Another State Bans the Box for Private Employers. How Does a Company Remain Compliant?

On October 14th, California Governor Jerry Brown signed AB 1008 which prohibits most public and private employers with five or more employees from asking applicants about criminal convictions until after a conditional offer of employment has been made. The law goes into effect on January 1, 2018.

The bill requires employers that run background checks to assess each person’s circumstances individually and examine the nature of the crime, the relationship to the job, amount of time that has passed since the offense, and evidence of rehabilitation. The bill also requires that employers notify applicants about any criminal history in their consumer reports and give the applicant a chance to correct any errors, provide evidence of expungement or present mitigating information.

The Fair Chance bill removes job barriers for applicants in California with criminal histories and gives them a fighting chance at securing employment without their past being used against them.

How can employers remain Ban the Box compliant?

Ban the Box continues to be one of the more complicated issues in employment law as more and more states and municipalities enact laws restricting when an employer can consider criminal conviction history in the hiring process. So far, 29 states and over 150 cities and counties have enacted some type of Fair Chance or Ban the Box law. Some apply only to government sector employers and others include private sector employers. California is the 10th state to ban the box for private employers.

Employers face enough challenges including the compliance stew being created by the myriad ban the box laws. So how does a company ensure compliance? Here are a few suggestions:

  1. Adjust your hiring process so that background screening is conducted after a conditional offer is made to the applicant.
  2. Train recruiters and hiring managers to reinforce how to conduct a complete assessment of the individual candidate to make appropriate hiring decisions.
  3. Define a background relevancy matrix by position.
  4. Partner with a background screening company that has these rules built into their platform, the expertise to recognize these laws as they are passed and the flexibility to react quickly in implementing any new rules or forms for employers.

To learn how Cisive keeps your company in compliance and out of harm’s way, contact a Cisive Specialist at 1-866-557-5984 or click here.

 

Summary of Final Regulations Clarifying and Expanding New York City “Ban the Box” Law, Effective August 5, 2017

New York City has imposed its own “ban the box” law, the Fair Chance Act (FCA), and associated set of regulations on employers, which took effect on October 27, 2015. Recently New York City has issued the final guidelines, effective August 5, 2017, regarding how employers should be conforming to this law. The final regulations expand on and clarify the already burdensome requirements of the FCA, making it more difficult for New York City employers, and national employers doing business in New York City, to screen applicants whose criminal history may affect their ability to do their job or present an unreasonable risk to their business, customers or employees.

Given the large population of Cisive’s New York City clients and hiring conduct in New York City, we thought it important that we post a summary of the key provisions of the final regulations.

Click here to review an excellent summary of the regulations and the recent guidance that was put together by Stephen A. Fuchs of Littler Mendelson, P.C., the largest global employment and labor law practice. According to Fuchs, “Employers with a consolidated hiring process used in multiple jurisdictions in particular should carefully review the final regulations to ensure that their process does not constitute a per se violation of the FCA.”

Below is a list of the topics covered in-depth in the summary:

  • Clarification on Per Se Violations
  • Employers Cannot Consider Non-Convictions
  • Pending Criminal Charges Cannot be Considered Prior to a Conditional Offer
  • Guidance Regarding Inadvertent or Unsolicited Disclosure of Criminal History Prior to Conditional Offer
  • Additional Steps Must be Taken Before Withdrawing a Conditional Offer
  • Provisions Relating to Temporary Help Firms
  • Rebuttable Presumption That a Conditional Offer Was Withdrawn Because of Criminal History
  • Enforcement Initiatives
  • Compliance Recommendations for Employers

Delaware Joins Growing Number of States and Bans Pay History Inquiries

 

On June 14, 2017, Delaware’s governor John Carney signed into law House Bill 1 enacting a pay history inquiry ban similar to those enacted in Massachusetts, New York City, Oregon, Philadelphia, and Puerto Rico. A number of other states have provisions relating to pay history as well. In California, for example, employers are prohibited from pointing to an employees’ prior salary, by itself, to justify a disparity in compensation.

