Hiring Outside The Box

Hiring Outside The Box

The other week, a large C2 client asked our HR staff to review its employment application.  As a federal contractor, the client has employees in multiple states and for consistency prefers to utilize a single employment application for all its locations.  When we revised the application to remove the question that asked applicants to “check the box” if they had ever been convicted of a crime, the client pushed back.  As a federal contractor, many of its employees either operate in secure facilities or need security clearances.  They were shocked that we would suggest removing that question.  As we had to explain to our client, the landscape has evolved rapidly with respect to asking about applicants’ criminal histories.

  A. The Current State of the Law

In 2012 a large U.S. beverage producer was ordered to pay $3.3 million and provide job offers and manager training to resolve a claim of race discrimination filed by the Equal Employment Opportunity Commission (EEOC). The EEOC found cause to believe that the criminal background check policy disproportionately discriminated against African American candidates. The EEOC determined that 300 candidates were excluded from permanent employment because under the company’s former policy, applicants who had been arrested pending prosecution were not eligible to be hired for a permanent position, even if they had never been convicted of an offense.

Compounding the EEOC’s position, an increasing number of cities and states have adopted a fair chance hiring policy known as colloquially as “ban the box.” Currently, about 25 states and over 150 cities have adopted “ban the box” policies barring criminal history questions from government employment applications. However, this policy does not just apply to the public sector. Currently, nine states require private employers to remove all conviction history questions from job applications, and that number is on the rise, with Vermont and Connecticut joining the list in 2017.

With dizzying amounts of variations in these laws, employers (especially those, like C2’s client, that operate in multiple states) must be proactive, as failure to comply can result in lawsuits and fines that can stretch into the hundreds of thousands of dollars.

  B. What is Ban the Box?

In 1998 Hawaii passed the first “ban the box” law in the United States, prohibiting public and private employers from inquiring into an applicant’s criminal record until after a conditional offer of employment has been extended. The slogan “ban the box” derives from the question on employment applications inquiring about an applicant’s criminal history. This question is often seen in the form of a checkbox that candidates use to indicate if they have ever been convicted of a crime but often offers no opportunity for the candidate to provide additional details.

Since 1998, this movement has grown exponentially. State and local laws seek to remove conviction inquiries from job applications so that candidates are given a fair chance to compete for a position without the stigma of a criminal record.  Removing “the box” from the initial application encourages employers to consider candidates based on merit, rather than discarding an application automatically due to a conviction without knowing the age of the offense or its relevancy to the position for which the candidate is applying. It is estimated that 70 to 100 million- or as many as one in three Americans- have some type of criminal record.  Proponents of “ban the box” point to studies that show employment is a major contributing factor in reducing recidivism rates.

  C. Example of a Recent Ban the Box Law

Effective January 22, 2017, the city of Los Angeles enacted the Fair Chance Initiative Ordinance, one of the most stringent ban the box laws in the country. The Fair Chance Initiative Ordinance affects all private employers with ten (10) or more employees in Los Angeles. This law not only prevents employers from asking a candidate about criminal history until a contingent offer letter has been sent; if an employer discovers a criminal history, it must perform a written assessment that effectively links the specific aspects of the criminal history with risks inherent in the job sought by the applicant. Various factors must be considered, including the gravity of the offense, time that has elapsed, nature of the offense, and nature of the position sought. Before an employer can take any adverse action, they must engage in the “Fair Chance Process” which involves providing the applicant with written notification of the adverse employment action as well as a copy of the written assessment and any other documentation supporting the adverse action. The applicant must be given five (5) business days to provide documentation correcting or mitigating their criminal history information. If documentation is provided the employer must conduct another written assessment and inform the applicant of their decision. The position must remain open during this time.

As part of this law, multi-state employers should either completely remove questions regarding criminal history from all employment applications or amend the application to say “candidates located in Los Angeles should not answer this question.”  Starting July 1, 2017, fines associated with LA’s Fair Chance Initiative Ordinance range from $500 for the first violation up to $2000 for subsequent violations.

  D. The EEOC’S Guidance on Applicants’ Criminal Records

Title VII of the Civil Rights Act prohibits discrimination based on race, color, religion, national origin, and sex. The EEOC has adopted the position that since minorities, specifically Hispanic and African-American males, are convicted of crimes at a higher rate than Caucasian males, an employer’s use of background checks in the hiring process may disproportionally disqualify those individuals for employment. The EEOC has released examples of best practices for employers who want to use applicants’ criminal history as part of the hiring process, which include the following:

  • Employers should eliminate practices or policies that exclude people from employment based on criminal records;
  • Employers should not consider an arrest record that did not lead to a conviction; and
  • Employers should conduct an individualized analysis in utilizing conviction records in making employment decisions.

