… a diversion or a deferral of judgment program;
A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative;
A Conviction or any other determination or adjudication in the juvenile justice or information regarding a matter considered in or processed through the juvenile justice system;
A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;
Information pertaining to an offense other than …
… a diversion or a deferral of judgment program;
For quite some time now, I’ve felt the organizations that support the formerly incarcerated have done a disservice to ex-offenders when it comes to their stance on employment background checks. Rather than educating ex-offenders about the reality of criminal background checks and how to prepare for the tough questions from employers that are sure to come and educating employers about the benefits of hiring ex-offenders, organizations such as The National Employment Law Project (NELP) and the National Consumer Law Center (NCLC) have spent far too much time focusing on what they can do to eliminate the practice altogether.
In doing so, they continually point to statistics that they should know are misleading. The best example of this is NELP’s assertion that the 65 million Americans with criminal records are unemployable due to their convictions. If this were true, employers wouldn’t be able to hire anyone. EmployeeScreenIQ data shows that less than 10% of those with criminal records are actually eliminated from employment when a background check reveals a conviction. Based on our experience, the number of unemployed ex-offenders is widely exaggerated.
I don’t pretend to ignore the fact that some employers have enacted unfair hiring criteria when it comes to those with criminal records, but it is important to acknowledge the public safety and risk management benefits society receives as a result of this practice.
Here are my top 3 strategies to really promote re-entry into the workplace
1. They need to spend time educating ex-offenders about what they can do to prepare themselves for the process. U.S. News and World Report columnist, Jada Graves recently wrote what I consider to be the best career advice geared towards those with criminal records I have seen. It doesn’t sugar coat the issue and provides candidates a simple road map to follow. It encourages candidates to set reasonable expectations for the jobs that might be out there, cautions them not to lie about their past and suggests that they study their consumer rights. If you haven’t read this article yet, I would encourage you to do so. To me, this should be required reading for all ex-offenders and the organizations that support them and should be used to develop training and assistance programs.
2. Rather than focus on misleading information such as the example I showed above, run with the issue that allows you to take the high ground: Accuracy. Every time I read Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses, a study conducted by the NCLC I find myself applauding their efforts to highlight their concerns over inaccurate background checks, while at the same time cringing over their gross over-generalizations about the fact that all background screening companies knowingly report unverified data. The NCLC highlights instances of reporting false positives, sealed or expunged information, multiple ledgers for the same offense, etc. Unfortunately, there are some companies that routinely engage in these practices but they are the exception, not the rule. I strongly support their efforts to hold those offenders accountable for failing to adopt reasonable procedures to avoid inaccurate information. That’s a real problem and is unfair to anyone who has fallen victim to inaccurate data; ex-offender or not. But let’s not paint the picture that all background screening companies have no regard for accuracy.
3. Develop studies that highlight the benefits of hiring ex-offenders. To be sure, not everyone with a criminal record will qualify for every job, but show employers what they might gain by taking a chance. Looking at retention rates, recidivism, tax credits, etc. If groups like NELP and NCLC would work hand in hand with the employer community, they would accomplish so much more for their constituents than they do by waging war on background checks.
By taking these steps, I think that ex-offender advocacy stands a much better chance of making a real impact on the lives of those with criminal records and being a reliable voice in the eyes of the public and the media.
The company known for their signature character, Mickey Mouse, is defending a class action claim based on questions about its background screening policies. The suit against Disney was filed in the Superior Court of California on November 1, 2013, and the complaint alleges that Disney’s policy for notifying applicants about background checks has violated the Fair Credit Reporting Act (FCRA).
The case is part of a bigger trend—the exponential rise in FCRA-based class action claims. The suits have been on the rise for a few reasons. The widespread adoption of employment background checks by companies over the past 10-15 years has justifiably raised awareness about the screening process. FCRA litigation is a “new” area that the trial bar seems to have only recently discovered. With statutory damages, attorney’s fees, punitive damages and costs as well as actual damages, these class actions are much more lucrative than individual plaintiff cases. Disney is not the only large scale employer to be singled out—other household names like Kmart, Domino’s, Swift Trucking, Dillard’s and Rite Aid have all been called out in FCRA-related allegations.
