Expunged Criminal Records: Is Your CRA Keeping Your Company Out of Harm’s Way?

Expunged criminal records are sealed arrest and conviction records. Many states have enacted laws that allow people to expunge arrests and convictions from their records. Once an arrest or conviction has been expunged, the applicant does not need to disclose it to a potential employer and the record should not show up in a criminal background check. It seems very straightforward, but it isn’t.

The problem for employers is that some Consumer Reporting Agencies (CRAs) have sloppy procedures and use database checks only in reporting criminal records to their clients. Information in these national supplemental databases is stale! Most are updated sporadically, if at all. There is simply no national database that can claim to be “complete and accurate.”

There are employers that feel they are at a disadvantage if they cannot access all criminal records on applicants especially since the incarceration rate in this country is so high. Do employers need to be concerned about not being able to access expunged records on candidates? The answer is no and here is why:

  1. Generally, only lesser offenses, such as petty theft, drug crimes and juvenile offenses, are eligible for expungement; and
  2. Most expungements have conditions and timeframes attached to them.

The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy in consumer reports which includes the reporting of expunged records. Therefore, using expunged records for hiring purposes can cost your company money either in a judgment or in the time it takes to resolve the issue. But the biggest cost to an employer may be the loss of qualified candidates!

So, how do conscientious employers stay out of harm’s way?  The clear path is to never allow a background provider to sell you a standalone “national” database search without verification of results by going to official government repositories.  Managing a background program is managing risk.

Knowing this, Cisive always conducts criminal record searches the right way by using a quintuple verification of criminal records which ensures records are reportable. Many CRAs merely check one county repository when a criminal check is requested by a client. This will never satisfy Cisive’s standards for accuracy. Felony records are maintained in a separate repository in more than 50 percent of the 3,007 counties in the United States. Cisive always conducts a multiple-repository search, including a third level when municipal courts are appropriate. An investigative audit confirms record accuracy, with a review for legal dissemination under state, federal, and international law.

In addition to a multiple-repository search, Cisive also accesses the original source at court repositories. Cisive reviews applicant-identifying information up to five times. Our attention to detail has yielded an impressive 99.9993 percent accuracy rate — adding to the confidence and assurance that you have screened the right candidate and minimizing your exposure to liability.

Although 40 states offer statewide criminal history record checks because their records have been deemed public by acts of legislatures, Cisive can only recommend 15 of them. Our clients rely on our researched experience of approved sources to avoid a deficient repository that may fail to detect a serious criminal history record. That’s another reason why many of our clients have been with us for over 30 years.

In our continuing effort to keep our clients out of harm’s way, Cisive created an informative white paper, Trends & Risks in Performing Criminal Background Checks, which outlines the pitfalls when using commercial databases as a standalone research tool to conduct criminal history inquiries of prospective employees, and provides a series of best practices for employers to consider to avoid potential civil liability when using criminal background checks.

The moral of this story is that it is imperative to partner with a background screening company that conducts criminal background checks the right way. Keep your company out of harm’s way! Contact a Cisive representative today at 1-866-557-5984 or click here.

 

 

Important New Ruling on Race Discrimination Class Action Involving Criminal Background Checks

In a class action alleging that the criminal background policy of Washington Metro Area Transit Authority (WMATA) had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer’s workforce being 75% African-American. The ruling is a “must read” for employers that conduct criminal background screens in their hiring process.

This lawsuit against the WMATA and three of its contractors alleged that, while criminal background information can be a legitimate tool for employers to screen job applicants, WMATA’s background check policy is overly broad and unnecessarily punitive. The suit further alleged that WMATA’s policy goes far beyond any legitimate public safety concerns to permanently stigmatize and bar from employment well-qualified individuals, a disproportionate number of whom are African Americans. For example, under WMATA’s policy, a person who has ever had a felony conviction for drug possession is permanently disqualified from employment in a wide range of jobs, including bus operator and custodian, even if the applicant has been drug-free and held a steady job for ten to 20 years.

WMATA argued that the policy was adopted as a business necessity to govern how and when individuals with criminal convictions can be employed with WMATA and its contractors.

