hawaii Massachusetts Minnesota Rhode Island Illinois New Jersey District of Columbia Oregon Connecticut Vermont --------------- Columbia, MO CA Philadelphia, PA Buffalo & Rochester, NY Seattle, WA Baltimore, MD Montgomery County and Prince George s County (MD) San Francisco, CA Chicago, IL New York City Portland, OR Austin, TX Los Angeles, CA Seattle WA Portland OR San Francisco NV Los Angeles ID UT AZ MT WY CO NM ND SD NE KS TX OK MN IA MO MO Columbia AR LA WI IL MS IN MI Chicago IN KY TN AL GA OH Rochester Buffalo PA Philadelphia MD WV VA NC SC ME VT NY NH MA RI CT New York City NJ DE Baltimore Washington, D.C. Austin FL Ban The Box Laws ALASKA HAWAII PUERTO RICO
Ban the Box Not Just Job Applications Specific state, local law ex-offender protections Workplace posting obligations Noticeobligations Policy requirements Sequencing restrictions Inquiry restrictions Source restrictions Job-relatedness requirements 17
When Can You Ask? After initial screening of applicants Connecticut, Chicago, Illinois, Massachusetts, Minnesota, Seattle, Vermont At the first interview Buffalo, Rhode Island After the first interview Montgomery County, New Jersey, Oregon, Prince George s County, Rochester, San Francisco After the conditional offer Austin, Baltimore, Columbia, District of Columbia, Hawaii, New York City, Philadelphia, Portland Not limited to the job application Also must defer running a background check
Substantive Limitations Defined Look-Back Periods Philadelphia and San Francisco 7 years Off-limits Information in San Francisco Arrests not leading to a conviction, except for unresolved arrests Participation in/completion of a diversion or a deferral of judgment program Dismissed, expunged or voided convictions Juvenile records Offenses other than a felony or misdemeanor (e.g., infractions) Off-limits Information in Portland (OR) Arrests not leading to conviction, except unresolved arrests/pending charges Voided or expunged records Charges that have been resolved through the completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm to a person 19
Substantive Limitations Hawaii Must bear a rational relationship New York and Ban the Box Law in New York City Need a direct relationship between the conviction and the position or granting job poses an unreasonable risk to property or safety or welfare of specific individuals or the general public Pennsylvania Must bear a relationship to the position sought 20
Individualized Review Austin, Texas District of Columbia Los Angeles, California Massachusetts (icori) Montgomery and Prince George s Counties, Maryland New York and New York City Philadelphia, Pennsylvania Portland, Oregon San Francisco, California Seattle, Washington 21
Notice Posting Requirements and Job Postings Notice Postings San Francisco Los Angeles Philadelphia Job Postings requirements vary Cannot state or imply that criminal history is an automatic disqualifier Can identify specific offenses that will disqualify an applicant from a particular position Must state that employer will consider qualified applicants with criminal history 22
Other Ban the Box Notice Requirements Pre-adverse action notice: Montgomery County, New York City, Philadelphia, Prince George s County, San Francisco, Seattle Intent to take adverse action based on criminal history Provide criminal history report, if any (except Seattle) Specify the criminal history New York City Employer must perform the 8-factor analysis required by NY Corrections Law Article 23-A Must provide the Fair Chance Act Notice issued by the NYC Commission on Human Rights that documents the analysis The Notice must include the reasons for the adverse employment decision 23
Death of Criminal History Questions? Should your organization ask applicants about their criminal history? Necessary? Unnecessary risk? When should we ask the question? What can and should we ask? 24
The Multi-State Application Problem How can multi-state employers continue to use a single employment application? Include jurisdictional notices warning applicants that they are not required to respond Problem? Philadelphia and New York City o Separate applications? San Francisco takes a contrary view o Can advise San Francisco applicants to skip the question 25
Other Ban the Box Considerations Independent Contractors FCRA courts are split Ban the box laws jurisdictions are split Coverage Some BTB laws apply only to jobs or employers located in the ban-the-box jurisdiction Many BTB laws do not specify their geographic scope 26
Ban the Box in Missouri and Kansas 27
Missouri Ban the Box Public employees: City of Kansas City April 5, 2013 State employees ban the box order April 11, 2016 Jackson County employees November 7, 2016 Private employers: Columbia, Missouri applies to employers doing business in the City Cannot inquire, question, or otherwise seek information on an employment application regarding arrests, charges, or conviction Cannot make any inquiries or otherwise seek information until after a conditional offer of employment has been extended Consider Missouri Case Net 28