The Delaware law aims to eradicate the pay disparity between men and women by prohibiting employers from asking applicants about their pay history until AFTER a conditional offer of employment has been made. At that point, Delaware employers are allowed to discuss and negotiate compensation expectations provided that the employer does not request or require the applicant’s compensation history.

After an employment offer has been made and compensation terms have been spelled out, the law allows for the confirmation of salary history information.

To help protect employers, the law provides a safe harbor for those who can demonstrate that they informed their recruiters or hiring personnel of the prohibitions of the law and instructed them to comply. This provision was included to address employers’ concerns about liability when using outside recruiters, especially those located outside of Delaware, because they often operate outside the direct control of the employer and may not be fully aware of this new Delaware law.

Delaware employers should review their hiring practices to ensure they are in compliance with House Bill 1 and that all employees and agents involved in hiring understand their obligations.

Penalties for violators run between $1,000-$5,000 for the first offense and $5,000-$10,000 for each subsequent violation.

Delaware’s pay history inquiry ban will take effect on December 14, 2017.

Best Practices in Background Screening in the Ban the Box Era

 

To help ex-felons obtain employment and to reduce recidivism, the District of Columbia and over 150 cities and counties (in 20 states) have passed fair chance (Ban the Box) laws removing questions about criminal convictions from job applications. This change allows employers to base their hiring decisions on qualifications first.

These laws apply to the cities and counties themselves. Many of them also apply to private employers including Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island.

It should be noted that Ban the Box fines are big! Just ask Marshall’s and Big Lots (penalties totaling $195,000.)

The National Employment Law Project (NELP) has put together a list of ten principles for employers to follow to update their hiring policies and procedures:

  1. Avoid stigmatizing language.
  2. A background check may be unnecessary for a job position.
  3. Avoid blanket exclusions and instead include an equal opportunity statement on job applications.
  4. If a background check is necessary, only consider those convictions with a direct relationship to job duties and responsibilities and consider the length of time since the offense.
  5. Remove inquiries into convictions from the job application.
  6. Remove self-reporting questions about conviction history.
  7. If a job applicant is rejected because of a record, inform the applicant.
  8. Provide the applicant the right and sufficient time to submit evidence of mitigation or rehabilitation.
  9. Expand the fair change policy to private employers.
  10. Combine data collections and effective reinforcement.

It is important for employers to keep abreast of the different ban the box laws as each has its own set of nuances. For example, each law restricts when an employer can inquire about a person’s criminal history and how it can be used for employment purposes.

Click here to view Cisive’s Ban the Box chart summarizing the policies.

For more information on how Cisive can keep your hiring process compliant, contact us at 866-557-5984 or sales@cisive.com.

City of Los Angeles Bans the Box for Private Employers

bantheboxEffective January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring Ordinance will ban private employers from asking about an applicant’s criminal history or conducting a criminal background check until after extending a conditional offer that is only conditioned on the result of the check.

The Ordinance applies to any private employer that employs at least 10 people who perform at least two hours of work each week within the boundaries of the City of Los Angeles. Exceptions include employers who are required by law to obtain an applicant’s convictions, or those who are prohibited by law to hire an individual convicted of a crime.

Banned Hiring Practices

The Ordinance is one of the strongest fair chance hiring laws in the nation, stating that an Employer shall not:

  1. Include on any application for employment any questions that seek the disclosure of an applicant’s criminal history.
  2.  At any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made.
  3. Take adverse action against an applicant to whom a conditional offer has been made based on criminal history unless the employer performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the position at hand.

Employer Assessment of Criminal History

  1.  The employer must provide the applicant with a Fair Chance Process, including written notifications of the proposed adverse action, a copy of the written assessment and any other information supporting the adverse action.
  2. The employer cannot take adverse action or fill the position sought by the applicant for a period of at least 5 business days after the applicant is informed of the proposed adverse action in order to allow the applicant to complete the Fair Chance Process.
  3. If the applicant provides information or documentation during the Fair Chance Process, the employer must consider the information and perform a written assessment of the proposed adverse action.
  4. If after reassessing the proposed adverse action decides to proceed with the adverse action, the employer must notify the applicant and provide a copy of the written assessment.

