the assault on criminal-background checks presented by: aloysius hogan, of counsel & registered...
TRANSCRIPT
The Assault on Criminal-Background Checks
Presented by:Aloysius Hogan, Of Counsel & Registered LobbyistJackson Lewis LLPCell: 202-957-9400Email: [email protected]
toAlarm Industry Communications Committee MeetingKey Bridge Marriott in Arlington, VirginiaSeptember 8, 2011
Copyright 2009 Jackson Lewis LLP
THE ISSUE
Should employers
be able to do
criminal-
background
checks on job
applicants?
Copyright 2009 Jackson Lewis LLP
THE ISSUEDisambiguation:
Do not confuse the
separate issue of
access to the FBI
database with the
EEOC-style
assaults on
background
checking.
Copyright 2009 Jackson Lewis LLP
WHY IMPORTANT
WHY IMPORTANT:
Criminal-background checks on
job applicants are common and
increasingly used by
employers to try to
• Protect their employees, their
customers, and the public at-
large;
• To minimize exposure to
potential legal liability; and
• To protect their assets.
Copyright 2009 Jackson Lewis LLP
• In Aug. 2004, SHRM reported 61% of HR professionals find inaccuracies in resumes after carrying out background checks.
WHY IMPORTANT
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• In April 2006, New York Times reported on a study conducted by ResumeDoctor.com that found 43% of resumes had one or more "significant inaccuracies," while 13% had two or more.
WHY IMPORTANT
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67% of U.S. job applicants’ résumés contain material misrepresentations.
WHY IMPORTANT
:
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• Reliable criminal-
background
checks can be a
critically
important
safeguard.
WHY IMPORTANT
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HOW PREVALENT ARE BACKGROUND CHECKS?
• The Government
Accountability Office
reports the
Consumer Data
Industry Association
2003 statistic:
The three major
Credit-Reporting
Agencies provide
approximately
two billion reports
annually
in the marketplace.
• Additionally, millions of criminal-background checks are performed each year.
Copyright 2009 Jackson Lewis LLP
HOW PREVALENT ARE BACKGROUND CHECKS?
•A member survey conducted in 2003
by the
Society for Human Resource
Management
revealed that
80% of its
organizations
conduct criminal-
background checks,
up from 51% in a 1996 survey (and
likely even higher today).
Copyright 2009 Jackson Lewis LLP
COST OF NEGLIGENT HIRING• Association of Certified Fraud
Examiners estimate in 2006
report that typically 5% of
revenues are lost to fraud,
meaning that $735 billion/year
is lost to internal fraud.
• Small businesses are the most
vulnerable, accounting for a
whopping 80 percent of all
internal fraud cases.
• Employee-committed acts are
the most common and most
expensive fraud type,
constituting >50% of all
reported cases.
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Some criminal-justice-reform
and civil-liberties advocates
vehemently support
maximizing opportunities for
criminals (ex-offenders):
• To be rehabilitated; and
• To re-enter main-stream
society as normal
citizens….
CRITICS OF CRIMINAL-BACKGROUND CHECKS
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… But at what
cost?
CRITICS OF CRIMINAL-BACKGROUND CHECKS
Copyright 2009 Jackson Lewis LLP
• … To society?
• … To employers?
• … To employees?
• … To victims?
• … To high at-risk and
vulnerable populations (e.g.
children, the disabled, and
the elderly)?
CRITICS OF CRIMINAL-BACKGROUND CHECKS
Copyright 2009 Jackson Lewis LLP
CRITICS OF CRIMINAL-BACKGROUND
CHECKS:
• Feel that employers use criminal-background checks to “discriminate” against convicted felons and impede their re-integration into society.
CRITICS OF CRIMINAL-BACKGROUND CHECKS
Copyright 2009 Jackson Lewis LLP
Studies (University of Chicago,
Georgetown) show just the opposite:
Companies that use criminal-
background checks are
• Less likely to engage in
discrimination,
• More likely to hire ex-offenders,
• More likely to hire minorities, and
• More likely to recognize their legal
responsibilities and obligations.
CRITICS OF CRIMINAL-BACKGROUND CHECKS
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• “Citizen re-entry” advocates criticize criminal-background checks in 1. Employment;2. Credit;3. Housing; and4. Voting.
