Hiring Practices That Promote a Stronger Work Force and Community

Center for Community Alternatives

Program Goals: Big Picture: context of conducting criminal

background checks Discussion of negligent hiring claims Benefits of hiring person with conviction history Types of background checks and mistakes common

to them Relevant federal and state law Recommended “best practices” for interviewing and

conducting background checks

Part One

Why Conduct Criminal Background Checks?

Percentage of Employers Who Conduct Background Checks

The prevalence of criminal background checks is a new phenomenon

Society of Human Resource Managers (SHRM) surveys on percentage of employers conducting criminal background checks: 1996 – 51% of employers 2010 – 92% of employers

Reasons Employers Conduct Background Checks: Discussion

What are your concerns about hiring people with a criminal record?

What led to your organization’s decision to start running background checks?

What are the primary reasons that your organization conducts criminal background checks on job candidates?

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SHRM Survey – From Powerpoint available on SHRM websiteNote: n = 310. Percentages do not total to 100% as respondents were allowed multiple choices. Respondents were asked to select top two options.

Do Criminal Background Checks Enhance Workplace Safety?

2011 Richard Netter Conference, Cornell University, ILR School:

No research or evidence exists to suggest that hiring people with a criminal record contributes to workplace crime, violence, dishonesty, or theft

2005-2009 Bureau of Justice Statistics: Most workplace violence is committed by strangers,

not employees Co-workers (past or current employees) accounted for

only 14-16% of workplace violence; but no evidence these 14-16% had criminal histories

Workplaces are comparatively safe

Do Criminal Background Checks Predict Employee Attributes?

2011 Richard Netter Conference, Cornell University, ILR School:

No research showing or suggesting that a criminal record is positively or negatively associated with positive employee attributes

What Is a Negligent Hiring Claim?

Such claims are premised on the legal theory that employers can be held liable for hiring and placing an employee in a specific job when the employer knew or should have known that if placed in such a job, it was reasonably foreseeable that the employee would cause harm to others (co-workers or third-party members of the public).

Are Negligent Hiring Claims Common?

According to a survey by the National H.I.R.E. Network: Only 10% of all negligent hiring claims filed in

NY in 2003 involved employees with a past criminal conviction

Legal Protection from Negligent Hiring Claims

2009 Amendment to Human Rights Law § 296(15): “[T]here shall be a rebuttable presumption in favor of

excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee's past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee.”

Part Two

The Impact of Conducting Criminal Background Checks

Common Perceptions of People With a Criminal Record Common perception: a person with a criminal

record is prone to violence and aggressive behavior

Is this perception accurate?

Profile of Arrests in New York 2010 total of 584,558 arrests

73% misdemeanors 27% felonies

7% violent felonies Most people arrested for a crime are arrested

for a low-level, non-violent offense The prevalence of arrests for low-level, non-

violent crimes is a feature of “mass criminalization”

Increase in Number of People with a Felony Conviction, 1948-2010

Source: Shannon, Uggen, Thompson, Schnittker & Massoglia, 2011 GROWTH IN THE U.S. EX-FELON AND EX-PRISONER POPULATION, 1948 to 2010

Disparate Impact: All State and Federal Prisoners 2008

African American 38%

Hispanic

20%

White

34%

Source: BJS

Race and Conviction Histories: Impact on Employment Outcomes

Devah Pager and colleagues – two surveys (NYC and Milwaukee) which both produced 2 primary findings:

1) Having a criminal record has a significant impact on hiring outcomes, even for well-qualified and appealing candidates

2) This negative effect is substantially larger for African-Americans

Impact on Employment Outcomes, cont.

“As soon as they see my conviction, my work history, skills and experience go out the window.”

