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The Assault on Criminal-Background Checks

The Assault on Criminal-Background Checks. Presented by: Aloysius Hogan, Of Counsel & Registered Lobbyist Jackson Lewis LLP Cell: 202-957-9400 Email: HoganA@jacksonlewis.com to Alarm Industry Communications Committee Meeting Key Bridge Marriott in Arlington, Virginia September 8, 2011.

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The Assault on Criminal-Background Checks

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  1. The Assault on Criminal-Background Checks Presented by: Aloysius Hogan, Of Counsel & Registered Lobbyist Jackson Lewis LLP Cell: 202-957-9400 Email: HoganA@jacksonlewis.com to Alarm Industry Communications Committee Meeting Key Bridge Marriott in Arlington, Virginia September 8, 2011

  2. THE ISSUE Should employers be able to do criminal-background checks on job applicants?

  3. THE ISSUE Disambiguation: Do not confuse the separate issue of access to the FBI database with the EEOC-style assaults on background checking.

  4. WHY IMPORTANT WHY IMPORTANT: Criminal-background checks on job applicants are common and increasingly used by employers to try to • Protect their employees, their customers, and the public at-large; • To minimize exposure to potential legal liability; and • To protect their assets.

  5. WHY IMPORTANT • In Aug. 2004, SHRM reported 61% of HR professionals find inaccuracies in resumes after carrying out background checks.

  6. WHY IMPORTANT • In April 2006, New York Times reported on a study conducted by ResumeDoctor.com that found 43% of resumes had one or more "significant inaccuracies," while 13% had two or more.

  7. WHY IMPORTANT 67% of U.S. job applicants’ résumés contain material misrepresentations. :

  8. WHY IMPORTANT • Reliable criminal-background checks can be a critically important safeguard.

  9. HOW PREVALENT ARE BACKGROUND CHECKS? • The Government Accountability Office reports the Consumer Data Industry Association 2003 statistic: The three major Credit-Reporting Agencies provide approximately two billion reports annually in the marketplace. • Additionally, millions of criminal-background checks are performed each year.

  10. HOW PREVALENT ARE BACKGROUND CHECKS? • A member survey conducted in 2003 by the Society for Human Resource Management revealed that 80% of its organizations conduct criminal-background checks, up from 51% in a 1996 survey (and likely even higher today).

  11. COST OF NEGLIGENT HIRING • Association of Certified Fraud Examiners estimate in 2006 report that typically 5% of revenues are lost to fraud, meaning that $735 billion/year is lost to internal fraud. • Small businesses are the most vulnerable, accounting for a whopping 80 percent of all internal fraud cases.  • Employee-committed acts are the most common and most expensive fraud type, constituting >50% of all reported cases. 

  12. CRITICS OF CRIMINAL-BACKGROUND CHECKS Some criminal-justice-reform and civil-liberties advocates vehemently support maximizing opportunities for criminals (ex-offenders): • To be rehabilitated; and • To re-enter main-stream society as normal citizens….

  13. CRITICS OF CRIMINAL-BACKGROUND CHECKS … But at what cost?

  14. CRITICS OF CRIMINAL-BACKGROUND CHECKS • … To society? • … To employers? • … To employees? • … To victims? • … To high at-risk and vulnerable populations (e.g. children, the disabled, and the elderly)?

  15. CRITICS OF CRIMINAL-BACKGROUND CHECKS CRITICS OF CRIMINAL-BACKGROUND CHECKS: • Feel that employers use criminal-background checks to “discriminate” against convicted felons and impede their re-integration into society.

  16. CRITICS OF CRIMINAL-BACKGROUND CHECKS Studies (University of Chicago, Georgetown) show just the opposite: Companies that use criminal-background checks are • Less likely to engage in discrimination, • More likely to hire ex-offenders, • More likely to hire minorities, and • More likely to recognize their legal responsibilities and obligations.

  17. CRITICS OF CRIMINAL-BACKGROUND CHECKS • “Citizen re-entry” advocates criticize criminal-background checks in • Employment; • Credit; • Housing; and • Voting.

