Best Practices & EEOC Guidance: A Critical Tool for Every Consumer Reporting Agency (CRA) to Understand

Transcription

1 Presents Best Practices & EEOC Guidance: A Critical Tool for Every Consumer Reporting Agency (CRA) to Understand Presented by Avant Resources

2 Best Practices & EEOC Guidance: A Critical Tool for Every Consumer Reporting Agency (CRA) to Understand Sponsored by ClearStar Academy / February 8, 2017 Presenters: Lester S. Rosen, Attorney at Law Founder & CEO Employment Screening Resources (ESR) Fred Giles, CPP Cisive, Inc. Lewis Maltby, Attorney at Law President of the National Workrights Institute

3 About the Speaker Lester S. Rosen, Attorney at Law, is founder and CEO of Employment Screening Resources (ESR), a nationwide background check firm accredited by the National Association of Professional Background Screeners (NAPBS ). He is a frequent speaker on due diligence and background screening issues. He is the author of The Safe Hiring Manual, the first comprehensive book on background screening and hiring. He has qualified and testified as an expert in court cases and has testified before the California Legislature. He was the chair of the steering committee that founded the NAPBS ( and served as the first co-chair. 3

4 About the Speaker Fred Giles, CPP, is Senior Vice President of Cisive's Strategic Initiatives. He has 30+ years of experience in loss prevention, public record retrieval, employment screening, corporate asset protection, and investigative interviewing. He is a founding member of the National Association of Professional Background Screeners (NAPBS), where he currently serves on the Background Screening Credentialing Council (BSCC) and the Finance Committee. He has also served on the Global Advisory Council, as past chair of the Government Relations Committee and is a Past Chair of the Association. Mr. Giles holds a BA from Syracuse University and has completed several postgraduate and in-service training courses including studies at the North Carolina Justice Academy. He is a licensed Private Investigator. 4

5 About the Speaker Lewis Maltby, Attorney at Law, is president of the National Workrights Institute (NWI). He has testified before Congress on the use of criminal records by employers and worked closely with the EEOC on its Guidance. Prior to founding NWI, he was executive vice president of Drexelbrook Controls Inc., a leading supplier of industrial safety systems, where his responsibilities included human resource management. Maltby graduated from the University of Pennsylvania (cum laude) in 1969 and received his J.D. in 1972 from Penn Law School. 5

6 Important Notice This webinar does NOT constitute legal advice and should not be relied upon as legal advice. It is for educational purposes only. We will take questions at the end. If we do not get to all questions, or if you would like to ask a private question, please craigc@clearstar.net 6

7 New 2012 EEOC Guidelines On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964: EEOC Q & A page on Guidance: Title VII applies to employers with 15 or more employees (but caution: threshold headcounts for application of federal statues can be tricky) 7

8 EEOC Stated Purpose Per EEOC, the updated guidance builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago and focuses on employment discrimination based on race and national origin. Per EEOC, statistics and studies show criminal records have a discriminatory impact on Blacks and Hispanics. Central thrust: Unlimited use of criminal records can result in a disparate impact. 8

9 EEOC Concerns are Here To Stay Despite any controversy over the EEOC Guidance, the Guidance is now over five years old. The underlying concept of the three part test (nature and gravity of the crime, nature of the job, and age of the conviction) has been in operation since Ban the Box and concerns over ex-offenders obtaining employment and accuracy of reports are firmly in the public conscious. BOTTOM LINE: The EEOC Guidance cannot be ignored! Your clients are concerned about these issues. 9

10 New Resource A group of national civil and workers rights organizations released a report in 2013 titled Best Practice Standards: The Proper Use of Criminal Records in Hiring. Addresses the use of criminal records of job applicants by employers during employment background checks. The complete report titled Best Practice Standards: The Proper Use of Criminal Records in Hiring is available at: Practices-Standards-The-Proper-Use-of- Criminal-Records-in-Hiring 10

11 Authors of the Best Practice Standards This best practices report was prepared by: The Lawyers Committee for Civil Rights Under Law National H.I.R.E. Network National Workrights Institute Two background screening firms consulted: Cisive Employment Screening Resources (ESR) Supported by: Department of Justice Has funded a series of conferences Held in Atlanta and Chicago with future dates in Los Angels and Houston Department of Labor EEOC 11