- Dory, who has over 10 years of work experience and a college degree, but because of a 2001 drug conviction still struggles to find employment

Part Three

Benefits of Hiring People with a Criminal Record

Financial Benefit: Work Opportunity Tax Credit

An employer can claim up to $2400 tax credit for hiring an applicant with a felony conviction within one year of the date of his conviction or release from incarceration

See U.S. Dept. of Labor, Work Opportunity Tax Credit

www.doleta.gov/business/incentives/opptax/

Financial Benefit: Federal Bonding Program Department of Labor offers a free fidelity

bonding program for “at risk” job applicants, including people with criminal records

The fidelity bonds indemnify employers for loss of money or property caused by an employee’s dishonesty or stealing (theft, forgery, larceny, and embezzlement are covered)

Financial Benefit: Federal Bonding Program, cont. The first 6 months are free, after which the employee

is deemed “bondable for life” through the Federal Bonding Program’s commercial bond (Travelers)

The bond insurance ranges from $5,000 to $25,000 Information is at:

www.bonds4jobs.comhighlights.html Elaine Kost is NY’s Bonding Services Coordinator:

(518) 485-2151, elaine.kost@labor.state.ny.us.

Workforce Benefits

What employers who regularly hire people with conviction histories have found:

No increase in workplace crime, fraud, or violence More racially and ethnically diverse work force Lower employee attrition rates More motivated and loyal employees Skilled workforce

Community Benefits:Enhanced Public Safety

“Stable employment helps ex-offenders stay out of the legal system. Focusing on that end is the right thing to do for these individuals, and it makes sense for local communities and our economy as a whole.”

- Hilda L. Solis, U.S. Secretary of Labor, 2010 press release

Community Benefits:Sustainable Economy

• Unemployment of individuals with criminal histories lowers overall employment rates

• 2 in 3 men were working/financial contributors before incarceration

- David Lopez, General Counsel, EEOC• Cannot sustain an economy in which almost ¼ of working age adults cannot obtain work- NELP, “65 Million Need Not Apply”

Part Four

Types of Criminal History Records

Types of Criminal History Records

“Rap” sheets Consumer reporting agencies Court generated records The Onondaga County Sheriff’s report (often

called the “CHAIRS report”)

“RAP” Sheets

Record of Arrests and Prosecutions Records maintained by federal and state

repositories 1) New York state repository

- Division of Criminal Justice Services (DCJS)

2) federal repository

- FBI

These records are fingerprint-based

DCJS and FBI Reports, cont.

The DCJS and FBI Records are Confidential;Access is Permitted Only By Statute

Criminal justice agencies Specified government agencies responsible

for occupational licensing (sealed information not disclosed)

Individual can obtain his or her own record (because it includes sealed information, it is not to be re-disclosed)

Office of Court Administration (OCA):Court Generated State-Wide Report

The New York State Office of Court Administration (OCA) provides a New York Statewide criminal history record search (CHRS) for a fee of $65.00. The search criteria is strictly based on exact match of Name and DOB (variations of Name or DOB are not reported.) The search results are public records relating to open/pending and convictions of criminal cases originating from County/Supreme, City, Town and Village courts of all 62 counties. Sealed records are not disclosed. Town & Village criminal disposition data is limited (see FAQ).

Commercial Background Check Companies

A Booming Business More than 600 commercial companies

(consumer reporting agencies) in the U.S. that produce criminal background checks

It is now a multi-billion dollar industry

Mistakes: A Common Occurrence

Why So Many Errors? Magnitude of U.S. criminal justice system Human frailties in the maze of our criminal

justice system

Mistakes Common to ALL Types of Criminal History Reports

Even Official Records Contain Mistakes

Lack of disposition Multiple charges for one arrest listed

separately Failure to honor a sealing or expungement

order Mistaken identity

CRA Reports: “The Wild West” of Employment Screening NCLC, April 2012 Report: Broken Records:

How Errors by Criminal Background Checking Companies Harm Workers and Businesses

Mismatch the subject of the report w/ another person

Reveal sealed or expunged information Omit disposition information Contain misleading information Mischaracterize the seriousness of the

offense

Correcting Mistakes

Often, a mistake can be corrected by obtaining information directly from the court: Certificate of disposition Sealing or expungement order

Part Five

Conducting Background Checks: The Law

The Various Laws Applicable to Conducting Background Checks

Federal Law: EEOC New York State Law: Article 23-A and Human

Rights Law Fair Credit Reporting Act (FCRA)

EEOC: Civil Rights Impact

“Employment discrimination against individuals with arrest and conviction records is an issue that had long been with us, but which in recent years has re-emerged as an important civil rights issue.”