For those of you interested in keeping up with the latest in compliance for pre-employment background screening and the laws that affect your use of employee background checks, follow our publication, “BTW: Your Guide to Staying Out of Hot Water.” This compliance resource has been created by our VP of Compliance and General Counsel, Angela Preston and is a must-read for human resources and security professionals.
In the July issue of By The Way we bring you an update on ban-the-box in the state of Indiana, another EEOC discrimination case, except instead of Dollar General & BMW this story focuses on transportation giant, J.B. Hunt. And lastly, Angela shares a “top 5” list of 5 Sticky Legal Situations Employers Should Avoid. Angela offers best practices in the five areas that employers are often confronted with in employment background checks–you won’t want to miss this month’s featured story.
Listen as Angela talks about the 5 “sticky” situations she features in her latest article and provides imperative information for employers who want to remain compliant in their hiring practices:
Take a look at BTW here!
Since last week was a holiday week, I’m sure many were too busy participating in Fourth of July festivities to jump online and read our blog posts. Luckily for you, this is a recap to let you know exactly what you missed! Angela shared two posts last week, “Second Chance” in Indiana Part Deux: Law Restricts Use of Sealed and Expunged Criminal Records and J.B. Hunt Revises Its Policy After EEOC Race Discrimination Investigation. Nick shared an interesting post regarding court delays with criminal records, explaining why there are delays, and not only for holidays, but during other times as well. For more information, read Are We There Yet? Court Delays Slow Background Screening for Employers. What else is going on with EmployeeScreenIQ? One thing to keep your eyes open for is a post on the official release of the next Quick Takes video on Wednesday!
If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here. The latest changes to the Indiana “Second Chance” law go into effect today, July 1, 2013, were brought about by Indiana House Enrolled Act No. 1482 (the “Act”), and signed into law by Governor Mike Pence in May 2013. Read More
Transportation giant J.B. Hunt Transport, Inc. has entered into a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), over charges of racial discrimination based on a criminal background check. In a statement issued by the Commission, the EEOC claims that J.B. Hunt discriminated against an African-American job candidate who was denied a truck driver position at a J.B. Hunt facility in San Bernardino in 2009. Read More
Everyone’s favorite employment background checks are the ones which sail through the process with no hitches. No criminal records or any other adverse information to verify. And for the majority of employee background checks, that continues to be the norm. Read More
If this headline sounds like déjà vu all over again, we have blogged on this law several times, most recently here. The latest changes to the Indiana “Second Chance” law went into effect on July 1, 2013, and were brought about by Indiana House Enrolled Act No. 1482 (the “Act”), and signed into law by Governor Mike Pence in May 2013. The new law applies to both Indiana-based employers as well as employers who hire workers in the State of Indiana. In addition to outlining the conditions and process by which ex-offenders can request the expungement or sealing of records, the law also has a direct impact on which criminal records employers can and cannot consider in the background screening process. Here are some highlights:
Section 10 of the Act makes it unlawful for any person to refuse to employ, or to otherwise discriminate against, any person because of a conviction or arrest record expunged or sealed under the law. Violation of this section is a Class C infraction and can lead to a contempt order as well as injunctive relief.
Any inquiry into an applicant’s criminal past on a job application must seek such information only in terms that exclude expunged convictions or arrests. The statute suggests the following wording: “Have you ever been arrested for or convicted of a crime that has not been expunged by a court?”
We often discuss the challenges of ex-felons going back to work and the problems they face when making this transition. From issues like ban the box to a company’s compliance in their use of criminal records in hiring decisions, there’s a never ending list of challenges that arise. One of these topics includes expunging criminal records, so that even if an employer conducts a background check, an applicant’s criminal record will not be found.