CRITICS OF CRIMINAL-BACKGROUND CHECKS
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1.UCLA School of Law-A New Way of Life Prisoner Re-Entry Initiative
2.The Constitution Project—Ginnie Sloan, President
3.NationalHelping Individuals with Criminal Records Re-enter through Employment Network
4.National Employment Law Project5.National Reentry Consortium6.Reentry.net7.The Safer Foundation—
Diane Williams, CEO
Serving People from Arrest to Reintegration
CRITICS OF CRIMINAL-BACKGROUND CHECKS
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RECIDIVISM STATISTICS
• The U.S. Department of Justice tracked the
rearrest, re-conviction, and re-incarceration
of former inmates for 3 years after their
release from prisons in 15 States.
• Crimes with the highest re-arrest rates were
• Robbery (70.2%), • Burglary (74.0%), • Larceny (74.6%), • Motor-vehicle theft (78.8%), • Possession or selling of stolen property
(77.4%), & • Possession/use/sale of illegal weapons
(70.2%).
Copyright 2009 Jackson Lewis LLP
• Nearly 70% of drug-abusing
offenders return to prison within
three years of their release.
(Langan & Levin, 2002)
RECIDIVISM STATISTICS
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DRAMATIC INCREASE
Dramatic Increase in Negligent-Hiring Claims,
and…
• Employers lose 70% of negligent-hiring cases
• Average jury verdict in such cases is $1.6 million
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A BALANCING TEST
•Potential liabilities if you hire…
•Potential liabilities if you don’t…
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“GOLDEN RULES”
• Criminal-background checks may violate anti-discrimination laws if conducted incorrectly.
• A federal decision in the 3rd Circuit Court of Appeals in 2007, styled El v. SEPTA, marked a serious departure from past treatment, stating that “common sense”-type reasoning is not enough to survive a discrimination lawsuit.
Copyright 2009 Jackson Lewis LLP
“GOLDEN RULES”• In El v. SEPTA, the court said that criminal-risk-based screening, while legally permissible, requires the employer to show it analyzed the risk both qualitatively and quantitatively. a) The qualitative assessment
considers what the harm could be for a specific job.
b) The quantitative assessment considers the likelihood that the harm will occur.
Copyright 2009 Jackson Lewis LLP
RECIDIVISM – WITHIN 3 YEARS•650,000 released inmates/yr.
•More than half (51.8%) back in prison
•61.7% rearrested for violent crimes regardless of what their offense was
•Nearly 70% (67.8%) arrested[More than 80% of crimes go unsolved]
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RACIAL ISSUE?YES – But in the right direction:
•11.2% of jobs filled by African-American males when employers do criminal-background checks
•Only 3.3% when they do not
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RACIAL ISSUE?Overall, employers doing criminal-background checks are more than 50% more likely to hire African-Americans than employers who do not (24% versus 14.8%)
Copyright 2009 Jackson Lewis LLP
THREATSThreats to Employer Rights to do Criminal-Background Checks
•Federal Administration•State legislation•Private lawsuits•Public lawsuits•American Bar Association resolutions
Copyright 2009 Jackson Lewis LLP
There has been significant state activity in:
• Oregon;
• Pennsylvania;
• Connecticut;
• Massachusett
s;
• Minnesota;
• New Jersey;
• Ohio;
• Hawaii, et al.
STATE AND LOCAL DEVELOPMENTS
Copyright 2009 Jackson Lewis LLP
•Criminal-background checks & credit-background checks face parallel threats, with credit checks being a harbinger.
STATE AND LOCAL DEVELOPMENTS
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• In the past couple of years, about 20 states have considered bills to limit the use of credit report data for employment screening.
• These include: California, Connecticut, Florida, Georgia, Indiana, Kentucky, Michigan, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Texas, and Vermont.
STATE AND LOCAL DEVELOPMENTS
Copyright 2009 Jackson Lewis LLP
1. Convictions within the past 10 years;
2. Bearing a rational relationship to the
duties and responsibilities of the position;
and
3. Only after a conditional offer of
employment has been made.
In 1998, Hawaii’s Act 175 limited employers’ criminal-historyinquiries to:
1998
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
City of Chicago Hiring
Guidelines
• Chicago Dept of Human Resources —as recommended by the Mayoral Policy Caucus on Re-entry — removed the criminal history question from its employment applications, and deferred the criminal-background check until later in the process.
