What Employers Need to Know About Conducting Criminal Background Checks in Massachusetts

March 19, 2012

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Littler Mendelson, the nation’s largest employment and labor law firm, has an important update for Massachusetts employers conducting background checks:

Massachusetts Employers Face New Obligations When Conducting Background Checks Involving Criminal History Records

Effective May 4, 2012, the Massachusetts Criminal Offender Record Information (CORI) Reform Act (the Act), which was enacted in August 2010 with the controversial “ban the box” legislation, will significantly change the way employers access, use, and maintain information obtained through the Commonwealth’s CORI system. The Act will allow all employers access to a new online records system, but also imposes obligations on employers that acquire criminal history information from private sources, such as consumer reporting agencies (background report vendors such as FYI Screening). Employers should review their hiring and background check policies now to determine whether any updates are necessary.

Related article:

2010 CORI Reform Explained: How the law is changing, and when. (pdf)

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3 Myths About Employing People With Criminal Histories

June 1, 2011

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Stephanie R. Thomas, hosts “The Proactive Employer Podcast“, which is a weekly broadcast dedicated to EEO compliance and employment litigation risk management.

Last week she reported on the myths about employing people with criminal histories.

Here’s a recap of the podcast:

Each year, more than 700,000 people are released from federal and state prisons, and another 9 million cycle through local jails. Federal agencies are funding reentry efforts in communities all around the country, and the Obama administration is working across agencies to coordinate and advance efforts through the Federal Reentry Council.

Part of the reentry process is finding employment.

In this installment of The Proactive Employer Podcast, Stephanie talks about what the Federal Reentry Council is doing to assist with employment efforts. She talks about three common myths regarding employment of individuals with criminal backgrounds and she also covers common questions regarding employee background screening.

THE MYTHS

MYTH #1 : People with criminal records are automatically barred from employment.

MYTH #2: Businesses and employers have no way to protect themselves from potential property and monetary losses should an individual they hire prove to be dishonest.

  • FACT: Through the Federal Bonding Program (FBP), funded and administered by the U.S. Department of Labor (DOL), fidelity insurance bonds are available to indemnify employers for loss of money or property sustained through the dishonest acts of their employees (i.e., theft, forgery, larceny, and embezzlement).
  • Get the Myth Buster fact sheet (PDF).

MYTH #3: The Federal Government’s hiring policies prohibit employment of people with criminal records.

Need help in sorting out the facts from myths about employee background checks? Give us a call at 1-800-809-2419. We’d love to hear from you.

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People With Criminal Records “Need Not Apply”

March 23, 2011

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Hopefully your company doesn’t have this kind of policy…

(Source: yubanet.com) According to the National Employment Law Project (NELP) more than one in four U.S. adults — roughly 65 million people –have an arrest or conviction that shows up in a routine criminal background check, and a new report from NELP finds that these Americans are facing unprecedented barriers to employment. With the rapidly expanding use of background checks, employers are routinely, and often illegally, excluding all job applicants who have criminal records from consideration, no matter how minor or dated their offenses.

The new report highlights the widespread and illegal use of blanket no-hire policies by providing numerous examples of online job ads posted on Craigslist, including some by major corporations, that effectively bar significant portions of the U.S. population from work opportunities. Because of their blunt impact and extreme overreach, these blanket no-hire policies have become the subject of increasing litigation, attracting heightened scrutiny from the courts and concerned policymakers. At the same time, 92 percent of employers conduct criminal background checks, according to a 2010 Society for Human Resources Management survey.

The NELP report, entitled “65 Million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment,” surveys online job ads posted on Craigslist in five major cities—San Francisco, Los Angeles, Chicago, New York, and Atlanta. The survey found numerous examples in which extreme requirements precluded consideration of anyone with a criminal record, in clear violation of federal civil rights law. Major companies, such as Domino’s Pizza, the Omni Hotel, and Adecco USA, were just some of the employers that listed entry-level jobs on Craigslist—ranging from warehouse workers to delivery drivers to sales clerks—that unambiguously shut the door on applicants with criminal records.

Read the rest of the article here.

Download the NELP report:  “65 Million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment” (PDF)

How Do You Become a Model Employer and Comply with the Law?

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(Source: NELP’s guide to best practices for employers who conduct criminal background checks)

Step 1
Identify positions that require a background check under state or federal law, or that require a background check due to the sensitivity of the job. You are not required by law to perform a background check for most positions.

Step 2
Do not request criminal history information on the initial job application. Inquire into an individual’s criminal history only after the applicant has been selected as a final candidate.
Many cities, states, and even some federal agencies delay background checks because “it is generally more practical and cost-effective.” (U.S. Office of Personnel Management Regulations.)

Step 3
If you conduct a background check, be sure to comply with the legal requirements of the Fair Credit Reporting Act.

First, give notice to the applicant and get the worker’s consent. If the background report includes criminal history information, provide a copy to the applicant and allow the applicant to contest or explain the information included before making an employment decision.