Kansas Ban the Box Public employees in Kansas City, Kansas November 2014 Proposed legislation HB 2115 Proposed on January 19, 2017 by the Kansas Association of Criminal Defense Lawyers Currently with the House Committee on Judiciary Key provisions Job advertisement should note there will be a background check No background check unless there is a good faith determination that the position is of such sensitivity to warrant one or if required by federal or state law No conviction questions on application No consideration of conviction history until after a conditional offer (individualized assessment) Recordkeeping requirements 29
Interplay with FCRA 30
Purpose of FCRA Fundamentally, FCRA regulates the scope and flow of the exchange of consumer information Regulates public records - including credit reports and criminal records Does not regulate purely in-house investigations, such as reference checks 31
FCRA Overview Step One: Disclosure and Authorization Step Two: Pre-Adverse Action Notice Step Three: Wait a Reasonable Period of Time Step Four: Adverse Action Notice 32
Informed Consent Must obtain from the applicant or employee written authorization to run the search before conducting the background check The FCRA disclosure form should remain a stand-alone document (i.e., a separate document from the rest of the employment application and any state-required notices) The authorization form must provide a copy of the Summary of Rights under the FCRA Recently changed; use the 2013 version 33
Pre-Adverse Action Generally, if adverse action is intended, an employer must provide the applicant with an advance copy of the consumer report and the Summary of Rights document Purpose is to allow consumer the opportunity to dispute with the CRA any inaccurate or incomplete information (e.g., a sealed or expunged conviction record) 34
Adverse Action Notice Must be submitted with the Notice of Rights After providing informed consent, obtaining the consumer report, and providing the Pre-Adverse Action Notice Adverse Action Notice CRA contact information Statement the CRA is not the decision-maker and cannot explain the reason for the decision Right to obtain a free copy of the report Right to dispute with the CRA information in the report 35
Interplay with FCRA Pre-Adverse Action Notice BTB notice requirement applies regardless of whether employer obtains a consumer report FCRA does not require employers to specify the criminal history on which they relied NYC and Seattle require employer to hold job open FCRA does not Waiting Periods FCRA Reasonable Period BTB Laws two to 10 days depending on the jurisdiction 36
Final Adverse Action Notice Several BTB jurisdictions require that employers send a final adverse action notice Austin, Chicago (small employers only), Montgomery County, Portland, Prince George s County, Portland, San Francisco Content of the notice Prince George s and Montgomery Counties and SF: offer is withdrawn Austin, Chicago, Portland: basis of the decision Interplay with FCRA final adverse action notice BTB notice requirement applies regardless of whether employer obtains a consumer report No FCRA preemption Employers can supplement their FCRA final adverse action notice 37
What is the Potential Liability for Failing to Comply with the FCRA? Penalties based upon the severity of the non-compliance. Can be incurred for failure to comply with any requirement with respect to any consumer (i.e., applicant or employee) If negligent (i.e., without taking reasonable care): Any actual damages sustained by the consumer as a result of the failure to comply; and Attorney s fees and costs If willful (or with reckless disregard): Any actual damages sustained by the consumer as a result of the failure to comply, or damages of not less than $100 nor more than $1,000; Punitive damages; and Attorney s fees and costs Criminal penalties for more serious violations 38
Class Litigation Spike in class action filings against employers and CRAs FCRA disclosure and authorization forms FCRA adverse action notices State equivalents Several multi-million dollar settlements in nationwide class actions 39
Overall Recommendations If application does not currently ask for arrest/conviction information, do not start now; continue background check process on the backside EEOC position: asking questions on application leads most to stop reading application rather than interviewing, and subsequently learning of conviction If using background checks, consider looking at what effect they have on the composition of the workforce and compliance with BTB and FCRA Maintain records 40
Questions? 41
Thank You! This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel. 42