One of the Plaintiffs, Erick Little, who was employed as a bus driver by Ride-On in Montgomery County, was denied a job as a WMATA bus operator based on a 26-year-old conviction for drug possession committed when he was 19 years old (for which he served six months in a work release center and 12 months of probation).

Another Plaintiff, Lawrence Whitted, was fired from his job as a MetroAccess driver for a WMATA contractor, even though he had performed the job successfully for more than five years, based on a drug-related conviction from 1989, which he had disclosed when he initially applied for the job.

According to the Plaintiffs, WMATA’s policy violates federal and local anti discrimination laws, including Title VII of the Civil Rights Act of 1964, because it has resulted in the firing of many employees and disqualification of many qualified job applicants with a wide range of criminal convictions, with insufficient consideration whether the convictions occurred many years in the past or have any relationship to the job at hand.

The ruling, as explained by Seyfarth Shaw LLP, can be found here. The bottom line, is that the court granted in part “Plaintiffs’ motion for class certification and certified three classes under Rule 23(b)(2) and Rule 23(c)(4) with respect to liability and the availability of injunctive relief.”

There is a lesson here for employers. The ruling puts employers on notice that even if the majority of your workforce is part of a protected class, an employer’s hiring policies can still be considered to have a disparate impact on that class for purposes of Rule 23 class certification. Therefore, it’s important to ensure that your hiring policies are neutrally applied and reviewed with counsel.

 Little et al., v. Washington Metropolitan Area Transit Authority et al.

New California Law Prohibits the Use of Juvenile Criminal Convictions in Hiring Decisions

Law book   On September 27, 2016, California Governor Jerry Brown signed A.B. 1843, which prohibits an employer from asking an applicant for employment to disclose information concerning a juvenile arrest or detention that did not result in specific court actions or that has been judicially dismissed or ordered sealed pursuant to law. This new law also prohibits an employer from seeking information from any source regarding a juvenile court’s adjudication, as well as considering an adjudication or court disposition by a juvenile court as a factor in determining any condition of employment including hiring, promotion or termination. This law pertains to public agencies, private individuals and corporations.

In essence, this bill ensures that juveniles are guaranteed the same protections against employer inquiries into criminal histories as adults. Considering the negative effect that criminal records may have on job seekers’ employment prospects, this bill provides much needed relief to youth and adults who have paid their debts to society and are seeking to improve their lives, the lives of their families, and their communities.

This bill is sponsored by the Juvenile Court Judges of California; they state that, “It has been a surprise for many to realize that under current law, people with sealed juvenile records do not have the same rights as those with sealed criminal records. …Not only is this treatment unequal and unfair, but California law attempts to give juveniles an opportunity to demonstrate they can be rehabilitated.  Regrettably, existing law does not reflect state policy regarding rehabilitation. Juvenile records should be treated in the same way that adult criminal records are treated when an employer is questioning a job applicant.”

It is recommended that employers review their employment applications and processes to ensure they are in compliance with this new law.

 

15 Best Practices for the Proper Use of Criminal Records in Hiring

best-practice  Hiring new employees is a critically important function in any business. Every hiring decision represents a major investment that employers must make with limited information. Checking criminal history is just a small part of the background check process, which may also include verifying education, prior employment and other reference information.

At CARCO, we know that it is more important than ever to comply with the recommendations of the Equal Employment Opportunity Commission (EEOC) and the Federal Fair Credit Reporting Act (FCRA) when using criminal records in the hiring process.  We’ve put together a helpful “cheat sheet” on 15 Best Practice Standards for our HR partners to use to properly weigh adverse personal history to find those applicants who will contribute most to the productivity of their organizations.

 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. If a person is being prosecuted for an offense that is relevant to a job for which they have applied, an employer may consider it.

2. CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION

A person who has committed an illegal act in the past may be more likely than the average person to commit a similar act in the future, but they are no more likely to commit other offenses. 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 offense  decreases over time. Employers should consider the available evidence on recidivism rates before rejecting an applicant.

4. DO NOT ASK ABOUT CRIMINAL RECORDS ON EMPLOYMENT APPLICATIONS

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 CRA TO CONDUCT CRIMINAL RECORD CHECKS

All 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.