Notice and Posting Requirements

An employer must state in all advertisements that it will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance. Employers also must post a notice informing applicants of the provisions of the Ordinance in a “conspicuous place at every workplace, job site or other location in the City under the employer’s control and visited by employment applicants.” Employers must also send a copy of the notice to each labor union with which they have a collective bargaining agreement covering employees located in the City.

Record Retention

Employers must retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Ordinance for three years following the receipt of a job application.

Enforcement and Penalties

Civil enforcement can be brought after applicant or employee has reported the violation to the Designated Administrative Agency (DAA), which must be done within one year of the alleged violation. At that time, the administrative process must be completed or a hearing officer’s decision must be rendered, whichever is later.

In terms of administrative enforcement,  penalties and administrative fines for an employer violation can be up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. Penalties and fines will not apply until July 1, 2017. Prior to July 1, 2017, the DAA will issue written warnings to employers that violate the Ordinance.

Recommended Actions in Preparation for January 22, 2017

  • If you have not already done so, review job applications and remove any criminal records question.
  • Review all employment material and remove any question regarding the applicant’s willingness to submit to a background check before a conditional offer.
  • Rescind any automatic rules in place to exclude candidates with criminal records from employment.
  • Review your hiring and interview policies and processes. Revise them to delay inquiry into criminal history until AFTER a conditional offer of employment.
  • Train all individuals involved in recruitment, hiring, interviewing, and individualized assessments to comply with the requirements of this law.
  • Establish protocol for handling individualized assessments.

To help ensure Ban the Box compliance, contact a CARCO Specialist at 1-866-557-5984 or click here.

 

 

Federal Bill Introduced to Ban Salary History Question

Employers would no longer be allowed to ask job applicants about their salary histories under a bill introduced in Congress Sept. 14. The bill by Rep. Eleanor Holmes Norton, D-D.C., is designed to even the playing field among men and women and minorities doing substantially the same work.

SHRM Online reported that a spokesperson from Norton’s office projected that the bill would be introduced in the House of Representatives this week. Congress referred the bill to its House Committee on Education and the Workforce.

Under the Pay Equity for All Act of 2016 (H.R. 6030), the U.S. Department of Labor would be able to assess fines up to $10,000 against employers who violate the law by asking questions about an applicant’s salary history. Additionally, prospective or current employees would be able to bring a private lawsuit against an employer who violated the law and could receive up to $10,000 in damages plus attorney fees.

On a state level, Massachusetts just signed a pay equity law making it the first state to enact this type of legislation. New York and California have similar laws pending approval.

The bill is co-sponsored by Reps. Rosa DeLauro, D-Conn., Jerrold Nadler, D-N.Y., and Jackie Speier, D-Calif.

Connecticut Bans the Box for Private and Public Employers, Effective January 1, 2017

banthebox   On June 1, 2016, Connecticut Governor Dannel Malloy signed a Ban the Box Bill into law that will prohibit most employers in the state with one or more employees from requiring job seekers to disclose any criminal history such as prior arrests, criminal charges, or convictions on initial job applications. Employers still may make criminal background inquiries later in the hiring process, either during the interview process or contingent upon an offer.

The Connecticut Ban the Box law takes effect on January 1, 2017.

 The key provisions are as follows:

  • No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.
  • Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

Recommended Actions in Preparation for January 1, 2017:

  • Review job applications for impermissible inquiries regarding criminal records.
  • Review your hiring and interview policies and processes. Revise them to delay inquiry into criminal history until AFTER initial employment application.
  • Train all individuals involved in recruitment, hiring, and interviewing, to comply with the requirements of this law.

     

Portland’s Ban the Box Ordinance Starts in July for Public & Private Employers

banthebox    

Under the ordinance passed last December by Portland, Oregon’s City Council, starting in July city and private employers will be barred from asking about job candidates’ criminal records or doing criminal background checks until after a job offer has been made.

In addition, when considering someone for a job, employers must weigh a candidate’s experience and skills without considering their past criminal convictions. However, once a conditional job offer has been made, the employer may do a criminal background check. But if an employer retracts a job offer based on a past criminal conviction, they must explain what prompted them to reconsider the applicant.

