B BEST A Guide to Understanding a Criminal Record and PRACTICES Hiring a Person with a Criminal History HANDBOOK We ask that the employer community comes together in promoting best practices that will properly balance the mutual interest of workers and employers in more accurate criminal background checks for employment. CONTENTS WELCOME …………………………………………………….. 2 OVERVIEW ……………………………………………………. 3 THE IMPORTANCE OF HIRING A PERSON WITH A CRIMINAL HISTORY 4-5 CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT 6-9 - Why employers do Criminal Backgrounds - When is a Criminal Background Required - Negligent Hiring - The Job Application and the Interview CONDUCTING A CRIMINAL BACKGROUND 10-14 - National Consumer Law Center (NCLA) findings on Criminal Backgrounds - Database Searches and the problems - Fair Credit Reporting Act (FCRA) - Best Practice Tips UNDERSTANDING A CRIMINAL HISTORY 15-37 - The Creation of a Criminal Record - Comparing Criminal Background Reports - Reading the Report; Understanding Charge(s) and Disposition(s) - Arrest vs. Conviction - Individualized Assessment; Assessing Convictions PARDONS AND EXPUNGEMENTS 38-41 - An Executive Pardon; Eligibility for a Pardon - Expungement of a Criminal History - APEX Program (Advancement through Pardons and Expungements) FEDERAL AND STATE POLICY 42-44 - EEOC Enforce Guidance on the consideration of Arrest and Conviction Records - State Department of Labor Incentive Programs for hiring people with a Criminal History - Department of Health and Social Services Criminal Background Check Unit GLOSSARY OF TERMS 50-53 REFERENCES 54 NOTE: The content of this Guidebook is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking assistance should contact a lawyer. Cre at e d by Anton Asso c iat e s 2 01 2 Page 1 WELCOME Welcome to the first edition of the Best Practices Employer Handbook, a publication devoted to providing a better understanding of how to request and interpret a criminal record, as well as helpful information when hiring a person with a criminal history. Introduction: For the person searching for employment a criminal history has become a major barrier to securing employment, overshadowing any qualifications the individual may have, such as education and work experience. In a recent survey executed by the Society for Human Resource Management (SHRM), July 2012, approximately 87% of employers responding, conduct criminal background checks for some or all potential employees. With nearly one-in-four adults having a criminal history, moving forward into employment has been nearly impossible. Some of these individuals have committed serious crimes, while others committed minor offenses. There are those that have not committed any crime; they were found not guilty of the charge, but the charge has not been expunged from their record. Furthermore, the FBI estimates that 50% of criminal records contain errors. As such, employers should hesitate to take criminal history reports at face value and refrain from immediately eliminating applicants based on their criminal records. Employers should also take into account the effects of their hiring decisions on society at large. Stable employment has the effect of lowering reoffending rates. As such, hiring ex-offenders will improve public safety and quality of our life in our communities. Our goal is to provide awareness of this critical issue and to ask that the employer community comes together in promoting best practices that will properly balance the mutual interest of employees and employers with a fairer and more accurate screening process. NOTE: The content of this Guidebook is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking assistance should contact a lawyer. Cre at e d by Anton Asso c iat e s 2 01 2 Page 2 OVERVIEW A guide created to assist employers interested in hiring a person with a criminal background, designed to help inform employers of the benefits, while addressing the questions and concerns they might have. This handbook developed by Anton Associates, is entitled: Best Practices, A Guide to Understanding a Criminal Record and Hiring a Person with a Criminal History. OBJECTIVES  Providing Best Practices for conducting a background check.  Providing a better understanding regarding the inaccuracy in the reporting of criminal backgrounds.  Providing a better understanding on how to read and interpret a criminal record.  To encourage the hiring of people with a criminal background, so they are able to integrate back into society in a productive manner.  To encourage employers to review their background and screening policies and practices, so potential applicants are not excluded based on their criminal history.  To encourage employers to develop and implement individualized assessments so those with criminal records are able to move forward with employment, while maintain a safe workplace environment. NOTE: The content of this Guidebook is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking assistance should contact a lawyer. Cre at e d by Anton Asso c iat e s 2 01 2 Page 3 THE IMPORTANCE OF HIRING A PERSON WITH A CRIMINAL HISTORY  Since 9/11 research has shown that employers have often been unwilling in hiring a person with a criminal record and therefore, those with a criminal record are finding it harder and harder to secure employment.  The outcome has been that 65 million adults in the United States, have struggled to become employed because of their criminal record. You may obtain a copy of “65 Million “Need Not Apply” The Case for Reforming Criminal Background Checks for Employment at National Reentry Resource Center’s website - http://www.nationalreentryresourcecenter.org.  For over 10 years a variety of criminal record employer restrictions were imposed with employers stating on pre-employment job applications –  No Arrests  Clean or Clear Record Required  No Felony Convictions  No Felony or Misdemeanor Convictions  Must pass background check  The tight job market, upsurge in background checks and a growing number of people with criminal records resulted in the new guidelines set forth by the Equal Employment Opportunity Commission (EEOC), as these blanket hiring restrictions began to challenge the integrity of criminal background checks, keeping many qualified applicants from obtaining employment.  