- Former EEOC Commissioner Naomi Earp, November 2008 EEOC meeting

EEOC Policy Statement

EEOC Policy Statement on the Issue of Conviction Records Under the Civil Rights Act, Title VII (2/4/1987; updated 9/11/2006)

“An employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”

EEOC Policy Statement, cont.

“Consequently, the Commission has held and continues to hold that such a policy and practice is unlawful under Title VII in the absence of a justifying business necessity.”

EEOC Policy Statement, cont.

Employers must consider three factors in determining business necessity:

The nature and gravity of offense or offenses The time that has passed since the conviction

and/or completion of the sentence The nature of the job held or sought

New York Law: Public Safety and Basic Fairness

“Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”

- Former Governor Hugh Cary, signing legislation that makes it unlawful to

discriminate against job applicants with a criminal record

New York Law

Employers should be well-versed in these NY statutes:

Correction Law Article 23-A (Correction Law § § 750, 751, 752, 753, 754)

Human Rights Law § 296(15), and (16) General Business Law, Art. 25

Correction Law § 752: The Basic Rule

An employer cannot have a blanket policy against hiring anyone with a criminal record.

It is unfair discrimination to deny a person with a criminal history a job or license because of his or her conviction unless:

The conviction is directly related to the job in question, or

Hiring the person would create an unreasonable risk to property or the safety or general welfare of specific individuals or the general public

Correction Law § 750(3): Direct Relationship

Correction Law § 750(3): “‘Direct relationship’ means that the nature of

criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question.”

Correction Law § 753: Factors Employers Must Consider1. The State’s policy to encourage the employment of those with a criminal

record2. The specific duties and responsibilities related to the employment sought3. The bearing, if any, the person’s criminal offenses will have on his or her

fitness or ability to perform the job duties4. How long it has been since the person committed the crime of which he

or she was convicted5. The seriousness of the offense or offenses6. The age of the person at the time of the crime7. Any information the person provides on his or her behalf in regard to

rehabilitation and good conduct8. The employer’s legitimate interest in protecting property and

safeguarding the safety and welfare of others 9. Whether the individual has a Certificate of Rehabilitation (CRD or a

CGC)

Certificates of Rehabilitation

Two types: Certificate of Relief from Disabilities (CRD) Certificate of Good Conduct (CGC)

Establish a legal presumption of rehabilitation Remove presumptive barriers to employment

Correction Law § 754: Applicant’s Right to a Reason Correction Law §754:

At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within 30 days of a request, a written statement setting forth the reasons for such denial.

Correction Law § 755: Enforcement

Public Employers: An Article 78 proceeding

Private Employers: Division of Human Rights and possible lawsuit.

Employer’s Obligation to Provide a Copy of Article 23-A

When conducting a criminal background check, employers must provide the applicant a copy of Article 23-A:1) Once before the check is done; and

2) A second time if the check shows a criminal record

See Gen. Bus. Law § § 380-c(b)(2), 380-g(d).

Employer’s Obligation to Post a Copy of Article 23-A “Every employer shall post in his or her

establishment, in a place accessible to his or her employees and in a visually conspicuous manner, a copy of article twenty-three-A of the correction law and any regulations promulgated pursuant thereto relating to the licensure and employment of persons previously convicted of one or more criminal offenses.”

See Labor Law § 201-f.