The ordinance applies to private-sector employers who have six or more employees, but exempts other governmental agencies besides the city of Portland.

Exceptions include drivers, law enforcement specialists or others involved in the criminal justice system, and those who work with children, the mentally ill or clients with past addictions. Volunteers also are exempted.

Enforcement of the ordinance is the responsibility of the state Bureau of Labor and Industries (BOLI), which handles other job discrimination-related cases.

People who feel employers failed to follow the ordinance have six months to file complaints with BOLI, but would lose the right to mount separate lawsuits against the employer.

 

City of Austin Bans the Box for Public and Private Employers

bantheboxOn March 24th, Austin became the first city in the South and joined fair chance hiring cities including Philadelphia, Seattle and San Francisco requiring both public and private employers (with 15 or more employees) to remove inquires about prior felony convictions from their job applications.  The issue can be discussed when a conditional offer of employment has been made.  A background screening can be performed at that time.

 

Austin May Steve Adler said, “The ordinance will allow more Austinites to get jobs so they can afford the city’s rising cost of living.”

 

Penalties will not be imposed during the first year, but after that employers could be fined up to $500 per instance.

 

Executives’ Alliance Foundation Leaders “Ban the Box”

According to a recent press release, leaders from 42 foundations announced they have “banned the box” by adopting fair chance hiring policies or ensuring that questions about criminal convictions do not appear on applications for employment with their foundations. The foundations are members and allies of the Executives’ Alliance for Boys and Men of Color—a philanthropic network committed to improving outcomes for boys and men of color, their families, and their communities.

This philanthropic call to action also follows positive developments in the private sector, with employers such as Starbucks, Facebook, and Target leading the way. President Obama also took action to move toward banning the box in the federal government’s hiring process.

According to the Executives’ Alliance, the need for action is urgent. Over 70 million Americans have arrest or conviction records that can show up in background checks, reducing the likelihood of a callback interview for an entry-level job by 50 percent. This takes a particularly heavy toll on communities of color that are disproportionately impacted by mass incarceration.

Research shows that employing formerly incarcerated people reduces recidivism and strengthens families. By adopting fair hiring policies, foundations are playing their part as employers to remove the stigma associated with a record, and setting an example for other foundations and their grantees to follow.

Executives’ Alliance members and allies have reviewed their hiring policies and practices to ensure they are in compliance with the civil rights and consumer laws regulating criminal background checks for employment and guidance on the use of criminal records issued by the U.S. Equal Employment Opportunity Commission.  In addition, the Alliance has commissioned the National Employment Law Project to develop a Model Fair Chance Hiring Policy and Toolkit for employers in the philanthropic sector.  The model policy will incorporate key features of the nation’s strongest fair hiring laws (adopted by New York City, Philadelphia, San Francisco, Seattle, and other major cities).

The foundations taking action include:  

Andrus Family Fund, Annie E. Casey Foundation, Arcus Foundation, The Atlantic Philanthropies, Black Belt Community Foundation, Butler Family Fund, California Community Foundation, The California Endowment, The California Wellness Foundation, Casey Family Programs, Community Foundation for Greater Buffalo, Consumer Health Foundation, Deaconess Foundation, East Bay Community Foundation, Ford Foundation, Foundation for the Mid South, Edward W. Hazen Foundation, Foundation for Louisiana, Kapor Center for Social Impact, Kresge Foundation, The Jacob & Valeria Langeloth Foundation, Liberty Hill Foundation, Living Cities, Lumina Foundation, Marguerite Casey Foundation, Missouri Foundation For Health, Nathan Cummings Foundation,  NBPA Foundation, Nelly Mae Education Foundation, Open Society Foundations, Public Welfare Foundation, Robert Wood Johnson Foundation, Rosenberg Foundation, The San Francisco Foundation, The Schott Foundation for Public Education, Sierra Health Foundation, Silicon Valley Community Foundation, The Skillman Foundation, Southern Education Foundation, Tides, Winthrop Rockefeller Foundation, and the W.K. Kellogg Foundation. 

They also issued a challenge to all U.S. philanthropic institutions to follow suit and eliminate barriers to employment for people with arrest and conviction records.

SOURCE Executives’ Alliance