A criminal background check certainly brings a sense of safety and security to an employer, but it also creates a barrier for many people who would pose little to no risk to an organization.  Rejecting all applicants with criminal records is unreasonable, these blanket exclusions fail to take into account critical information, including the nature of an offense, the age of the offense, or its relationship to the job, as such, and they are generally illegal.  Today, a person’s interaction with a minor arrest or conviction has resulted in their reduced likelihood of a job callback or offer by nearly 50 percent.  Research indicates after seven (7) years there is little to no distinguishable difference in risk of future offending between those with an old criminal record and those without any criminal record.  Because of the disproportionate number of minorities with arrest and conviction records, the U.S. Equal Employment Opportunity Commission narrowly limits the use of arrest records in employment decisions, and only permits the consideration of convictions when there is a legitimate business necessity.  The EEOC does not prohibit the use of background checks, but it requires employees to consider the relationship between an arrest or conviction and the job applicant’s fitness for the particular job. Cre at e d by Anton Asso c iat e s 2 01 2 Page 4 On April 25, 2012, the United States Equal Employment Opportunity Commission issued is Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Uniform Guidelines include the three different approaches (Green Factors) to validating employment: The EEOC has required that employers consider the three Green Factors when evaluating a criminal conviction: 1. The nature & gravity of the offense or conduct; - Consideration of the relevance of the record and the risks, if any, for the position the person is applying for. 2. The time elapsed since the offenses, conduct, and/or completion of sentence; - While there are no specific timeframes for criminal conduct exclusions in the new guidelines, the amount of time passed since the criminal conduct occurred and the risk posed in the position applied for should be taken into consideration. 3. The nature of the job held or sought. - Identifying the essential functions of the job, the circumstances under which the job is performed (level of supervision, interaction with co-workers or vulnerable individuals) and the environment in which the job duties are performed (out of doors, in a warehouse, in a private home.) Additionally, if the applicant was arrested for an offense, but not convicted, an employer must consider the likelihood of whether the applicant actually engaged in the alleged conduct. Read more about the EEOC’s New Guidelines under the Federal and State Policy in the guidebook on page 42. Cre at e d by Anton Asso c iat e s 2 01 2 Page 5 CRIMINAL BACKGROUND CHECKS Why Employers do Criminal Backgrounds  Society for Human Resource Management (SHRM), reported, July, 2012, a total of 87% of responding employers stated that they subjected all or some of their candidates to criminal background checks, this is down 5% from the survey conducted January 2010.  While employers cite federal, state and local laws, as reasons for using criminal background checks – SHRM reported that the use of obtaining criminal history information is related to ongoing efforts to reduce legal liability for negligent hiring (52%) and to ensure a safe work environment for employees (49%).  What type of criminal activity might influence the decision not to hire a job candidate? According to the July 2012 released by SHRM, the top two criminal activities that are very influential in the decision not to hire a job candidate are a convicted violent felony (96%) and a convicted nonviolent felony (74%). When is a Criminal Background Required  The Department of Justice’s Survey of State Criminal History Information Systems stated that fifty (50) states reported that criminal history background checks are legally required for one or more of the following positions. - Nurses/elder caregivers - Daycare providers - Individuals who live in the residences of home-based daycare providers - School Teachers - Nonteaching school employees - Volunteers working with children - Prospective foster care parents - Prospective adoptive parents - Relative caregivers - Nonteaching school personnel - Hazardous materials licensees  In the state of Delaware, a criminal history background check is required for all of the above positions. Cre at e d by Anton Asso c iat e s 2 01 2 Page 6 Negligent Hiring  Negligent hiring is based on the principle that employers have an obligation to protect their employees and clients from injury caused by their employees, holding employers liable for harm their employees inflict on others. Because of the circumstances of the employment, it should have been predicted that the employee would pose a threat of injury to others.  The court will ask the following questions: 1.) Did the employer know or should have known of an employee’s potential risk? or 2.) Could the risk have been discovered by a reasonable investigation?  Most negligent hiring lawsuits maintain that the employer failed to conduct an appropriate investigation of the employee into personal and job references, criminal histories and other background information that would have revealed the employee's past misconduct.  Thirty-six (36) of the fifty (50) states allow people to bring cases against employers for negligent hiring, and the standards for establishing a claim vary from state to state. However, the key elements of a negligent hiring claim that are consistent across jurisdictions, and must be proven in any case are: (1) Duty of Care; and (2) Foreseeability.  