12 Best Practices are a Powerful Tool for Consumer Reporting Agencies (CRAs) The Best Practice tools: Adds value to the offerings of CRAs. Positions the CRA a as knowledgeable provider of professional services, and not merely a data vendor. Helps to overcame reluctance an employer may have to even doing screening because of the perceived legal risks. Gives tools to employers who are concerned with BOTH negligent hiring and being sued for discrimination. Helpful potentially to protect a CRA in the event the EEOC investigates an employer by demonstrating the CRA took steps to educate the employer on best practices and CRA not responsible for any discriminatory practices. Helps the screening industry by showing that CRA s promote best practices for EEOC compliance and is committed to helping everyone find appropriate employment. Provides best practices that CRAs can follow. 12

13 Another Practical Reason to Understand the Standards Standards are receiving wide circulation among employers. Major management law firms now advising employers to use these standards! Employers will be looking at these standards to set up screening programs AND select screening firms. Over 200 employers have signed the Fair Hiring pledge, a White House initiative, to afford more opportunity to people with records. Critical for a CRA to know what employers are being told about how to select and work with a CRA! 13

14 Summary of Recommendations 1 CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS 8 CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL SOURCE 2 CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION 9 GET CURRENT DISPOSITION OF ALL RELEVANT INFORMATION 3 CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK 10 PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA S REPORT 4 DO NOTASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS 11 ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTED AS A 5 USE A QUALIFIED CONSUMER REPORTING AGENCY (CRA) TO CONDUCT RECORD CHECKS 12 SINGLE ENTRY CONSIDER EVIDENCE OF REHABILITATION 6 THE CRA SHOULD REPORT ONLY CONVICTIONS THAT ARE RELEVANT AND 13 MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS RECENT 14 TRAIN HUMAN RESOURCES STAFF 7 REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER IDENTIFIER MATCH 15 HAVE A DIVERSITY PROGRAM 14

15 1. CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS The fact that someone has been charged with a crime should not disqualify them for a job if they were not convicted. However, an employer can consider pending cases. 15

16 2. CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION CONSIDER ONLY RELEVANT CONVICTIONS What risks are presented by the job? Unsupervised Access to Money Unsupervised Access to Vulnerable Populations Weapons/Use of Force Operating Motor Vehicles What offenses are relevant to the job? Example: A person who has been convicted of DUI may put the public at risk in a job that involves driving, but not in other jobs. 16

17 3a. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK The risk that someone who has been convicted of a crime will commit another crime decreases over time. The EEOC suggests employers consider the available evidence on recidivism before rejecting an applicant. Issue is the Look Back time. LOOKBACK PERIOD Risk of New Offense Decreases Over Time When is Risk Comparable to Applicants with No Record? Look at the Data Generally 3-8 years 17

18 3b. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK RELEVANT CONVICTIONS + LOOKBACK = RELEVANCE MATRIX You Don t Have to Get it Right There is No Right Answer It s the Process, Not the Answer 18

19 3c. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK RELEVANCE MATRICES REDUCE LIABILITY RISK FOR Employer CRA RATIONAL PROCESS IS BETTER THAN AD HOC DECISIONS EMPLOYER CAN T MISUSE INFORMATION IT DOESN T HAVE 19

20 4. DO NOT ASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS DON T ASK ABOUT CRIMINAL RECORD ON APPLICATION FORM Ban the Box: Delaying learning about an applicant s criminal record until the interview or later enables the employer to make more informed hiring decisions. 20

21 5. USE A QUALIFIED CONSUMER REPORTING AGENCY (CRA) TO CONDUCT RECORD CHECKS USE A QUALIFIED CRA All background check firms (consumer reporting agencies) are not equal. Employers should consider the quality of CRAs procedures and results and not decide which one to use based solely upon cost. Also consider NAPBS Accreditation. 21

22 6. THE CRA SHOULD REPORT ONLY CONVICTIONS THAT ARE RELEVANTAND RECENT ASK CRA TO REPORT ONLY CONVICTIONS ON MATRIX Employers should determine in advance the conviction that it considers relevant for specific jobs and the time period during which they are relevant. These determinations should be provided to the CRA with instructions to report only convictions that meet these. Some large employers are creating decision matrixes based upon job the seriousness, nature, and age of the offenses. 22

23 7. REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER IDENTIFIER MATCH In a country of over 300 million people, many people have the same first and last name. A conviction should only be reported to an employer when the full name (including middle name where available) and at least one other identifier such as SSN or DOB or matched. 23

24 8. CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL SOURCE Online databases are not always accurate or up to date. All information from such databases should be confirmed with the original source. 24

25 9. GET CURRENT DISPOSITION OF ALL RELEVANT INFORMATION All information obtained from any source should be updated to ensure that it is current. 25

26 10. PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA S REPORT Whether or not required to do so by FCRA, employers should provide applicants with a prompt and convenient method of challenging information in the CRA s report. 26

