The Narrow But Passable Gate

1. The Narrow But Passable Gate Considerations for Hiring Workers with Criminal Records A presentation for the 2013 DisAbility Jobs Summit October 9, 2013 Columbus, Ohio October 9, 2013

2. The Narrow But Passable Gate Ohio Justice & Policy Center, 2011 1.92 million Ohioans have a felony or misdemeanor conviction — 1 in 6 —

3. The Narrow But Passable Gate 1. Employers seek to avoid problems by rejecting all job applicants with criminal records. Categorically excluding employees with criminal records creates new problems.

4. The Narrow But Passable Gate Passing Through the Gate -- Employers can build an effective workforce that INCLUDES workers with criminal records.

5. The First Gatepost: Why employers reject job applicants with criminal records Negligent-hiring liability “Collateral consequences of conviction” -- see the CIVICC database

6. Negligent Hiring Elements(1): • Employment relationship; • Employee's unfitness or incompetence; • Employer's “actual or constructive” knowledge of such unfitness; +

7. Negligent Hiring Elements (2): • Employee's act or omission caused the plaintiff's injuries; and • Employer's negligence in hiring or retaining the employee was a proximate cause of the injury.  • Employee’s action was reasonably foreseeable.

8. Avoiding negligence liability • Employer research is key to avoiding liability for Negligent Hiring: • Employers have a duty to make a reasonable investigation of an applicant’s fitness before hiring. • The extent varies with the circumstances.

9. Avoiding negligence liability • Contact Former Employers: • Request that applicant specifically authorize potential employer to contact former employers and release employment information. • Don’t ask for references if you aren’t going to check them. • If using an investigative agency to gather an applicant’s employment history, sign an indemnification agreement.

10. Avoiding negligence liability • Ask Former Employers: • Employment Dates • Job Titles • Pay Rates • Work Habits • Examples of positive traits are an excellent way to avoid negligent hiring claims. • Whether they would hire employee again.

11. Avoiding negligence liability • Check Personal References too: • If Applicant cannot produce references despite living in the area for an extended period, this is a red flag. • Have applicant’s signed release readily available. • Ask only job-related questions: • Other questions could be the basis of discrimination or invasion of privacy claims. • Sending reference inquiries by mail provides documentation.

12. Avoiding negligence liability • Check Driving Record IF relevant to the job. • If position requires any driving of vehicle on Company business, check applicant’s driving record. • BMV will have information concerning: • All traffic violations, • Driving-related offenses, • Identifying information contained on state- issued license. • In addition to moving violations, BMV check can reveal more serious obstacles such as suspended or expired license.

13. Avoiding negligence liability • Document and retain all information received. • Document any unsuccessful attempt at gathering information. • Make offer only after completing basic research.

14. Criminal Background Checks • After all the basic research is completed, • conduct a criminal background check IF required by the nature of the job: • Will the employee -- • Be bonded because of access to money or valuables? • Carry a weapon? • Drive a company vehicle? • Have access to drugs or explosives? • Have access to master keys? • Have a great deal of contact with the public, • patients, or children?

15. Criminal Background Checks • Ohio law requires record checks for some jobs, such as • - School Employees/Bus Drivers • - Child and Adult Care Providers • - Security Guards/Private Investigators • - Providers to Boards of Developmental Disabilities • Ohio and federal law impose other “collateral consequences” on people with criminal records.

16. Civil impacts of conviction “Collateral Consequence” =Civil Impact (UCCCA) Any penalty, disability, or disadvantage, however denominated imposed on individual [, licensing agency, or employer] as a result of conviction [, arrest, or sentence] which applies by operation of law whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.