• What you see government imposing on itself is a harbinger of what you will see government trying to impose on the private sector.
Feb. 2007
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• In 2007, Connecticut
passed an anti-
criminal-background-
check law as an
eleventh-hour
amendment to an
unrelated bill.
• The effective date
was delayed, and the
bill was subsequently
repealed.
2007
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• It was widely
reported that a
Connecticut school
district hired a
convicted pedophile
as a teacher/coach.
TIMELINE OF OBSTACLES
2007
Copyright 2009 Jackson Lewis LLP
• The ABA considered
endorsing
bans/restrictions on
criminal-background
checks, but these
repeated efforts
fortunately fell short.
(Sometimes)
TIMELINE OF OBSTACLES
2003-Present
Copyright 2009 Jackson Lewis LLP
• U.S. Conference of Mayors
convened a ground-breaking
national summit on 2-28-08
designed to promote effective
strategies for connecting
formerly incarcerated
individuals to the labor
market.
February 28, 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
RECOMMENDATIONS: EMPLOYMENT
1. Create a federal human rights standard prohibiting flat bans against hiring qualified people with criminal histories;
2.Prohibit employers from
“inquiring about or using
information about arrests that
did not lead to conviction or
missing dispositions on
criminal record reports issued
by the Federal Bureau of
Investigation (FBI).”
Legal Action CenterNational H.I.R.E. NetworkOctober 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
RECOMMENDATIONS: EMPLOYMENT
3. Enact a federal standard
for employers based on
EEOC recommendations on
the use of background
checks;
• [EEOC Chair Stuart Ishimaru
has proposed – and strongly
supports – this.]
Legal Action CenterNational H.I.R.E. NetworkOctober 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
RECOMMENDATIONS: EMPLOYMENT
4. Require a criminal-record waiver/appeal process for inaccuracy challenges, rehabilitation evidence, and mitigating information;
5.Designate an independent body, rather than individual employers, to make fitness determinations; and
6.Graduate consideration of criminal record based upon severity of crime; and/or passage of time (e.g. seven years).
Legal Action CenterNational H.I.R.E. NetworkOctober 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• EEOC holds a hearing to entertain views on how
employers actually use criminal records in
making employment decisions and on how EEOC
should revise its compliance manual.
• EEOC circulates new draft guidance on
background checks in employment decisions.
• Timetable for the guidance is uncertain.
November 2008
November, 20, 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
DIANE WILLIAMS
• CEO of the Safer Foundation in Chicago, nonprofit helping ex-offenders find jobs.
• ADVOCATES CHICAGO’S “BAN THE BOX” — removing the criminal conviction question from the employment application and only utilizing it later in the process.
Diane Williams
November 20, 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
•Municipalities adopting “ban the box” include:
1. Chicago,2. Boston,
3. San Francisco,4. Baltimore,
5. Minneapolis,6. St. Paul,
7. Philadelphia
•Numerous other municipalities are considering “ban the box”
Current
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
Diane Williams:
• Gov’t should ask about employers' background-check policy in whether to award a government contract.
• EEOC needs to prohibiting employers from using info about arrests that did not lead to conviction.
• Federal standards should be adopted, based on the EEOC guidance saying “business necessity” must involve :A. The nature of the crime, B. Time elapsed since the crime/prison release, & C. The nature of the job at issue.
Diane Williams
November 20, 2008
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
1. Include Hawaii Department of Education
(including the state public library system)
volunteers in close proximity to children;
and
2. Require the Department to establish &
maintain a criminal-history database for
internal use.
Introduced 1/21/09, Hawaii’s stalled (assertedly as too costly) SB 16 attempts to EXPAND employers’ criminal-historyinquiries to:
January 21, 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• Ex-offenders’ advocates seek federal legislation to restrict employers’ criminal-background checks.
• Rep. Bobby Scott (D-VA) chairs
the U.S. House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.
• The summit was orchestrated by Ginnie Sloan, President of The Constitution Project.
Rep. Scott headed up a 3-3-09 “summit” on criminal-offender re-entry issues/legislation.
Rep. Bobby Scott
TIMELINE OF OBSTACLES
March 3, 2009
Copyright 2009 Jackson Lewis LLP
• Manpower posted this ad for
an April 1st, 2009, hiring day
at the Alameda (California)
One Stop Career Center for
600 Bank of America seasonal
jobs.