  18. CRITICS OF CRIMINAL-BACKGROUND CHECKS • UCLA School of Law-A New Way of Life Prisoner Re-Entry Initiative • The Constitution Project—Ginnie Sloan, President • NationalHelping Individuals with Criminal Records Re-enter through Employment Network • National Employment Law Project • National Reentry Consortium • Reentry.net • The Safer Foundation—Diane Williams, CEO Serving People from Arrest to Reintegration

  19. RECIDIVISM STATISTICS • The U.S. Department of Justice tracked the rearrest, re-conviction, and re-incarceration of former inmates for 3 years after their release from prisons in 15 States. • Crimes with the highest re-arrest rates were • Robbery (70.2%), • Burglary (74.0%), • Larceny (74.6%), • Motor-vehicle theft (78.8%), • Possession or selling of stolen property (77.4%), & • Possession/use/sale of illegal weapons (70.2%).

  20. RECIDIVISM STATISTICS • Nearly 70% of drug-abusing offenders return to prison within three years of their release. (Langan & Levin, 2002) 

  21. DRAMATIC INCREASE Dramatic Increase in Negligent-Hiring Claims, and… • Employers lose 70% of negligent-hiring cases • Average jury verdict in such cases is $1.6 million

  22. A BALANCING TEST • Potential liabilities if you hire… • Potential liabilities if you don’t…

  23. “GOLDEN RULES” • Criminal-background checks may violate anti-discrimination laws if conducted incorrectly. • A federal decision in the 3rd Circuit Court of Appeals in 2007, styled El v. SEPTA, marked a serious departure from past treatment, stating that “common sense”-type reasoning is not enough to survive a discrimination lawsuit.

  24. “GOLDEN RULES” • In El v. SEPTA, the court said that criminal-risk-based screening, while legally permissible, requires the employer to show it analyzed the risk both qualitatively and quantitatively. • The qualitative assessment considers what the harm could be for a specific job. • The quantitative assessment considers the likelihood that the harm will occur.

  25. RECIDIVISM – WITHIN 3 YEARS • 650,000 released inmates/yr. • More than half (51.8%) back in prison • 61.7% rearrested for violent crimes regardless of what their offense was • Nearly 70% (67.8%) arrested [More than 80% of crimes go unsolved]

  26. RACIAL ISSUE? YES – But in the right direction: • 11.2% of jobs filled by African-American males when employers do criminal-background checks • Only 3.3% when they do not

  27. RACIAL ISSUE? Overall, employers doing criminal-background checks are more than 50% more likely to hire African-Americans than employers who do not (24% versus 14.8%)

  28. THREATS Threats to Employer Rights to do Criminal-Background Checks • Federal Administration • State legislation • Private lawsuits • Public lawsuits • American Bar Association resolutions

  29. STATE AND LOCAL DEVELOPMENTS There has been significant state activity in: • Oregon; • Pennsylvania; • Connecticut; • Massachusetts; • Minnesota; • New Jersey; • Ohio; • Hawaii, et al.

  30. STATE AND LOCAL DEVELOPMENTS • Criminal-background checks & credit-background checks face parallel threats, with credit checks being a harbinger.

  31. STATE AND LOCAL DEVELOPMENTS • In the past couple of years, about 20 states have considered bills to limit the use of credit report data for employment screening.  • These include: California, Connecticut, Florida, Georgia, Indiana, Kentucky, Michigan, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Texas, and Vermont.

  32. TIMELINE OF OBSTACLES • Convictions within the past 10 years; • Bearing a rational relationship to the duties and responsibilities of the position; and • Only after a conditional offer of employment has been made. In 1998, Hawaii’s Act 175 limited employers’ criminal-history inquiries to: 1998

  33. TIMELINE OF OBSTACLES City of Chicago Hiring Guidelines • Chicago Dept of Human Resources —as recommended by the Mayoral Policy Caucus on Re-entry — removed the criminal history question from its employment applications, anddeferred the criminal-background check until later in the process. • What you see government imposing on itself is a harbinger of what you will see government trying to impose on the private sector. Feb. 2007

  34. TIMELINE OF OBSTACLES • In 2007, Connecticut passed an anti-criminal-background-check law as an eleventh-hour amendment to an unrelated bill. • The effective date was delayed, and the bill was subsequently repealed. 2007

  35. TIMELINE OF OBSTACLES • It was widely reported that a Connecticut school district hired a convicted pedophile as a teacher/coach. 2007

  36. TIMELINE OF OBSTACLES • The ABA considered endorsing bans/restrictions on criminal-background checks, but these repeated efforts fortunately fell short. (Sometimes) 2003-Present