17. Civil impacts of conviction • “Collateral Consequence” =Civil Impact • Does not include imprisonment, fine, any form of supervision, or costs, including cost of incarceration. • Does include mandatory anddiscretionary consequences affecting employment, housing, family, financial, and civic-participation rights • (See R.C. 2961.21)

18. Civil impacts of conviction • 2005 Toledo study found 404 consequences in Ohio law. • Today, CIVICC contains 778... and counting. • Civil impacts affect the whole community: • 1.92 million Ohioans have a felony or misdemeanor conviction -- • — 1 in 6 — • Ohio Justice & Policy Center, 2011

19. Civil impacts of conviction • Employment exclusion hampers the economy: • Former inmates make 40 percent less than before they were incarcerated.  Average lost income was $15,600 per year. • Pew Center on the States, 2010 • Collateral Costs: Incarceration’s Effect on Economic Mobility • 13.9 million working-age Americans with felony records. Their exclusion from labor market = $57-$65 billion lost U.S. GDP. • Center for Economic and Policy Research, 2010 • Ex-Offenders and the Labor Market • Ohio’s share of lost GDP = $2 billion

20. Ohio CIVICC Database Searchable online database of the CIVilImpacts of Criminal Convictions under Ohio law. http://CIVICCohio.org

21. Ohio CIVICC Database Searchable online database for answering two questions specific specific Ohio civil impact criminal conviction TRIGGERED BY WHICH…? TRIGGERS WHAT…? s s

23. Searching CIVICC

24. What about civil impacts under federal law? Civil impacts of conviction ABA is building a national database: National Inventory of Collateral Consequences of Conviction (“NICCC”) http://www.abacollateralconsequences.org

25. The Second Gatepost: Why it’s no solution to reject all job applicants with criminal records That “solution” causes more problems: Criminal records & the FCRA Title VII Enforcement

26. Criminal Records & the FCRA FYI: The Fair Credit Reporting Act puts duties on consumer reporting agencies (CRAs) and employers regarding creation, dissemination, and use of criminal records in employment decisions. 15 U.S.C. §1681 et seq.

27. Criminal Records & the FCRA CRA’s duties • Cannot report arrests after 7 years if salary <$75k • Use reasonable procedures to produce maximum possible accuracy • If a public record is being reported and is likely to have adverse effect on employment, CRA must either: • notify subject of record (job applicant) that info is being reported and who requested it; or • maintain “strict procedures” to insure info is complete and up to date.

28. Criminal Records & the FCRA Are CRAs fulfilling their duties? See National Consumer Law Center’s report, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses Mismatched people Critical information missing Sealed/expunged cases reported Misclassified offenses

29. Criminal Records & the FCRA Employer’s duties: Give written notice of intent to check. Get written authorization to check. Give copy of *new* FCRA notice from CFPB. Give notice of adverse decision. Give contact info for reporting agency (or just give a copy of the report).

30. Criminal Records & the FCRA Civil damage claim for failure, based on: inaccurate report; caused by failure to use reasonable procedures ... + injury (including emotional) . . . resulting from the inaccuracy. Willful violation can lead to punitive damages. Consumers can also complain to FTC or Consumer Financial Protection Bureau.

31. Title VII Enforcement Title VII of the Civil Rights Act of 1964: disparate impactis unlawful if employment practice not job related nor consistent with business necessity. There is extensive evidence of severe racial disparity in criminal justice system. Overbroad employment exclusion based on criminal-justice contact = disparate impact.

32. Title VII Enforcement EEOC has been saying this since at least 1989. Updated Enforcement Guidance on 4/25/2012 just gives much more detail & examples. Seehttp://bit.ly/EEOC_Enforcement_Guidance_2012 Green v. Missouri Pacific RR Co. factors: nature and gravity of offense/conduct; how long since offense and completion of sentence; and nature of job held or sought.

33. Title VII Enforcement • EEOC isn’t kidding: • Pepsi settlement, January 2012 • Dollar General lawsuit • BMW lawsuit • J.B. Hunt settlement June 2013 • Private lawsuits also can be distracting and expensive even if unsuccessful. e.g., El v. SEPTA, 3rd Cir. 2007: 3 experts to show business necessity

34. Title VII Enforcement U.S. Dept. of Labor Training & Enforcement Guidance Letter, May 25, 2012: WIB one-stop staff must screen job postings for possible Title VII violations. Can put up job announcement, but must also post warning about possible Title VII violation. See http://bit.ly/DOL_Guidance_31-11

35. Passing Through the Gate Hiring people with criminal records is possible and profitable Fair Hiring Policies: Civil Service and Beyond Federal Bonding & Work Opportunity Tax Credit Record sealing and State-Issued Certificates: CAE & CQE

36. Fair Hiring Policies inCivil Service Cincinnati, Hamilton Cty., Cleveland and more -- Be clear about statutory barriers up front. Don’t ask about criminal records on application. Do record check after exam, interview, & conditional offer. If rejecting, justify relevance of record in writing: individualized consideration, not a matrix. Give copy of record check to applicant and give reasonable time to correct.