In Canada, a job candidate could simply submit an application and if accepted, their criminal record will be suspended. This action may allow those with a criminal history to find a job more quickly and will assist in making the hiring process much smoother. In Canada, they recently implemented legislation (in March of 2012) for this practice of record suspension, allowing ex-offenders a pardon for past crimes. According to Chris Heringer, a senior executive with Pardon Applications of Canada, a nationwide application firm, this is a great opportunity, particularly for those seeking employment:
“Employment seems to be one of the foremost reasons individuals decide to take this step…and it’s not just concern over finding a new job. Even those who are currently employed want to make sure their record does not come to light when opportunities for advancement are presented.”
For job candidates that made mistakes in the past and are ready to live a better lifestyle, this is a second chance. Without having to explain their past, the job search becomes hopeful as any previous record will no longer be available, even if a background check is done. According to the article, this pardon can also help “an individual’s ability to volunteer, further education, adopt a child, or even rent an apartment.”
The movement to “ban the box” shows no signs of slowing down. New Jersey, Rhode Island, North Carolina, Minnesota and Michigan are all considering new bills for statewide bans on the practice of asking applicants to check a box on their job application indicating whether they have a criminal conviction. We can hardly keep up with the influx of proposed new laws limiting criminal history in one way or another. Here is a run-down:
The most comprehensive and far-reaching proposal is in the State of New Jersey. On February 7, 2013, three New Jersey Senators introduced “The Opportunity to Compete Act,” (“OCA”) which would eliminate the check box that requires job applicants to disclose their criminal history and would also prohibit advertisements discouraging those with criminal records from applying. The bill is modeled after the recent ordinance that was passed in the city of Newark. The bill, as proposed, will significantly complicate the hiring process in the State of New Jersey.
Yesterday, EmployeeScreenIQ held our first webinar of 2013, “992 Heads are Better than One: Balancing Applicant Rights & What Employers Need to Know.” We unveiled the results of our 2013 Employment Screening Trends Survey, reporting the key findings of our report. In case you missed it, the webinar recording will be available soon, along with the survey report, so keep an eye on our blog posts for these releases. We recently posted a response to an article posted in the Wall Street Journal questioning the use of the EEOC’s new rules. Earlier this week, we wrote about a recent case against Target for unfair hiring practices. And lastly, we’ve posted a few times on the differences between background checks for firearms and employment background screening; this week we shared another component on the use of mental health records in background checks for firearms.
The hearing on the EEOC’s Guidance to Employers on Criminal Background Checks held by the U.S. Commission on Civil Rights continues to draw sharp responses by those opposed to the new rules. Today, the Wall Street Journal published an Op-Ed written by author James Bovard in which he cynically wonders whether it should be a federal crime for businesses not to hire those with criminal records. Read More
The NAACP and a Minnesota community group have filed claims with the Equal Employment Opportunity Commission (EEOC) alleging that Target Corporation’s use of employment background checks constitutes a discriminatory practice. The groups claims that Target denied job interviews to candidates with criminal records regardless of age, correlation to job responsibilities and even in cases of where convictions were expunged. Read More
Another large background screening company has agreed to pay a multimillion dollar settlement to end a class action alleging of violations of the Fair Credit Reporting Act (FCRA). We told you about another case resulting in a hefty settlement here. The latest in a series of unfortunate attacks on background screening practices is Henderson v. Verifications Incorporated, and the defendant, a background screening company, has agreed to pay $3.8M to settle a class action filed in federal court in the Eastern District of Virginia. I learned about the settlement from a recent post on the legal blog Law 360. The settlement includes an “incentive” payment of $3.75M and includes a big fat paycheck ($1.125M) for the plaintiff’s legal team, plus court costs and expenses. In my opinion the result is disappointing, with no real upside for anyone involved. Even if a company does everything right, they can still be sued. And in this case, nothing was actually “settled”.