Human Rights Law § 296: Unlawful Discriminatory Practices Subdivision (15): Failure to comply with

Article 23-A is an “an unlawful discriminatory practice”

Subdivision (16): It is an “unlawful discriminatory practice” for an employer to ask about or consider an arrest or conviction that has been sealed; further, job applicants are not required to disclose any arrest or conviction that has been sealed

What arrests and convictionsare sealed? An arrest that resulted in a disposition

favorable to the accused, such as a dismissal, a decision not to prosecute, a grand jury “no bill,” a not guilty verdict, etc.

An arrest that resulted in a conviction for a non-criminal offense (a violation)

An arrest that resulted in a Youthful Offender adjudication

A conditionally sealed drug-related conviction

Pending Arrests?

Arrests are not reliable evidence that a person committed a crime EEOC Guidelines, US Interagency Reentry

Council

Employers should be aware that an older arrest without a disposition may be “stale” – that is, it is not being prosecuted

Fair Credit Reporting Act:Duties of Employers Using CRA Reports

Advance notice to the applicant with a copy of Article 23-A

Signed authorization from the applicant Pre-adverse action notice, with copy of the

background check, FCRA summary of rights, and Article 23-A

An adequate opportunity to identify and correct misinformation

Fair Credit Reporting Act:Rights of the Job Applicant

Right to advance notice with copy of Article 23-A and FCRA summary of rights

Right to give consent Right to copy of the background check Right to opportunity to identify and correct

mistakes Right to be notified in advance of adverse

employment decision

Part Six

Best Practices

When is A Conviction No Longer Relevant?

The Issue It is well-established that the probability of re-

offending declines with clean time after a conviction, and after a period of time, the conviction is not predictive of anything

Determining this time period - and knowing when a conviction is no longer relevant – is a widely shared concern (U.S. Attorney general, EEOC, legal professionals and employers)

- Alfred Blumstein and Kiminori Nakamura,

2011 Netter Conference

When is a Conviction No Longer Relevant? cont.

We now have strong estimates of “redemption time” from a number of research teams

Foremost among them, the team of Blumstein and Nakamura found a “redemption time” of 4-7 years

Employment may shorten the time to redemption:“Employment is an inhibitor to recidivism.”

- Alfred Blumstein

When is a Conviction No Longer Relevant? cont.

First Best Practice Tip: To ensure that you do not consider information that is no longer relevant, do not ask about or consider convictions that have occurred more than 7 years ago (or, if the person was incarcerated, 7 years after release). Limit any background search to this 7 year period.

When to ask the Question: “Ban the Box” Practices

What is “Ban the Box”?- Defers inquiry about criminal record to later in the

hiring process- Removes questions about the applicant’s criminal

history from the initial employment application- Allows applicants with criminal records a fair chance

to be evaluated on their qualifications prior to disclosing criminal record

- To date, 6 states and over 30 municipalities have enacted some form of “ban the box” hiring practices

When to ask the Question: “Ban the Box”

Second Best Practice Tip: Defer asking questions about the applicant’s criminal record or conducting a criminal background check until after a conditional job offer has been made. If the background check discloses a conviction, provide the applicant an additional interview to discuss the conviction and subsequent rehabilitation.

The question to ask Once you ask about the applicant’s conviction

history, frame your question in manner that comports with Human Rights Law § 296(16), which provides that an applicant is not required to disclose an arrest or conviction that has been sealed

Prevent confusion by carefully framing a question that does not call for information the applicant is not required to disclose

The question to ask, cont.

Third Best Practice Tip: Include the following explanation/caveat about the question:

Answer “No” if your conviction:a) was sealed, expunged, reversed on appeal, or if your charge was dismissed;b) was for a violation, infraction, or other petty offense such as “disorderly conduct”;c) resulted in a youthful offender adjudication or juvenile delinquency finding; ord) if you withdrew your plea after completing a treatment program.