An individualized analysis should take into consideration factors such as age at the time of conviction, rehabilitation, facts and circumstances surrounding the offense and evidence that the individual performed similar work, post-conviction, without incidents of criminal conduct.

  E. How can employers avoid potential Ban the Box pitfalls?

As more and more states adopt “ban the box” legislation employers should keep a close eye on the jurisdictions in which they do business. Employers can do the following to help ensure compliance:

  • Determine which laws apply to your business;
  • Revise and reprint employment applications if necessary;
  • Review hiring policies and provide training to managers;
  • Understand how to read background checks correctly;
  • Document hiring decisions based on criminal history; and
  • Stay up to date on any changes that may affect how/when you conduct criminal background checks.

It is imperative for employers to remember that each state and local law may contain different requirements, and failure to comply can be a costly mistake. C2 continues to monitor the proliferation of these laws to help ensure that our clients remain in full compliance.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.

 

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Kevin McCoy

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Mr. McCoy serves as C2’s General Counsel, managing the overall legal needs of the company. Mr. McCoy also works closely with the company’s HR teams who provide strategic advice to clients on a myriad of human resources related matters. Mr. McCoy came to C2 as an experienced labor and employment attorney, having served as a Partner in two different D.C. area law firms that specialize exclusively in management-side labor and employment law. Mr. McCoy likes to problem solve, and enjoys helping his clients work through the legal challenges of operating a large multi-jurisdictional HR outsourcing company.

After graduating with a degree in Philosophy from Emory & Henry College in Southern Virginia, Mr. McCoy earned his law degree from Valparaiso University School of Law. Mr. McCoy began his legal career as a judicial law clerk to judges on two different intermediate courts of appeal before settling in the D.C. region.


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Gertie Fields

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Ms. Fields manages C2’s Payroll Services team, charged with ensuring that all client payroll processing is timely and accurate. She is responsible for all aspects of client payroll accounting and financial reporting functions, including preparation of payroll audits. She manages the processing of multi-state payrolls, new hire reporting, and transmission of ACH files, and ensures that payrolls are accurate and fully compliant.

More importantly, Ms. Fields and her team pride themselves on proactively identifying potential payroll issues for clients before they become a problem. She has been with C2 since 1998, and has directed all aspects of Payroll Services. She holds a bachelors’ degree in Business Administration with a concentration in Acquisition and Contract Management.


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Ms. Liotta brought her 20-years of accounting management experience to C2 when she joined the company in 2000. As CFO, she directs and oversees all financial activities of the corporation including preparation of financial reports as well as summaries and forecasts for future business growth and general economic outlook. She is responsible for business and financial strategy and planning, monitoring, and management and reporting, including management and development of policies, systems, processes and personnel involved. Ms. Liotta directs the accounting staff to ensure that exceptional internal auditing and financial controls are maintained.

Ms. Liotta earned a Bachelor of Science degree in Business Administration from George Mason University with undergraduate studies at Clemson University.


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Jackie Asencio

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Ms. Asencio is President and CEO of C2 Essentials, Inc., one of the region’s leading human capital management service providers. With more than 30 years’ experience, Ms. Asencio has been a major influence in helping small to mid-size government contractors grow and compete in the federal marketplace. C2 Essentials has successfully provided clients with a competitive edge through cost-effective HR outsourcing. Ms. Asencio recognizes that federal contractors are increasingly forced to reduce their costs due to pricing pressure. C2 Essentials becomes a strategic partner to its clients to help reduce their overhead and fringe dollars, while providing a robust HR expertise that enables clients to achieve HR compliance in an increasingly complex regulatory environment. HR outsourcing solutions are focused on the client’s mission, both CONUS and OCONUS.

As a seasoned trainer and coach, Ms. Asencio works closely with business owners ensuring their human capital management strategies are aligned to their business goals. Ms. Asencio has extensive experience in full life cycle recruiting, talent management, succession planning, career development, reward and recognition strategies, performance management, regulatory compliance, compensation, benefits, risk management, and outplacement services. Prior to founding C2 Essentials, Ms. Asencio provided human capital management support to Department of Defense and various civilian agencies.

Ms. Asencio believes in giving back to the community, her philanthropic activities have included supporting Operation Homefront, Wounded Warriors, Boulder Crest Retreat, The National Veterans Institute for Procurement, and local families in need. Ms. Asencio has received the Sister Eymard Gallagher Award for Corporate Social Responsibility and was a finalist for The Dr. J.P. London Award for Promoting Ethical Behavior for the Human Resources Leadership Awards (HRLA) of Greater Washington.


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