Expanding the Labor Pool by Considering Rehabilitated Offenders

It’s an economic cycle: when labor is plentiful, employers can afford to be choosy about who they hire. When labor pools shrink, employers often need to remove some of their restrictions and consider hiring people with less formal education or fewer years of work experience. One place employers can look for workers to fill labor shortages includes a pool of applicants they might be accustomed to rejecting: ex-offenders.

Thinking Differently About Hiring Ex-Offenders

It’s been conventional wisdom for years that former offenders are riskier to hire: they may present a threat to other workers or steal money or stock from a business, so the thinking goes. But a new study has shown this may not be true, and that there may be benefits to hiring ex-offenders. The real question for employers willing to take the chance is how to evaluate and select these candidates, according to EHS Today, which highlights research from the Society for Human Resource Management (SHRM) which a demonstrated consistent work history is a better marker of a good worker than a clean record.

“It’s time to put an end to the stigma that holds back inclusive hiring and retire outdated employment practices,” said SHRM’s president Johnny C. Taylor, Jr. “With unemployment falling below four percent, employers must think differently about both jobs and the people who can fill them. A criminal record should never be viewed as an automatic disqualification for employment.”

In addition to a consistent work history, employers should look for references, job training, and a certification of rehabilitation. They should also be sure to conduct a thorough background check to validate the truth of claims on an application. It is, however, important to do so within the law. California already has restrictions on how criminal background check information may be used.

FIRST STEP Act

Another factor that may make relaxing rules on hiring ex-offenders more appealing is criminal reform legislation at the federal level in the form of the FIRST STEP Act, which cleared the House in May. Among other things, the legislation would provide $250 million over five years for new inmate education and rehabilitation programs, which include job training.

Call the Professionals

A pre-employment background check company like DataCheck can help you safely expand your pool of job applicants while continuing to protect your business and your existing employees. As a full-service background investigation company, we specialize in obtaining pertinent information via criminal background checks, past employment, and background history information, and background investigations for DMV history, credit reports, drug screening, and many other issues.

Contact DataCheck via our website or call 800-253-3394 to discuss your employment background investigation needs today.

Criminal History Check Update: A Look at Current Laws

More states, cities, and municipalities are opting to “ban the box” and bar public employers from asking about job applicants’ criminal histories on initial applications and paperwork. (It’s permissible to do so after the job has been offered if it’s relevant to the applicants’ position.) It’s a way to ensure that ex-offenders are given a fair shake in the job market. Since California put their own nation-leading “ban the box” ruling into place last year, many other states and regions have followed.

Here’s a look at the most recent states and what they are doing to further protect applicants:

  • In June 2018, St. Louis County officials announced the county will no longer ask job applicants for criminal histories in their initial employment applications,” according to the St. Louis Post-Dispatch.
  • With an executive order signed in May, Kansas Governor Jeff Colyer “banned the box” for people who apply for executive branch jobs with the state. “It provides applicants with the opportunity to explain their unique facts and circumstances and what has happened to them and how their lives have changed,” said Governor Colyer.
  • On March 13, 2018, Washington state Governor Jay Inslee signed the Washington “Fair Chance Act,” which prohibits employers from asking about arrests or convictions before an applicant is determined otherwise qualified for the position sought. With both California and Oregon on board with “ban the box,” this means the practice is law on the entire U.S. West Coast.
  • Also in June, Johnson County, Iowa passed a ban the box ordinance that removes the requirement for applicants to initially disclose any criminal history.
  • Massachusetts already has ban the box rules in place, but on October 13, 2018, further restrictions on employers’ ability to consider a job applicant’s criminal history information in the hiring process will take effect. Among other rules is a decreased time period for disclosure of misdemeanor convictions by applicants from five to three years.

Private Employers Step Up Background Checks

At the same time, states and municipalities are making rules to protect applicants, some private employers like Uber are stiffening the requirements for background checks for applicants. Private companies (like Uber) have settled legal cases alleging faulty practices and a lack of thorough checking for sex offenders, in particular.

Hire a Professional Background Check Company

As an employer, how do you ensure you’re not running afoul of the increasingly complex rules and regulations, but also protecting your business and your existing employees? Third party agencies such as DataCheck help employers navigate the complex rules and regulations around compliance and privacy laws such as “Ban the Box,” while protecting both applicants’ rights and employers’ best interests.

Contact DataCheck today for professional pre-employment services such as criminal background checks that protect your workers and your business from identity theft, fraud and negligence.

Criminal Background Checks & Compliance: Is Your Hiring Policy Up to Date?

Across the country, 31 states and over 150 cities and counties have adopted what’s referred to as, “ban the box” rules that require employers consider a job candidate’s qualifications first rather than using arrest records as a step-one elimination tool, according to the National Employment Law Project.

The goal of “ban the box” is to give employment applicants a fair chance by removing the conviction history question from job applications and delaying background checks until later in the hiring process.

Violating the rules can be costly.

Target Agrees to $3.7 Million “Ban the Box” Settlement

In April, the Wall Street Journal reported that Target Corp. agreed to pay more than $3.7 million to resolve a civil-rights class-action complaint that alleged the retail giant’s policies regarding criminal-background checks were too broad and discriminated against African-American and Latino applicants. The company has also promised to overhaul job-screening guidelines for hourly workers. The settlement was in response to a civil suit filed by two individuals who had received conditional job offers from Target that were later revoked following the criminal-background screening process. The plaintiffs were represented by the NAACP Legal Defense and Educational Fund and the law firm Outten & Golden LLP.