  37. TIMELINE OF OBSTACLES • U.S. Conference of Mayors convened a ground-breaking national summit on 2-28-08 designed to promote effective strategies for connecting formerly incarcerated individuals to the labor market. February 28, 2008

  38. TIMELINE OF OBSTACLES RECOMMENDATIONS: EMPLOYMENT • Create a federal human rights standard prohibiting flat bansagainst hiring qualified people with criminal histories; • Prohibit employers from “inquiring about or using information about arrests that did not lead to conviction or missing dispositions on criminal record reports issued by the Federal Bureau of Investigation (FBI).” Legal Action Center National H.I.R.E. Network October 2008

  39. TIMELINE OF OBSTACLES RECOMMENDATIONS: EMPLOYMENT • Enact a federal standard for employers based on EEOC recommendationson the use of background checks; • [EEOC Chair Stuart Ishimaru has proposed – and strongly supports – this.] Legal Action Center National H.I.R.E. Network October 2008

  40. TIMELINE OF OBSTACLES RECOMMENDATIONS: EMPLOYMENT • Require a criminal-record waiver/appeal process for inaccuracy challenges, rehabilitation evidence, and mitigating information; • Designate an independent body, rather than individual employers, to make fitness determinations; and • Graduate considerationof criminal record based upon severity of crime; and/or passage of time (e.g. seven years). Legal Action Center National H.I.R.E. Network October 2008

  41. TIMELINE OF OBSTACLES • EEOC holds a hearing to entertain views on how employers actually use criminal records in making employment decisions and on how EEOC should revise its compliance manual. November, 20, 2008 • EEOC circulates new draft guidance on background checks in employment decisions. • Timetable for the guidance is uncertain. November 2008

  42. TIMELINE OF OBSTACLES DIANE WILLIAMS • CEO of the Safer Foundation in Chicago, nonprofit helping ex-offenders find jobs. • ADVOCATES CHICAGO’S “BAN THE BOX” —removing the criminal conviction question from the employment application and only utilizing it later in the process. Diane Williams November 20, 2008

  43. TIMELINE OF OBSTACLES • Municipalities adopting “ban the box” include: • Chicago, • Boston, • San Francisco, • Baltimore, • Minneapolis, • St. Paul, • Philadelphia • Numerous other municipalities are considering “ban the box” Current

  44. TIMELINE OF OBSTACLES Diane Williams: • Gov’t should ask about employers' background-check policy in whether to award a government contract. • EEOC needs to prohibiting employers from using info about arrests that did not lead to conviction. • Federal standards should be adopted, based on the EEOC guidance saying “business necessity” must involve :A. The nature of the crime, B. Time elapsed since the crime/prison release, & C. The nature of the job at issue. Diane Williams November 20, 2008

  45. TIMELINE OF OBSTACLES • Include Hawaii Department of Education (including the state public library system) volunteers in close proximity to children; and • Require the Department to establish & maintain a criminal-history database for internal use. Introduced 1/21/09, Hawaii’sstalled(assertedly as too costly) SB 16 attempts to EXPAND employers’ criminal-history inquiries to: January 21, 2009

  46. TIMELINE OF OBSTACLES • Ex-offenders’ advocates seek federal legislation to restrict employers’ criminal-background checks. • Rep. Bobby Scott (D-VA) chairs the U.S. House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. • The summit was orchestrated by Ginnie Sloan, President of The Constitution Project. Rep. Scott headed up a 3-3-09 “summit” on criminal-offender re-entry issues/legislation. March 3, 2009 Rep. Bobby Scott

  47. TIMELINE OF OBSTACLES • Manpower posted this ad for an April 1st, 2009, hiring day at the Alameda (California) One Stop Career Center for 600 Bank of America seasonal jobs. March 2009

  48. TIMELINE OF OBSTACLES • On American Bar Association call Acting Chair Stuart Ishimaru reiterates EEOC is continuing to examine need for more guidance on employers’ use of criminal records and credit histories. April 8, 2009

  49. TIMELINE OF OBSTACLES • EEOC Acting Chair Stuart Ishimarustates on an American Bar Association conference call that, • “We're looking at possible litigation vehicles that may be ways to look at this problem as well.” • April 8, 2009

  50. TIMELINE OF OBSTACLES • On June 9, 2009, NELP wrote the EEOC re this ad. • 15 groups total signed the letter, including the Leadership Conference for Civil Rights. • The groups seeks limits on criminal-history checks. “ ” “ ” June 9, 2009

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