Presenting a live 90-minute webinar with interactive Q&A Pre-Employment Background Screening: Complying With Ban the Box Laws, Fair Credit Reporting Act and More WEDNESDAY, FEBRUARY 17, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Mark S. Goldstein, Esq., Reed Smith , New York Albert E. Hartmann, Counsel, Reed Smith , Chicago Peter J. Stuhldreher, Partner, Reed Smith , Houston The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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“Ban the Box” Laws 4
Ban the Box State and Local Law Limitations • Many states and localities now have their own laws and ordinances regulating when and how employers may utilize background checks • These are typically known as “ban the box” laws 9
Ban the Box The Rationale • These laws assist individuals with criminal histories in rejoining the workforce and hopefully will: • Reduce recidivism and its associated costs • Enhance public health and safety • Lead to economic growth 6
States with “Ban the Box” Laws • California • Nebraska • Colorado • New Jersey* • Connecticut • New Mexico • Delaware • New York • Georgia • Ohio • Hawaii* • Oregon* • Illinois* • Rhode Island* • Maryland • Vermont • Massachusetts* • Virginia • Minnesota* * Ban the box law applies to private employers 7
Ban the Box Common Structures • With the “box” removed from the application, when can employers ask about convictions? • Minimum qualifications (CA, CT, NE, OH, VT, VA) • First live interview (DE, IL, MD, MN, NJ, NY, OR, RI) • Conditional offer of employment (CO, HI, NYC) • Selection as a finalist (NM) • After background check is run and provided to applicant (MA) 10
Ban the Box “Ban -the- Box” in California • In July 2014, California barred governmental or public employers from requesting information regarding criminal convictions until after the employer determines the applicant meets the minimum qualification standards for the position. • Many CA cities have since passed their own measures: • San Francisco: Employers with 20+ employees and operations in San Francisco are prohibited from inquiring into an applicant’s criminal history until after the first “live interview.” • Compton and Richmond both passed similar measures for employers who do business with the city. 10
Ban the Box “Ban -the- Box” in New York • In September 2015, New York adopted a fair chance hiring policy for state agencies where applicants cannot be asked about prior convictions unless the agency has interviewed the candidate and is interested in hiring him or her. • In June 2015, New York City passed its own Fair Chance Act • Employers with 4+ employees cannot ask about a conviction record or run a background check on an applicant until after a conditional offer has been made. • Also requires that the employer provide the applicant with the employer’s analysis of the background report if the employer rescinds its conditional offer because of the applicant’s prior conviction, and allow the applicant three days to respond. 10
Ban the Box And Across the Nation… • New Jersey : Employers with 15+ employees may not ask questions regarding an applicant’s criminal conviction on job applications, and may not inquire regarding criminal convictions until after the applicant’s first interview. • Illinois : Employers with 15+ employees cannot inquire into, consider, or require disclosure of an applicant's criminal history until after the applicant has been (i) deemed qualified for the position and (ii) notified that (s)he has been selected for an interview. • Washington, D.C. : Employers with 10+ employees cannot inquire about convictions until after a conditional job offer. 11
Ban the Box TAKE ACTION • What do “ban the box” laws mean for employers? • As an employer, you need to know: • Local and state laws to see if policies apply to your workplace (especially when moving into new locations) • When you can ask about prior convictions • What convictions you can ask about (Time limits? Expunged or sealed records? Arrests?) • Whether you need to provide the applicant with copy of the record • Whether you need to notify the applicant with reason for denial 12
Ban the Box TAKE ACTION • Before rejecting an applicant on the basis of a criminal record, evaluate the relationship between the conviction and the applied for position • Keep a record of when information was collected and when analysis was performed 13
State and Local Credit Check Bans 14
Credit Checks Federal Requirements • If an employer wishes to run a check credit as part of the hiring process, the employer must: • Get the applicant’s consent before doing so • Give the applicant a warning (along with a copy of the report received) if the employer plans to reject the applicant based upon the information obtained • Give the applicant an official adverse action notice if the employer does not hire him/her because of the information obtained 15
States and Major Cities with Credit Check Limitation Laws States Cities • California • Chicago • Colorado • New York City • Connecticut • Delaware • Hawaii • Illinois • Maryland • Nevada • Oregon • Vermont • Washington 16
Credit Checks New York City • Effective September 2015, NYC bars most employers from requesting or considering a prospective or current employee’s “consumer credit history.” Who’s exempt? What is consumer credit history? • Consumer credit report • Entities required by state or federal law to use or verify an applicant or • Credit score employee’s credit history • Information obtained from the • Positions w/ signatory authority over individuals re: credit accounts, third-party funds of $10,000+ missed payments, bankruptcies, etc. • Positions w/ authority to enter employer into financial agreements of $10,000+ 12
Credit Checks California California – Labor Code, section 1024.5: • Credit Report checks can only be performed for: • • Managerial positions Positions with regular access to • Law enforcement $10,000 cash • • Positions with the state Positions with access to Department of Justice confidential or proprietary • Positions with regular access to information individuals’ sensitive financial • Positions where the individual is information authorized to transfer money or • Positions where the individual enter into financial contracts on will be a named signatory on the behalf of the employer company card 12
Credit Checks Take Action • What should employers do? • Always check local/state ordinances when expanding into new territories • Review existing policies and procedures and update as needed • Review job descriptions to identify which positions are exempt from applicable regulations 19
Criminal Conviction Discrimination Laws 20
Criminal Conviction Discrimination Laws • States with laws prohibiting employment discrimination against ex-offenders Private Employers Public Employers • Hawaii • Arizona • Kansas • Colorado • New York • Connecticut • Pennsylvania • Florida • Wisconsin • Kentucky • Louisiana • Minnesota • New Mexico • Washington 21
Criminal Conviction Discrimination Laws How these laws work • Require employers to analyze the connection between the conviction and the duties of the job applied for • Nearly all the laws require that an employer be able to show that there is some rational relationship between the offense committed and the job sought. • Hawaii : must be “reasonably related” to the job sought • Kansas : must “reasonably bear” on the applicant’s trustworthiness or general safety of customers and employees • New York : must be a “direct relationship” between the job and offense • Pennsylvania : must be a “job related” offense • Wisconsin : must “substantially relate” to the employment 22
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