Under the terms of the proposed settlement, Target will give priority hiring rights to African-Americans and Latinos who applied for jobs beginning in May 2006, but were denied employment based on pre-employment background checks. Applicants who have since retired or become ineligible to work because of medical issues or military obligations will be eligible to receive up to $1,000 in compensation. Target will also donate $600,000 to nonprofit organizations that provide aid to released prisoners.

The settlement estimated that 41,000 African-American and Latino applicants were denied employment from May 2008 to December 2016 due to the company’s criminal-history screening process. Target has said that it has now removed the criminal-history question from its employment application, but that it believes that criminal history checks are still vital for the safety of all its employees at the final stages of the hiring process.

Ensure You’re Doing Background Checks Properly

Criminal history background checks are an integral part of the hiring process and help protect companies and their employees. It’s essential, however, that employers ensure they’re following the law.

Contact DataCheck to inquire about professional pre-employment services that protect your workers and your business and avoid negligent hiring lawsuits while still complying with “ban the box” laws.

Judge’s Ruling on Criminal Background Checks in Texas Muddles Hiring Compliance

In 2012, the federal Equal Employment Opportunity Commission (EEOC) under the Obama administration began advising employers to use criminal background checks during job screenings only when the inquiry is directly job-related or necessary for the business. Issued in the form of guidance, the EEOC clarification described employer policies that may violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, ethnicity, and other factors.

Background Checks for Hiring

In 2013, the State of Texas filed a lawsuit against the EEOC, accusing the commission of unduly restricting their ability to exclude certain candidates in hiring practices. (In Texas, it’s against the law to hire convicted felons for certain state agency positions.) Now, a federal judge has granted Texas’ request to block some of the restrictions, particularly those on background checks in hiring.

“The State of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise,” Texas argued in its November 2013 complaint.

The Obama-era rule was dismissed on procedural grounds, with the court finding that the EEOC violated federal law by issuing the guidance without providing the public with notice and opportunity to comment. The dismissal means that the EEOC may not enforce the 2012 guidance in Texas, though the federal government could choose to appeal the judge’s ruling. The judge did not hand the state a full win, however. According to the Texas Tribune’s Emma Platoff, the EEOC can still issue right-to-sue letters in Texas cases. In addition, the judge did not affirm Texas’ right to categorically exclude felons from certain jobs.

“A categorical denial of employment opportunities to all job applicants convicted of a prior felony paints with too broad a brush and denies meaningful opportunities of employment to many who could benefit greatly from such employment,” according to Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas (Lubbock Division).

Job Seekers with Records

Christine Owens, executive director of the National Employment Law Project, expressed disappointment with the district court ruling and said it should not be confused for a license to discriminate against job-seekers with records.

“Even in Texas, Title VII stands,” said Owens. “More broadly, states and employers would do well to avoid hiring policies that exclude people with records, as they only weaken the economy, undermine public safety, and harm families and communities. In light of this order, we are exploring our legal options moving forward.”

Employee criminal background checks can be a legal minefield, so employers should be sure they’re remaining within federal and state laws when they initiate checks. Third-party, pre-employment background screening companies can help employers stay in the boundaries of the law.

Contact DataCheck today for more information.

New California Labor Law Affects Employee Criminal Background Checks

Last year, the State of California passed a series of labor and employment bills that affect state labor and hiring practices. These laws, which were signed by Governor Jerry Brown and went into effect on January 1, 2018, relate to (among other things) workers’ wages and hours, leaves of absence and benefits, hiring practices, health and safety issues and other workplace protections. One of the most controversial laws is restrictions on how and when employers can request and use information about an applicant’s criminal history.

What is AB 1008?

Prior to 2018, California employers were already barred from making a decision on hiring a potential employee based on arrests or detentions that did not result in a conviction. The new law, Assembly Bill (AB) 1008, puts into place even stronger anti-discrimination measures. Companies with five or more employees must comply with the following:

  • They cannot seek the disclosure on an employment application of the applicant’s conviction history;
  • They can’t require or consider conviction history until a conditional offer has been made to the applicant; and
  • Employers may not “consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.”

The “Individual Assessment” Requirement

AB 1008 also draws out the process for a company looking to deny employment to an individual based “solely or in part” on the applicant’s conviction history. Companies wishing to do so must first prepare an “individualized assessment” of whether the employee’s criminal history will have a “direct and adverse” relationship to the position’s duties. If not, the criminal history cannot be considered as a condition of employment. If it does (example: a person convicted of wire fraud applying for a financial management job), the employer must notify the applicant in writing of the decision, at which time, the applicant has five business days to respond before the employer can make a final decision. If the applicant challenges the accuracy of the conviction history, that person has an additional five business days to produce evidence and respond to the individualized assessment.

While AB 1008 may make criminal background checking more complex, it’s vital to work within the parameters of the law and protect the business from unpleasant surprises regarding employee criminal activity. The National Employment Law Project estimates that one out of three California adults has an arrest or conviction record.

To avoid running afoul of the new laws (which also limit what potential employers can ask about salary history), many companies are turning to professional third-party background screening companies such as Ontario, California-based DataCheck that understand the new rules and statutes. Even if you’re not hiring in California, 30 states and approximately 150 cities and counties have adopted some sort of “fair chance” hiring laws. Ensure you’re not inadvertently breaking these laws by offering training for your HR workers and calling in the help of professional background checking services.

Contact us today!