See the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) and the Federal Trade Commission (www.ftc.gov) for your obligations. Your state may have additional requirements.

Step 4
Consider only job-related and recent convictions when making an employment decision. Consideration of arrest information likely violates federal civil rights law and may violate state law.

See the EEOC Policy Guidance on the Consideration of Arrest Records (www.eeoc.gov/policy/docs/arrest_records.html).

Step 5
Be sure to comply with the legal requirements of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e).

Deny employment only if the conviction is job-related and doing so is consistent with “business necessity.”

Be sure to consider the following factors:

1. The nature or gravity of the offense or offenses;
2. The bearing, if any, of the offense(s) on any specific responsibilities of the job or position;
3. The time that has elapsed since the offense;
4. The age of the applicant or employee at the time of the offense;
5. Any evidence of rehabilitation.

See the EEOC Policy Statement on the Issue of Conviction Records (www.eeoc.gov/policy/docs/convict1.html).

Step 6
Let the community know that you are a model employer committed to considering all qualified candidates and building a diverse workforce.

Reach out to the local Chambers of Commerce, Workforce Investment Boards and other local partners to publicize your model practices.

Download NELP’s guide to best practices for employers who conduct criminal background checks (PDF).

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Is It Legal For An Employer To Charge A Potential Employee For A Background Check?

March 16, 2011

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I recently checked out Quora which is getting a lot of buzz lately (with mixed reviews). What is Quora you ask? The best way to describe it is it’s a Q&A social networking site. I’m not sure if Quora is going to be social media’s newest “it” platform, but I did find some questions on employee background screening that you might find helpful.

Here’s one question that I recently answered:

Q – Is it legal for an employer to charge a potential employee for a background check? If a business requires employees to be screened for past criminal behavior, is it acceptable to charge potential employees for the cost of the screening?

A- There is no federal law that prohibits employers charging a potential employee for a background check but the following states (and Washington, DC) have laws that limit this practice:

  • California, Minnesota, Washington,DC – the employee cannot be required to pay for a background check as a condition of employment.
  • Vermont – limits an employer charging a potential employee for a background check if they are using specific sources.
  • Kansas – employers can’t require potential employees to obtain their own records and give them to the employer.

What questions do you have about background checks?

Photo credit: Valerie Everett

Top 10 Employee Background Screening Posts For 2010

December 17, 2010

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Social screening candidates, increasingly complex compliance issues for employers and workplace violence articles were the most widely-read posts from our blog in 2010.  Stay tuned and we’ll keep you informed of the latest trends, best practices and legal compliance issues for employee background screening in 2011.

Below you’ll find our most widely-read posts of the year:

  1. Q&A On Using Social Networks For Background Screening
  2. Social Media And Employee Background Screening
  3. 8 Tips On How Employers Can Minimize Risk Of Workplace Violence
  4. Is Your Employee Background Screening Policy Up To Date?
  5. Everything You Need To Know About Form I-9 Compliance
  6. Legislative Alert – Maryland HB175 Seeks to Limit Use of Credit Reports by Employers
  7. Hundreds Of Felons Admitted To Ohio Schools
  8. How To Reduce The Risk Of Workplace Violence
  9. Over 100 Employee Background Screening Resources
  10. 10 Things You Probably Don’t Want To Post On Facebook If You’re Looking For A Job

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The Challenges of Background Check Compliance for Employers

October 19, 2010

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Littler Mendelson’s Privacy & Data Protection Practice Group just published an excellent article highlighting the challenges of background check compliance for employers:

New California Law Illustrates Challenges of Background Check Compliance for Employers

“Background checks seem to be a hot topic in state legislatures these days. In the past six months, for example, several states — including Illinois, Massachusetts, Oregon, and most recently California — have enacted laws bearing upon the process of checking the backgrounds of job applicants and employees. Under the new California law (pdf), effective January 1, 2012, background check authorizations must include the “Internet Web site address . . . where the consumer may find information about the investigative reporting agency’s privacy practices.” This seemingly trivial change is endemic to the challenges that employers confront in the area of background check compliance.”

Read more

Smart, Compliant Hiring Decisions Made Easy

FYI Screening can help your company navigate the compliance maze. You’ll feel confident that you’re using the most up-to-date, accurate information available to ensure a safe and compliant environment for your workforce and customers.

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Is Your Employee Background Screening Policy Up To Date?

April 8, 2010

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Employment law firm Outten & Golden LLP just released this news:

Accenture Sued for Discrimination Over Background Checks

Accenture, one of the largest management consulting firms in the world, conducts background checks that discriminate against African Americans and Latinos, a class action lawsuit filed in New York federal court today alleges.

The lawsuit, filed on behalf of Roberto J. Arroyo, of Morristown, N.J., accuses Accenture of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even where the criminal history has no bearing on the individual’s fitness or ability to perform the job.

According to the Complaint, “Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.”