27 11. ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTEDAS A SINGLE ENTRY Reporting information relating to a single incident in different sections of a report can create the impression that multiple incidents took place. All information related to a single incident should be reported in a single entry. 27

28 12. CONSIDER EVIDENCE OF REHABILITATION People change over time. Applicants can be given opportunity to present evidence of rehabilitation (such as using the Individualized Assessment tool). 28

29 13. MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS Employees making hiring decisions regarding applicants with criminal records are in a difficult situation if applicant with a record commits another offense. 29

30 14. TRAIN HUMAN RESOURCES STAFF Hiring decisions regarding applicants with criminal records require an understanding of the practical steps an employer should take to comply with federal and state law on background checks and to comply with federal, state, and local anti-discrimination laws, without exposing the employer to unreasonable risks. 30

31 15. HAVE A DIVERSITY PROGRAM One of the benefits of making sound decisions regarding applicants with criminal records is a more diverse workforce. Having a diversity program helps an employer determine how well it is making such decisions. 31

32 Best Practices -- Summary 1 CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS 4 DO NOTASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS The fact that someone has been charged with a crime should not disqualify them for a job if they were not convicted. However, an employer can consider pending cases. 2 CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION A person who has been convicted of DUI may put the public at risk in a job that involves driving, but not in other jobs. 3 CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK The risk that someone who has been convicted of a crime will commit another crime decreases over time. The EEOC suggests an Employers consider the available evidence on recidivism before rejecting an applicant. Issue is the Look Back time. Ban the Box--Delaying learning about an applicant s criminal record until the interview or later enables the employer to make more informed hiring decisions. 5 USE A QUALIFIED CONSUMER REPORTING AGENCY (CRA) TO CONDUCT RECORD CHECKS All background firms (consumer reporting agencies)s are not equal. Employers should consider the quality of CRAs procedures and results and not decide which one to use based solely upon cost. Also consider NAPBS Accreditation. 32

33 Best Practices (Continued) 6 THE CRA SHOULD REPORT ONLY CONVICTIONS THAT ARE RELEVANT AND RECENT Employers should determine in advance the conviction that it considers relevant for specific jobs and the time period during which they are relevant. These determinations should be provided to the CRA with instructions to report only convictions that meet these. Some large employers are creating decision matrixes based upon job the seriousness, nature and age of the offenses. 7 REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER IDENTIFIER MATCH In a country of over 300 million people, many people have the same first and last name. A conviction should only be reported to an employer when the full name (including middle name where available) and at least one other identifier such as SSN or DOB or matched. 8 CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL SOURCE Online databases are not always accurate or up to date. All information from such databases should be confirmed with the original source. 9 GET CURRENT DISPOSITION OF ALL RELEVANT INFORMATION All information obtained from any source should be updated to ensure that it is current. 10 PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA S REPORT Whether or not required to do so by FCRA, employers should provide applicants with a prompt and convenient method of challenging information in the CRA s report. 33

34 Best Practices (Continued) 11 ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTED AS A SINGLE ENTRY Reporting information relating to a single incident in different sections of a report can create the impression that multiple incidents took place. All information related to a single incident should be reported in a single entry. 14 TRAIN HUMAN RESOURCES STAFF Hiring decisions regarding applicants with criminal records require an understanding of the practical steps an employer should take to comply with federal and state law on background checks and to comply with federal, state and local antidiscrimination laws, without exposing the employer to unreasonable risks. 12 CONSIDER EVIDENCE OF REHABILITATION 15 HAVE A DIVERSITY PROGRAM People change over time. An applicant be given the opportunity to present evidence of rehabilitation (such as using the Individualized Assessment tool). 13 MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS One of the benefits of making sound decisions regarding applicants with criminal records is a more diverse workforce. Having a diversity program helps an employer determine how well it is making such decisions. Employees making hiring decisions regarding applicants with criminal records are in a difficult situation if applicant with a record commits another offense. 34

35 Looking Into The Crystal Ball What does the future hold? Significance of a Right to Sue letter. 35

36 The Bottom Line Change is always a burden, but these additional requirements can be effectively managed. Even with increased regulations, employers must still do background checks to ensure that new hires are qualified, capable, and free from unacceptable risk. The Best Practice Standards can be a powerful tool for background screeners. 36

37 Questions & Answers We invite you to enter questions in your control panel during the presentation. We will field as many of them as we can after the presentation. Any questions not addressed while we are on the air will be answered by . 37

38 Thank You for Attending Lester Rosen Employment Screening Resources (ESR) Fred Giles Cisive, Inc. Lewis Maltby National Workrights Institute Tel:

39 If you have any follow up questions, 39