37. Fair Hiring Policy Why? Transparent, justifiable decision making Clear expectations for applicants Public policy of supporting redemption because redemption is probable. Get the best workers. Period. http://bit.ly/GeneMays

38. Fair Hiring Policy 2000-2010: 91% (73/80) retention • “Don't look at this as a social program, • don't look at this as being altruistic. • Look at this as a business decision.” • http://bit.ly/PamelaPaulk Pamela Paulk, Vice President of Human Resources, Johns Hopkins Medical Center

39. Supports & Incentives • Coordinated in Ohio by ODJFS, • http://jfs.ohio.gov/wotc Federal Bonding - Administered by DRC through Ohio Central School System http://bit.ly/OhioFedBonding Work Opportunity Tax Credit

40. Ohio Supports & Incentives • Senate Bill 337 • “The Collateral-Sanction Reform Bill” • Signed into law 6/26/2012 • (Mostly) effective 9/28/2012 • House Bill 86 • “The Justice-Reinvestment Bill” • Effective 9/30/2011 • Mostly sentencing reform

41. Ohio Supports & incentives Civil Impact changes under S.B. 337: • For5 state licensing agencies, SB 337 limits exclusion of applicants with a criminal record: • Ohio Optical Dispensers Board • Registrar of Motor Vehicles(for motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools) • Construction Industry Licensing Board • Hearing Aid Dealers and Fitters Licensing Board • Director of Public Safety (for private investigators and security guards) • unless the offense is a “disqualifying offense”or • crime of moral turpitude.

42. Civil Impact changes under S.B. 337 State Board of Cosmetology: • cannot deny certification on the basis of prior incarceration or conviction for a crime. O.R.C. 4713.28(K). • must assist ex-offenders and military veterans who hold licenses to find employment. O.R.C. 4713.07(F). Driver’s License changes Child Support -- Newrules on imputed income

43. Ohio Supports & incentives New criminal record-sealing rules under SB 337 AS OF 9/28/2012: • BASIC RULE: Two misdemeanors; or one misdemeanor and one felony. ORC 2953.31. • Same prohibited offenses as before (violence, sex offenses, child victim, traffic) exceptnon-payment of child support. ORC 2953.36. • Minor misdemeanors treated as before

44. Ohio Criminal-record sealing: • ORC 2953.31 (A) • “Eligible offender”means anyone who has been convicted of an offense in this state or any other jurisdiction and: • who has not more than one felony conviction, • not more than two misdemeanor convictions if the convictions are not of the same offense, • or • not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.

45. Ohio Criminal-record sealing: Juvenile record changes under SB 337 Record sealing (ORC 2151.356) - • Waiting period reduced from 2 years to 6 months • No fee for juvenile-record sealing • Sexual battery and gross sexual imposition now CAN be sealed • Confidentiality (ORC 109.572, 109.578) • Juvenile records now explicitly confidential in statute exceptfor aggravated murder, murder, and registration-eligible sex offenses

46. Ohio Supports & Incentives Certificates of Achievement and Employability & Certificates of Qualification for Employment

47. CAEs & CQEs Two legal effects Converts mandatory civil impact into a discretionary one — no guarantee of getting license or privilege Protects employer from negligent-hiring liability

48. Certificate of Achievement & Employability (CAE) Granted by DRC Only for inmates with less than 1 year left or currently on PRC/parole Must have completed various kinds of programming in prison No limit on types of offenses Must name specific civil-impact — use CIVICC ORC 2961.22

49. Certificate of Achievement & Employability (CAE) CAE www.drc.ohio.gov/ocss/AandEbrochure.pdf

50. Certificate of Qualification for Employment (CQE) • ORC 2953.25 -- • CQE provides the same 2 benefits as CAE, • but available to many more people: • 6 months post-discharge for misdemeanor, • 1 year post-discharge for felony. • Court decides: • Court of county where applicant resides