March 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• On American Bar
Association call Acting
Chair Stuart Ishimaru
reiterates EEOC is
continuing to
examine need for
more guidance on
employers’ use of
criminal records and
credit histories.
April 8, 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• EEOC Acting Chair Stuart
Ishimaru states on an
American Bar Association
conference call that,
“We're looking
at possible
litigation
vehicles that
may be ways to
look at this
problem as
well.”
April 8,
2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• On June 9, 2009, NELP wrote the EEOC re
this ad.
• 15 groups total signed the letter, including
the Leadership Conference for Civil Rights.
• The groups seeks limits on criminal-history
checks.
”
”
“
“
June 9, 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• US Chamber sends alert re EEOC complaint on alleged disparate impact of using credit & criminal history background checks in hiring.
• EEOC reached back to 2001, when complainant applied for job in 2007.
• Freeman Company believes their situation is being used as a test case by the EEOC.
July 31, 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• Have you have had similar EEOC issues?
• Is EEOC becoming more aggressive in challenging employment criteria?
• Does this have broader implications beyond pre-employment screening & background checks to ANY subjective criteria?
July 31, 2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• EEOC Acting Chair
Stuart Ishimaru
makes good on his
statement that the
EEOC was looking at
possible litigation
vehicles by filing
suit in EEOC v.
Freeman
(referenced in the
US Chamber’s
alert).
Sept. 30,
2009
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• The PHRC invites comments on its proposed guidance presuming the disparate impact element of a prima facie case of unlawful discrimination under the Pennsylvania Human Relations Act (PHRA).
• Should an employer reject a Black or Hispanic applicant because of his or her criminal record, the PHRC would presume the rejection is due to discrimination.
TIMELINE OF OBSTACLES
Nov. 27,
2009
Copyright 2009 Jackson Lewis LLP
• Could significantly constrain PA employment background checks, hampering efforts to provide safe work environments for employees and others.
• Certain regulated industries are prohibited by statutory, regulatory & court authority from employing individuals convicted of specific offenses.
TIMELINE OF OBSTACLES
Nov. 27,
2009
Copyright 2009 Jackson Lewis LLP
• The PHRC would allow the presumption of disparate impact to be rebutted by employers, “upon an appropriate showing of relevance, with conviction data from a more limited geographical boundary than the Commonwealth of Pennsylvania (e.g. the relevant city, census region, or county) or conviction data for the specific crimes being screened by the respondent.”
TIMELINE OF OBSTACLES
Nov. 27,
2009
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Letter from Pennsylvania Attorney General to PHRC
March 9, 2010
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• ALEC’s Commerce,
Insurance, and Economic
Development Task Force
adopts a policy, drafted
by Jackson Lewis,
supporting the freedom
of employers to perform
background checks.
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
• In January 2011, the U.S. Attorney General convened a Cabinet-level federal interagency Reentry Council.
• The Council represents significant Administration commitment to coordinating reentry efforts and developing effective reentry policies.
TIMELINE OF OBSTACLES
January, 2011
• The first meeting included 7 Cabinet officials and other key Administration leaders from 18 departments & agencies.
• EEOC Chair Berrien has been active.
Copyright 2009 Jackson Lewis LLP
TIMELINE OF OBSTACLES
January, 2011
REENTRY COUNCIL GOALS(http
://www.nationalreentryresourcecenter.org/)• To identify research and evidence-based practices, policies,
and programs that advance the Reentry Council’s mission around prisoner reentry and community safety.
• To identify Federal policy opportunities and barriers to improve outcomes for the reentry population.
• To promote Federal statutory, policy, and practice changes that focus on reducing crime and improving the well-being of formerly incarcerated individuals, their families and communities.
• To identify and support initiatives in the areas of education, employment, health, housing, faith, drug treatment, and family and community well-being that can contribute to successful outcomes for formerly incarcerated individuals.
• To leverage resources across agencies that support this population in becoming productive citizens, and reducing recidivism and victimization.
• To coordinate messaging and communications about prisoner reentry and the Administration’s response to it.
Copyright 2009 Jackson Lewis LLP
• Senators Patrick Leahy (D-VT) and Rob Portman (R-OH) in June 2011 introduced S. 1231, the Second Chance Reauthorization Act of 2011.
• Judiciary Cmte reported it in July 2011.
