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? SHRM Survey – From Powerpoint available on SHRM website Note: n = 310. Percentages do not total to 100% as respondents were allowed multiple choices. Respondents were asked to select top two options. 6
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 Hispanic 20% African American 38% 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, firstname.lastname@example.org.
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 Consider • The State’s policy to encourage the employment of those with a criminal record • The specific duties and responsibilities related to the employment sought • The bearing, if any, the person’s criminal offenses will have on his or her fitness or ability to perform the job duties • How long it has been since the person committed the crime of which he or she was convicted • The seriousness of the offense or offenses • The age of the person at the time of the crime • Any information the person provides on his or her behalf in regard to rehabilitation and good conduct • The employer’s legitimate interest in protecting property and safeguarding the safety and welfare of others • 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).