Employers Must Revisit Their Hiring Policies to Incorporate Ex-Offenders into the Workplace

Melissa E. Pierre-Louis, an associate at Outten & Golden LLP, offers excellent advice to employers in an article published in an American Bar Association Labor Employment Law Flash in February 2010:

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance regarding the steps employers must take to avoid liability. The EEOC advises employers to undertake three steps in determining whether to screen out a candidate with a criminal conviction.

  1. The employer must consider the nature and gravity of the offense.
  2. The employer must consider the length of time that has passed since the conviction.
  3. The employer must consider the relationship of the conviction to the particular duties and responsibilities of the job in question.

The massive rise in incarceration rates in the past few decades, coupled with efforts by advocates and the Obama administration to help offenders “reenter” society, means that employers will likely see a significant increase in the number of ex-offenders in their applicant pool in the coming years.

Employers who continue to apply blanket bans on hiring ex-offenders or who fail to implement hiring criteria that take into account the nature of the offense and its relationship to the job face significant exposure to charges of race discrimination.

“Simply put, now is the time for employers to align their policies with state and federal requirements.”

Proper planning, legal review, and prompt implementation are critical to avoid liability. As a first step, employers should revisit their hiring policies in light of EEOC guidance. In addition, employers should become aware of the protections afforded to ex-offenders by state law. For example, New York State and City law offer greater protections to applicants with criminal convictions. They prohibit employers from turning down an applicant because of his criminal conviction unless the employer undertakes a case-by-cases evaluation of each applicant and can show that there is a “direct relationship” between the applicant’s prior offense and the employment sought or that employment of the applicant would pose an unreasonable risk to property or the public.

FYI Screening – Smart, Compliant Hiring Decisions Made Easy

You can feel confident that you’re using the most up-to-date, accurate information available to ensure a safe and compliant environment for your workforce and customers. Our smarter background screening technology and practices allow companies to quickly become more competitive, compliant & efficient.

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Another State Restricts Use of Credit Reports in Employee Background Screening

March 31, 2010

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On March 29, 2010, Oregon Governor Kulongoski signed legislation (S.B. 1045) that specifically prohibits employers from using credit history in making hiring, discharge, promotion, and compensation decisions unless the applicant or employee is given advanced written notice and the credit history is substantially job-related. Although the proposed legislation was to be effective July 1, 2010, the Governor declared the legislation effective immediately.

Oregon joins Washington and Hawaii as one of three states that have effectively banned workplace credit checks. There is also pending legislation in Illinois that recently passed the House of Representatives, which would impose similar restrictions. This trend underscores the importance of employers being aware of state law restrictions pertaining to credit and background checks,  particularly in multistate businesses.

There are four exceptions to the Oregon law:

  1. Bank and credit union employers
  2. Employers that are required by state and federal law to use credit histories for employment purposes
  3. Public safety officer employers
  4. Employers that can demonstrate that credit information is “substantially job-related” and that provide written disclosure of the reasons for the use of the credit check

The statute does not further define what “substantially job-related” means, nor has the Oregon Bureau of Labor and Industries (BOLI) adopted rules to inform employers on how it will be applied.

In the absence of clear rules or guidance from BOLI, employers that intend to continue utilizing credit histories after March 29th, 2010, should proceed with caution and consult legal counsel to determine whether they fit into one of the statute’s exceptions. If they do not fit within an exception, employers should develop alternatives to current practices to avoid penalties and civil liability. A violation of the new law is an unlawful employment practice, and an aggrieved individual can file a complaint with BOLI and a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney’s fees.

Compliance steps for Oregon Employers:

  • Do not run credit reports for employees or applicants, unless your company fits into one of the four exceptions.
  • Seek counsel to determine if credit information is “substantially job-related.”
  • You can still run other types of background checks (criminal record searches, employment and education verifications, etc.) as you did before this law.

Sources:  Seyfarth Shaw, Davis Wright Tremaine LLP

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NH Courts to Close As Furloughs Hit Judicial System

March 16, 2010

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In order to meet a budget shortfall of 3.1 million dollars, the New Hampshire Judicial Branch announced that all New Hampshire courts and judicial branch administrative offices will be closed on the following days:

  • Friday April 2, 2010
  • Friday April 30, 2010
  • Friday May 28, 2010

Read more about the court furloughs (pdf).

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New Mexico Job Seekers Don’t Have to Disclose Criminal Records

March 9, 2010

Here is an interesting trend that we will be watching.

The New York Times reports:

New Mexico became the second state to ”ban the box” with Gov. Bill Richardson’s signature on a law prohibiting employment applications for government agencies from asking job seekers if they’d been convicted of a crime.

The measure was signed Monday and covers job applications for state, county or local government but not private business.

The legislation doesn’t prohibit employers from asking the question once they’re face-to-face with applicants and doesn’t stop them from doing background checks.

It passed the New Mexico Senate 35-4 and the House 54-14.

The National Conference of State Legislatures and the National Employment Law Project say Minnesota passed similar legislation in 2009, becoming the first state to outlaw the conviction question.

Source

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