• This bill does NOT currently address background checks, but COULD serve as a vehicle for such because it is backed by many of the same groups pushing the reentry agenda of limiting background checks.
TIMELINE OF OBSTACLES
July 21, 2011
Copyright 2009 Jackson Lewis LLP
• Meeting of July 26, 2011 - EEOC to Examine Arrest and Conviction Records as a Hiring Barrier
• Awful 8 to 1 witness ratio
July 26, 2011
TIMELINE OF OBSTACLES
Copyright 2009 Jackson Lewis LLP
HOUSE JUDICIARY COMMITTEE
• Staff discusses background checks
• Oversees civil liberties generally &1.Bureau of Justice Statistics
data,2.U.S. Commission on Civil
Rights,3.DOJ Civil Rights Division
• Does NOT oversee EEOC• Says no hearings likely this
year• Might consider oversight
hearing for next year
July/August,
2011
HOUSE OF REPRESENTATIVES
Committee JurisdictionBudget Views & Estimates
Copyright 2009 Jackson Lewis LLP
HOUSE ED & WORKFORCE CMTE
• John Kline, Minnesota (Chairman)• Has not committed definitely to any background-
check hearings
Health, Employment, Labor, and Pensions Subcmte
• Phil Roe, Tennessee (Chairman)• Robert Andrews, New Jersey (Ranking Member) • has jurisdiction over
1. Bureau of Labor Statistics,2. EEOC, and 3. All matters related to equal employment
opportunity and civil rights in employment.
HOUSE OF REPRESENTATIVES
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EEOC COMMENT BY 4 ATTORNEYS GENERAL
Comment from AR, RI, GA & WI AG’s
Copyright 2009 Jackson Lewis LLP
EEOC COMMENT BY 4 ATTORNEYS GENERAL
Key Point from AR, RI, GA & WI AG’s
“EEOC’s current policy, in place since 1987, strikes an appropriate balance between employers needs to ensure the safety of coworkers and customers on one hand, and the interests of existing and prospective employees in avoiding illegal discrimination on the other hand.”
Copyright 2009 Jackson Lewis LLP
COMMENT FROM ~60 EMPLOYER GROUPS
Key Point from Employer Groups
“As long as there is workplace violence, fraud, theft and a need to protect vulnerable populations, there will always be a need to review the criminal histories of applicants for certain positions.”
Copyright 2009 Jackson Lewis LLP
THE BOTTOM LINEDO NOT CURTAIL BACKGROUND
CHECKS!
Legislatures should NOT
enshrine in law
a FALSE presumption of
discrimination
in employers’ criminal-history
policies.
Copyright 2009 Jackson Lewis LLP
•More
information
regarding
decision-
making is a
good idea.
THE BOTTOM LINE
Copyright 2009 Jackson Lewis LLP
INVITE TO JOIN ~80 EMPLOYER GROUPS
Given your interest in the EEOC’s ongoing review of its 1987 guidance, we invite you to a meeting to discuss the activities of this ad hoc group and what the challenges may mean for your ability to rely on criminal background checks to make informed decisions and protect persons and property in the workplace and elsewhere. The meeting will take place at 3 p.m. on Wednesday, September 14, 2011 at the Venable law firm, 575 7th St NW., Washington, D.C.
Please let Aloysius Hogan, Jackson Lewis, [email protected], and Eric Ellman, CDIA, [email protected], know no later than Thursday, September 8, whether you will be able to attend this important meeting.
We have provided you with a link to the CDIA website (http://www.cdiaonline.org/Links/content.cfm?ItemNumber=10934) for additional information on the EEOC process, comments filed with the EEOC, and an outreach paper from CDIA, Creative Services, LexisNexis, and NAPBS.
Copyright 2009 Jackson Lewis LLP
QUESTIONS???
Copyright 2009 Jackson Lewis LLP
COUNCIL FOR EMPLOYMENT LAW EQUITY
• The Council for Employment Law
Equity is a 501 (c)(6) working for
employers’ rights in background
checks, arbitration in employment,
and other employment-policy
issues.
The Assault on Criminal-Background Checks
Presented by:Aloysius Hogan, Of Counsel & Registered LobbyistJackson Lewis LLPCell: 202-957-9400Email: [email protected]
toAlarm Industry Communications Committee MeetingKey Bridge Marriott in Arlington, VirginiaSeptember 8, 2011