My Candidate has a Criminal Record.
Now What?
Presenter • Jason Morris • President & Chief Operating Officer Nick Fishman Executive Vice President & CMO
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“You can't drive down the street in suburban American without noting the businesses in your shopping plaza that have been hit: Home Depot, Aaron’s Furniture, Whole Foods, CVS, Panera, Nine West, A.M.C., and so on.” - Scott Paler
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4 Steps to Compliance How to determine whether you should hire a candidate with a criminal record How to comply with the EEOC guidance on Green Factors & Individualized Assessment Best way to execute the Adverse Action process
Handling candidate disputes
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Legal Considerations
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EMPLOYERS WANT TO KNOW UP FRONT
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Self-Disclosure Persists on Applications Does your company ask candidates to divulge criminal history? (Select one.)
20%
5%
Yes, on the application
53%
7%
Yes, after an offer is m ade Yes, during the interview
15%
No, w e do not ask candidates about criminal history Other
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BAN THE BOX IN ILLINOIS @employeescreen #screeningtrends2015
BAN THE BOX: What you need to know to protect your business.
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How Do You Make Your Hiring Decisions?
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Hiring Matrix: Yes or No?
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EMPLOYERS LOOK BEYOND CRIMINAL RECORDS @employeescreen #hiring
EEOC Sues Dollar General In the Dollar General complaint, the commission focuses on a hiring matrix designed by the Defendant with its background screening provider that identifies specific felonies and misdemeanors that will disqualify a candidate. The EEOC claims that Dollar General’s matrix violates the guidance because it is not job-related and consistent with business necessity. @employeescreen #hiring
EEOC Guidance Overview
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Individualized Assessment in the Real World
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72% APPLICANTS GET A CHANCE TO EXPLAIN
28%
Y E N S O
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EEOC Targets BMW for Criminal Background Checks In the BMW case, the company re-screened existing employees who were reassigned to work in a different plant based on a change in contractors. Of the 645 workers who were rescreened, 55% were black and 45% were non-black. The complaint alleges that after screening the workers, BMW denied plant access to a total of 88 employees – around 14% of all employees screened. Of those 88 employees, 70 (80%) were black and 18 (20%) were non-black. The complaint says “BMW also excludes from employment individuals with criminal convictions, involving “theft, dishonesty, and moral turpitude” and “makes no distinction between felony and misdemeanor convictions.” @employeescreen #hiring
Adverse Action In cases where you decide not to hire someone based on information in their background check, what follow-up action does your company take? (Select one.) We send both the pre-‐adverse action and adverse action notice
35%
42% 18%
5%
We send only a pre-‐adverse action notice We send only an adverse action notice We don't send either of these notices
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PRE-ADVERSE ACTION NOTIFICATION • Copy of the Report
STEP 2
STEP 1
Adverse Action
ADVERSE ACTION • Summary of Rights
• Summary of Rights
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Is Mickey Mouse in Trouble? Disney Defends Its Background Screening Policies The company known for their signature character, Mickey Mouse, is defending a class action claim based on questions about its background screening policies. The suit against Disney was filed in the Superior Court of California on November 1, 2013, and the complaint alleges that Disney’s policy for notifying applicants about background checks has violated the Fair Credit Reporting Act (FCRA). @employeescreen #hiring
Adverse Action in the Real World
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Dispute Process: It Wasn’t Me What is it
?
Why do you do it
?
How do you it
? @employeescreen #hiring
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Disputes in the Real World What do you do when an applicant tells you the report is wrong? How long do you need to wait for the applicant to clear the report? Can you fill the position?
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Questions?
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Takeaways/Checklist Summary Be aware of the legal considerations when establishing company policies for deciding whether to hire a candidate with a criminal record. Consult with legal counsel as needed. Decide whether criminal records would disqualify a candidate for each specific position, and create hiring guidelines or a decision matrix to help hiring managers make fair and consistent decisions. Your company should have an individualized assessment process in place whether it’s in person, via email, or phone. Understand the two-step adverse action process and make sure it’s in place within your company. Understand the steps to take when a candidate has a dispute with information found in a criminal background check. Talk to your screening provider about options for outsourcing individualized assessment, adverse action, and adjudication services.
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Legal Disclaimer: The information provided should not be construed as legal advice and participants are encouraged to seek the services of their attorney for assistance with specific legal issues.
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