Under Delaware law, for an employer to be held liable for negligent hiring, retention and training, the employer must have known, or in the exercise of reasonable care should have known, that the employee had a tendency to cause harm.  Employers can be held liable for facts that are known or "should have been known" regarding an employee's character or job-related experience, so when developing a comprehensive background on an employee/potential employee “Due Diligence” is required.  Due diligence refers to the duty of care the employer takes to hire individuals that would not pose a threat or safety risk to other employees and individuals.  If due diligence of the background check fails to reveal such information that the person would be a risk or harm, you can hire the employee without being presumed negligent.  The basis for liability is to show that the employer acted carelessly in hiring a criminal for a job that the employer should have expected would expose others to harm. Cre at e d by Anton Asso c iat e s 2 01 2 Page 7 Examples of Negligent Hiring  Example 1: An ice cream sales company hires a man convicted of sexually assaulting a minor to drive its ice cream truck and sell ice cream to children. The business is likely liable because it was negligent in hiring a man known to have assaulted minors, and then giving him access to those minors as customers.  Example 2: An elder care facility hires a woman convicted of fraud and identity theft against elderly people to look after and care for the facilities patients. The business is likely liable because it was negligent in hiring a woman who was already convicted of scamming the elderly and giving her access to potential victims.  Example 3: A cable company hires a man without a background check and directs him to go to customer's houses and install cable equipment. It turns out he's been convicted twice of rape, and while at a customer's house to install equipment, he rapes the occupant. The business is likely liable because it was negligent in hiring someone who has access to private houses without a background check, as well as being liable for hiring someone with a history of rape to meet privately with customers in their home. Minimizing the risk of Negligent Hiring  Applicants complete a standard employment application, which requires an explanation of all employment gaps, the reasons for leaving, and each past direct supervisor’s contact information.  Contact past employers to verify the information provided on the application.  Some employers are reluctant to share negative information about past employees for fear of defamation claims. However, employers furnishing negative references are not subject to liability for defamation, provided the statements are made with the consent of the employee, and are not made with malice.  Criminal background check, when necessary. However, if conducting a criminal or on-line background check, use a reputable vendor to provide a thorough review of the applicant’s background.  When the job requires driving, do a motor vehicles check to discover any suspensions or revocations, DUI’s, or other serious infractions.  Conduct a pre-employment drug screen, notifying the applicant in writing of your intent to administer a drug test. A copy of any positive test result must be given to the prospect.  All detailed records of the steps taken to investigate the applicant’s history should be retained in the employee’s personnel file, along with any other reports relied on in making the hiring decision. Cre at e d by Anton Asso c iat e s 2 01 2 Page 8 The Job Application  It is recommended that employers use a job application form in addition to a resume.  An application ensures uniformity and requires all needed information.  An employer should include a statement on the application that Criminal Records do not automatically disqualify an applicant from securing employment.  Include a statement that falsification of any answers or any material omissions are grounds for discharge no matter when discovered  When a record has been expunged the individual may truthfully say that he/she has not been convicted of a crime. An expunged record may still show up in criminal background checks conducted by for-profit companies. Allowing the person to show all paperwork for expunged and pardon convictions is advisable. The Interview  If the applicant has answered yes to a criminal history question on an application, you may ask about the nature of the offense and time elapsed since the offense.  This is an awkward moment for the applicant and the interviewer, as the interviewer it is important to be mindful of your body language, eye contact, facial expressions and energy, as not to make it uncomfortable for the applicant to explain. No one wants to feel like they are being judged.  Allow the applicant to provide a brief explanation of what happened, including what they have learned, how they have changed their life around, etc. Has the applicant realized the mistake made, regretted their action and made an effort to change their life?  As an employer you are looking for an explanation where the person takes responsibility for what they did and does not deny their role in what happened resulting in their criminal conviction. You are interested in hearing what the applicant has done to make the change.  How much time has passed since the applicant had the arrest or conviction and what have they done to make changes in their life?  And now, move on. This is the point where you (the interviewer) want to recap the things the applicant has done to change their life around, all the positive things they talked about. It will allow the applicant to feel this ended on a positive note. It will ease the tension and make the rest of the interview more comfortable for both of you. So move on with the interview, you do not need any more information regarding their criminal history at this time. Cre at e d by Anton Asso c iat e s 2 01 2 Page 9