6. CRAs SHOULD REPORT ONLY CONVICTIONS THAT ARE RELEVANT AND RECENT

Employers should determine in advance the convictions 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 instruction to report only convictions that meet these criteria.

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 identified match.

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 THE 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.

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.

12. CONSIDER EVIDENCE OF REHABILITATION

People change over time. Some people with criminal convictions change their lives and become good citizens who can be good employees. Applicants with relevant convictions recent enough to be of concern should not automatically be rejected. Instead, he or she should be given the opportunity to present evidence of rehabilitation which the employer should carefully consider before making a decision.

13. MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS

Employees making hiring decisions regarding applicants with criminal records are in a difficult position. If the company hires an applicant with a record who later commits another offense, the employee who hired them may be blamed. Hiring decisions should be made by an employee (or employees) who are in the best position to make an objective decision.

14. TRAIN HUMAN RESOURCES STAFF

Hiring decisions regarding applicants with criminal records require an understanding of the practical and legal 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. Human resources employees should be thoroughly trained on these subjects.

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.

 

To view CARCO’s complete White Paper on Best Practice Standards: The Proper Use of Criminal Records in Hiring, click here.

You’re Invited! Conference on the Use of Criminal Records in Hiring

Fred Giles, CARCO’s SVP, Strategic Initiatives, Invites You to Attend A Conference On:

The Use of Criminal Records in Hiring:

Compliance, Risk, and Opportunity

 

WHEN:   Tuesday, May 10, 2016

WHERE:Morgan Lewis

               355 S. Grand Avenue, 45th Floor

               Los Angeles, CA 90071

TIME:     

8:00 am/Registration, breakfast and networking

9:00 am-3:30 pm/Program

Cocktail hour and networking to follow

 

CLICK HERE TO REGISTER

 

HIGHLIGHTS WILL INCLUDE:

  • Review of antidiscrimination laws and EEOC criminal records guidance
  • Rules for obtaining a criminal background check report under the federal Fair Credit Reporting Act, California Investigative Consumer Reporting Agencies Act, and Consumer Credit Reporting Agencies Act
  • Updates on “ban the box” and negligent hiring laws
  • Guidance to help employers assess risk and better determine which applicants with records may be good hires
  • Lessons learned from employer and workforce development partnerships
  • Recent hot cases involving criminal records issues and hiring decisions
  • Current research on risk assessments in the employment setting 
WITH COMMENTS AND PRESENTATIONS FROM:v  The LA Mayor’s Office of Reentry (Mayor Eric Garcetti, invited)

v  US Department of Justice

v  Lawyers’ Committee for Civil Rights Under Law

v  National HIRE Network

v  National Workrights Institute

v  CARCO Group, Inc.

 

CREDIT: CLE credit in CA pending approval.

 

WHO SHOULD ATTEND?

v  In-house employment and litigation counsel

v  Human resources professionals

v  Employers seeking guidance on navigating the various laws applicable to applicants with criminal records backgrounds

 

 

About CARCO Group, Inc. CARCO is an HR technology and paperless workflow solutions company. Started in 1977 as a background screening company, CARCO has evolved to become a full-service HR partner, helping clients manage their new hire process in standalone solutions or integrated with their ATS. CARCO’s Onboarding Solution eliminates paper processes and ensures efficient and compliant hiring. Full-service offerings include background screening globally, electronic I-9/E-Verify, vendor screening, drug testing, and fingerprinting services. Through its technology, CARCO is able to customize unique programs and quickly respond to changing customer needs.

Complimentary White Paper on Best Practice Standards: The Proper Use of Criminal Records in Hiring

Best practices cover page   January is always a good time of year to review and fine tune processes, including your company’s employment screening program.  Remember that compliance is important!

With that in mind, CARCO, the  industry-leading Employment Screening provider, is providing a Best Practice guide which explains, among other things, that employers need to follow sensible procedures in considering the past conviction records of job applicants, since failing to do so will both hurt the employer’s interests and risk discriminating against productive workers of every heritage.  The guide includes a clear, actionable checklist of the 20 Best Practice Standards that should be implemented by employers.

