ban the box how to comply webinar

Ban the Box – How to Comply With a Myriad of State and Local LawsPresenters:Pamela Q. DevataPaul H. Kehoe

Seyfarth Shaw LLP

November 12, 2015

©2014 Seyfarth Shaw LLP 2

Disclaimer

• This presentation has been prepared by Seyfarth Shaw LLP for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Participants should not act upon this information without seeking professional counsel. The material discussed during this webinar should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained here in (including any attachments) is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.

©2014 Seyfarth Shaw LLP

Presenters

• Pamela Devata, Seyfarth Shaw LLP

• Paul Kehoe, Seyfarth Shaw LLP


Agenda

• Ban The Box• EEOC’s Criminal History Guidance & Compliance• State Level Statutes

• Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon (Jan. 2016), Rhode Island, Washington, DC

• Local Ordinances• San Francisco, CA• Chicago, IL• Baltimore, Montgomery County & Prince Georges County, MD • Columbia, MO• Buffalo, New York City & Rochester, NY • Philadelphia, PA• Seattle, WA

• Best Practices to Mitigate Risk

4 |


EEOC’s Criminal History Guidance & Compliance• No Bright Line Rules

• “We don’t hire any felons for any positions”

• 3 factor test based on case: Green v. Missouri Pacific RR• Nature and gravity of the offense• Nature of the job• Time elapsed since the conviction or completion of sentence

• When to ask?• Consider removing from application• Ban the box – Best Practice• Only request the information that is necessary to making the

employment decision

• Individualized Assessment5 |


Individualized Assessment

• Individualized assessment• EEOC recommends an “individualized assessment” of applicants • Though not “required,” employers will need to evaluate if there are any criminal

offenses that have a “demonstrably tight nexus to the position in question” such that an individualized assessment may be circumvented

• Evidence an employer should review:• facts or circumstances surrounding the offense or conduct;• number of offenses for which the individual was convicted;• older age at the time of conviction, or release from prison;• evidence that the individual performed the same type of work, post conviction, without any

known incidents of criminal conduct;• length and consistency of employment before and after offense;• rehabilitation efforts; • character references; and• whether individual is bonded under a federal, state, or local bonding program

• Large change for employers

6 |


Hawaii

• When to ask?• After conditional offer

• Time Limitation?• 10 years

• Carve Out For Federal & State Laws?• Yes; Where a state or federal law requires an employer to

consider or prohibits an employer from hiring an individual with certain criminal records


Illinois

• When to ask?• After applicant selected for an initial interview or conditional offer

• Number of employees – 15

• Time Limitation?• None




Massachusetts

• When to ask?• After initial written application• BUT, MCAD interprets this to mean after the first interview

• Time Limitation?• Misdemeanors over 5 years old, unless convicted of another offense within 5

years

• Carve Out For Federal & State Laws?• Yes; Where a state or federal law requires an employer to consider or prohibits an

employer from hiring an individual with certain criminal records

• Other?• No inquiries regarding first convictions for drunkenness, simple assault, speeding,

minor traffic violations, disturbing the peace• Prior arrests, court appearances and adjudications in all cases of delinquency or

as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution


Minnesota

• When to ask?• After applicant selected for an initial interview or conditional offer

• Number of employees – All private employers


• Carve Out For Federal & State Laws?• Yes; Where a state or federal law requires an employer to consider or

prohibits an employer from hiring an individual with certain criminal records


New Jersey

• When to ask?• After the first interview


• Time Limitation?• Depends on the crime




Oregon (Jan. 2016)







Rhode Island

• When to ask?• During the first interview or thereafter






Washington, D.C.


• Number of employees - 10




• Other?• If applicant requests explanation, employer must provide all records and

statement of denial for each factor listed in ordinance within 30 days • Sliding scale for fines depending on size of employer


San Francisco, CA

• When to ask?• After the first interview or conditional offer

• Number of employees – 20, regardless of location

• Time Limitation? 7 years

• No inquiries about:• Participation in or completion of a diversion or deferral of a judgment program• A conviction judicially dismissed, expunged, voided, invalidated, or otherwise

rendered inoperative• A conviction or any other determination or adjudication in the juvenile justice

system• A conviction over seven years old from the date of sentencing

• Notice requirements of reason for prospective adverse action, 7 days response period prior to taking adverse action & OLSE form


Chicago, IL

• When to ask?• After applicant selected for an initial interview and notified as such or

conditional offer





• Other?• Individualized assessments – 9 factors • Identify specific information on adverse action letter


Baltimore, MD







Maryland - Montgomery and Prince George’s Counties

• When to ask?• After initial interview

• Number of employees – 15 (Montgomery); 25 (Prince George’s)




• Other?• Modify pre-adverse and adverse action letters to include reference to

specific items which form the basis of the decision• Seven-day waiting period before adverse action


Columbia, MO


• Number of employees - All private employers




• Other?• Individualized assessment – while not specifically required, decision

must be made on all available information (the Green factors and more)


Buffalo, NY

• When to ask?• Any time during the first interview or thereafter





• Must consider NY Article 23-A


New York City




• Carve Out For Federal & State Laws?• Yes; Where a state or federal law requires an employer to consider or prohibits an

employer from hiring an individual with certain criminal records

• Other?• Detailed notice procedure, including a copy of the inquiry, conducting and

providing to the applicant the Article 23-A analysis in a satisfactory form, and holding the position open for three business days


Rochester, NY

• When to ask?• After the first interview or conditional offer





• Must consider NY Article 23-A


Philadelphia, PA


• Number of employees - 10




• Other?• Can ask about pending arrests


Seattle, WA

• When to ask?• After the employer has completed an initial screening of applications to

eliminate unqualified applicants• Number of employees – All private employers• Time Limitation?

• 10 years per Washington law• Carve Out For Federal & State Laws?

• Yes; Where a state or federal law requires an employer to consider or prohibits an employer from hiring an individual with certain criminal records

• Other?• Applicants may exclude a criminal conviction that has been the subject of a

certificate of rehabilitation or other equivalent procedure based on a finding of the rehabilitation

• Must wait 2 business days after informing applicant of potential adverse employment action based on criminal history


Do’s and Don’ts

• Do: Ask after conditional offer unless federal or state law requirement

• Don’t: Ask about arrests which did not result in a conviction

• Don’t: Ask about sealed, expunged, restricted, juvenile or pardoned records

• Do: Conduct a job-relatedness inquiry

• Do: Consider centralized background screening role

• Do: Review policies, applications and procedures

• Do: Follow FCRA and specific adverse action requirements


Questions?

Contact Information:Pamela Q. Devata• SEYFARTH SHAW LLP• 131 South Dearborn Street, Suite 2400• Chicago, Illinois 60603• (312) 460-5882• [email protected]

Paul H. Kehoe• SEYFARTH SHAW LLP• 975 F. Street, N.W.• Washington, DC 20004• (202) 828-5375

• [email protected]

mailto:[email protected]

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ban the box how to comply webinar

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