The Interview: The Importance of an Opportunity to Build Rapport

Some employers seemed uncertain about whether it was legally or socially appropriate to ask about prior convictions, and others seemed simply uncomfortable with the topic…

Employment prospects improve significantly for applicants who have a chance to interact with the hiring manager…

Personal contact … can help provide some signals as to the disposition of the applicant and can help the employer develop a “gut feeling” about whether the individual is likely to diverge from the stereotype of ex-con.

- Devah Pager, Bruce Western, Naomi Sugie (2009)

Toward Rapport Building: What to Discuss and How

Fourth Best Practice Tip: To interview an applicant about past criminal history: 1) consider the conviction charge, not the arrest charge; 2) let the factors in Correction Law § 753 dictate how much detail about the conviction you need to know; and 3) do not limit the discussion to the conviction, but instead discuss what the applicant has done since; encourage the applicant to discuss his/her rehabilitation and commitment to desisting from crime.

How to Consider the Factors in Correction Law § 753 The factors provide a practical framework by

which to consider the applicant’s conviction in light of the job sought

Considering the factors “is not a mechanical function and cannot be done by some mathematical formula” (NYS Hearing Officer)

Consider all of the factors in their totality

How to Consider the Factors in Correction Law § 753, cont.

Fifth Best Practice Tip: Remember that the factors in Correction Law § 753 provide a useful framework for considering the applicant’s criminal record in light of the job sought. Avoid simplistic mathematical formulas, but instead consider all of the factors in their totality.

The Process Matters: Allow the Applicant to Identify Mistakes Use the FCRA procedures to ensure that the

applicant has a chance to identify and correct mistakes: Inform the applicant that a background check

will be conducted; obtain applicant’s consent Provide the applicant a copy of the record

received Allow the applicant an opportunity and time to

identify and correct mistakes Honor documentation produced by the

applicant

The Process Matters, cont.

Sixth Best Practice Tip: Comply with and use the procedures set forth in the FCRA and NY Business and Labor Law; this is best way to ensure that your process for conducting and considering criminal background checks does not lead you to inadvertently engage in an illegal discriminatory practice. Doing so will also ensure that you do not needlessly decline to hire an otherwise qualified job applicant.

Discrepancy Between What is Disclosed by the Applicant & Background Check

There is a discrepancy between what the applicant discloses and what the background check reveals: is this necessarily proof that the applicant has lied?

Is it possible to correct all mistakes?

The answer to both questions is “No.” Why?

Discrepancy, cont.

Seventh Best Practice Six: Do not assume that a discrepancy between what the applicant and background check disclose means the applicant is lying; also do not assume that all mistakes can be easily corrected. Use an awareness about the realities of our criminal justice system and common sense to resolve discrepancies and to decide whether or not to believe an applicant who identifies a mistake that cannot be corrected.

Thoughts on What Background Check to Use For most employers, the choice is either the OCA

record or one of hundreds of private company records

There are pros and cons to both the OCA record and the various private company records

There is no one “best record” and all records have a problems (errors, misleading presentation, etc.); but there are things to look for in deciding upon a background check

Thoughts on What Background Check to Use

Eighth Best Practice Tip: In selecting background check company, look for: 1) use of humans to ferret out mistakes so record is not solely result of “data-mining;” 2) access to professional who can help you understand the legal terms on the record; and 3) transparent process for correcting mistakes.

The Importance of Making an Independent Decision For those employers who use a private

company, exercise your own judgment; it is illegal to defer to private company’s recommendation

Some companies offer as a service a “hire/do not hire” recommendation or “red/yellow/green” flags

This recommendation is based only on whatever conviction charges are disclosed on the background check

The Importance of Making an Independent Decision

Ninth Best Practice Tip: To fully comply with Article 23-A, make an individualized decision in accordance with the Correction Law § 753 factors; do not subscribe to any background check company service that makes a “hire/do not hire” recommendation.

Document

Tenth Best Practice Tip: Document your decision and how you considered the factors under Article 23-A so you obtain the protection from negligent hiring claims afforded employers under Human Rights Law § 296(15).