Jim Owens, CARCO’s CEO, and Fred Giles, CARCO’s SVP, Research Division, worked with the National H.I.R.E. Network, Lawyers’ Committee for Civil Rights and National Workrights Institute, along with Attorney Lester Rosen, Founder and CEO of Employment Screening Resources, to create this best practices piece.  According to Jim Owens, “CARCO is proud to have played a role in the development of this best practices document.   It provides a clear and practical road map for employers to comply with the guidance released by the EEOC in April of 2012 regarding the use of criminal records.”


To access the checklist and read the full report, please click here:


                                        

REMINDER: Best Practices Standards for the Proper Use of Criminal Records in Hiring

Best practices cover pageResponsible hiring practices should incorporate the recommendations made by the Equal Employment Opportunity Commission (EEOC) and the Fair Credit Reporting Act (FCRA).

 

As the EEOC pointed out in its 2012 “Enforcement Guidance on the Use of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964”, proper use of criminal history data begins with looking at the risks that arise from the nature of the job.

 

Employers must remember that millions of workers with prior convictions have turned their lives around and become productive members of society.  These workers are disproportionately from minority communities.  Employers need to follow sensible procedures in considering the past conviction records of job applicants, since failing to do so will both hurt the employer’s interests and risk discriminating against productive workers of every heritage.

 

Below are some Best Practice Standards that will enable employers to protect their interests without unduly burdening applicants with past mistakes.

  1. Consider only convictions and pending prosecutions.
  2. Consider only convictions that are relevant to the job in question.
  3. Consider only convictions recent enough to indicate significant risk.
  4. Do not ask about criminal records on application forms.
  5. Use a qualified CRA to conduct record checks.
  6. CRAs should report only convictions that are relevant and recent.
  7. Report convictions only when full name and one other identifier match.
  8. Confirm all information from online databases with original source.
  9. Get current disposition of all relevant information.
  10. Provide applicant the opportunity to challenge the CRA’s report.
  11. All charges related to a single incident should be reported as a single entry.
  12. Consider evidence of rehabilitation.
  13. Minimize conflict of interest by decision makers.
  14. Train human resources staff.
  15. Have a diversity program.

 

Click here to read the full White Paper, Best Practice Standards: The Proper Use of Criminal Records in Hiring, written by experts from the National H.I.R.E. Network, Lawyer’s Committee for Civil Rights Under Law, National Workrights Institute, and CARCO Group, Inc.

 

Federal Court Grants Class Certification in Title VII Disparate Impact Suit Over Alleged Discriminatory Criminal Records Screening Policy

Excerpted from Littler.com by authors: Rod Fliegel and Molly Shah

On July 1, 2014, the court granted class certification in a high-profile disparate impact discrimination case against the Census Bureau in federal court in New York based on its criminal record screening practices, Houser et al v. Pritzker..  The plaintiffs are represented by a well-known New York class action law firm and not by the Equal Employment Opportunity Commission (EEOC).  The suit seeks back pay and equitable relief for a class of unsuccessful Latino and African-American job applicants.  The Bureau allegedly discriminated against the class members by (1) requiring them to provide the Bureau with detailed information about their prior criminal records in order to progress in the hiring process (referred to as the 30-day Letter), and (2) rejecting job applicants on the basis of an allegedly arbitrary and inflexible assessment of their prior criminal records.

The court did not decide whether the Bureau discriminated against the class members.  The court only reached the procedural question of whether the plaintiffs could certify the case as a class action.  Nevertheless, the court’s opinion is significant because it may tend to encourage similar disparate impact discrimination suits by the plaintiff’s bar.  In that regard, the court distinguished the U.S. Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes because the Bureau’s practices, unlike those of the company in Dukes, were both uniform and non-discretionary.

Additionally, the court’s ruling that the Bureau’s practices can be tested by common proof may encourage the EEOC to continue to press its criminal records screening cases.1  The EEOC can prosecute broad claims without even certifying a class, but in disparate impact litigation must still identify with specificity the alleged discriminatory employment practice.  Indeed, in its disparate impact lawsuit against a different employer, the EEOC has, so far, failed to meet this burden.

For the full story, visit: http://www.littler.com/publication-press/publication/federal-court-grants-class-certification-title-vii-disparate-impact-su#sthash.W7gt8Fx3.dpuf