Job Applicants with Criminal Records

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1 Job Applicants with Criminal Records What Every Employer Needs to Know The Council on Crime and Justice, a Minnesota nonprofit organization, offers this guidebook to help employers better understand the law surrounding criminal records in the hiring process. The Society for Human Resource Management recently conducted a poll, finding that nearly 80% of employers are conducting criminal background checks on all job applicants. The vast majority of these employers may not know how to comprehend the information they receive from private background companies and are at risk of violating state and federal law when choosing not to employ, retain, or promote an individual based on a criminal history. Through this guidebook, employers can learn some of the history behind the recent explosion in criminal records among workers in America, and what those records mean. Employers can expect to learn what laws address an employer s decision to hire an applicant with a criminal record, and how an employer can best comply with these laws. This guidebook contains into the following sections: 1. Criminal Records i. DHS Disqualifications ii. Record Request Form and Sample Criminal Records iii. Expungements 2. The Fair Credit Reporting Act 3. Civil Rights 4. Negligent Hiring 5. Model Hiring Practices The GAUGE training, Demystifying Criminal Backgrounds, and the accompanying Resource Manual (the "GAUGE Materials") are the original works and property of the Council on Crime and Justice ("the Council"). Unless otherwise specified by the Council, the GAUGE Materials were created by the Council. If you have any questions about use, distribution, or copying of the GAUGE Materials, or are interested in obtaining additional GAUGE training, please contact the Council at for further information. This training is made possible in part by the generous support of The Minneapolis Foundation.

2 Criminal Records: Changes in Today s Workforce Historical and Policy Background The United States has the highest incarceration rate in the world, incarcerating its residents at a rate 4 to 7 times higher than other industrialized nations and 32 times higher than some developing nations like Nigeria and India. The U.S. Correctional Population Over the past four decades, the number of people in the criminal justice system has quadrupled. Starting in 1980, with fewer than 2 million people, the criminal justice system has grown to include nearly 8 million men and women. Incarceration Rates: Select Nations Probation Jail Parole Prison The State of the USA Listed as they appear top-to-bottom on the graph Crime levels fluctuate, and cannot account for this steady growth. Decades of tough on crime policy agendas have led to laws criminalizing more behavior, increasing punishment, and creating more barriers for those transitioning from the correction system back into society. The Tough on Crime policies capture not just people in custody, but people on parole and on probation as well. National Council on Crime and Delinquency In Minnesota, we have the 8 th highest rate of people under correctional control in the nation. What This Means for Employers: These past four decades have created an American working-age population that includes up to 14 million people with felony records about one in every fifteen between the ages of 18 and 64. This rate is higher among younger workers, and could be as high as one in five, if the rate includes misdemeanor as well as felony records. This is unprecedented in American history, and it changes how employers should view the hiring process. The majority of persons with criminal records have the skills and training many employers need, and law and public policy is starting to create more incentives to hire persons with criminal records. Ex-Offenders and the Labor Market, Center for Economic and Policy Research, Nov

3 Criminal Records: How Records Are Created Who Creates Criminal Records, and What They Say Law Enforcement Records: Law enforcement officers create records cataloguing arrests, citations, and other situations involving official constraints on liberty, like stopping someone for questioning on the street. These records do not indicate guilt, and employers need to be careful when reviewing an applicant s law enforcement records. The Equal Employment Opportunity Commission (EEOC) has stated that denials of employment due to information on law enforcement records can discriminate against protected minority groups, which can lead to civil right violations and lawsuits. Court Records: Court records show what offense the prosecutor charged and if the court found the individual guilty. Keep in mind these court record categories: Offense Levels: Offenses range from petty misdemeanors to felonies. A felony sentence level is one in which a sentence of incarceration for more than one year, or a fine of more than $3,000, or both, is imposed. A gross misdemeanor sentence level is one in which a sentence of incarceration for 91 to 365 days, or a fine of $ 1,001 to 3,000, or both, is imposed. A misdemeanor sentence level is one in which a sentence of incarceration for up to 90 days, or a fine of $301 to $1,000, or both, is imposed. A petty misdemeanor sentence level is one in which a sentence of a fine of up to $300 is imposed. A petty misdemeanor is not a crime. Dispositions: Not all interactions with the criminal justice system are resolved with a conviction. Below are a few of the most common dispositions (or resolutions) of criminal records in Minnesota: Arrest: Essentially, a meaningful seizure of liberty which may result with being taken into custody. The arresting officer sends a police report to the prosecutor, who may or may not decide to charge the individual with a crime. Dismissal: Both the prosecutor and the court can dismiss criminal charges before trying the individual. The court does not find guilt when it dismisses a charge. Continuance for Dismissal: The defendant does not plead guilty. The prosecutor suspends prosecution for a period of time. The charges will be dismissed if the defendant complies with conditions of the continuance typically, no same or similar within a year period. Stay of Adjudication: The judge can suspend a finding (or adjudication) of guilt upon the condition that the individual successfully complete probation. Because the court finds no guilt, this is not a conviction.

4 Stay of Imposition: The judge can adjudicate the individual guilty, but not impose the sentence upon the condition that the individual complete probation. At the end of probation, the sentence will be deemed a misdemeanor. Stay of Execution: The judge can impose the sentence, but can suspend execution of this sentence of incarceration upon the condition that the individual complete probation. Execution of Sentence: The judge can execute the sentence, incarcerating the individual. With good behavior, Minnesota may allow an individual to leave custody after 2/3 of the sentence is completed. The individual remains on parole or probation until the original sentence would have ended. Employers should recognize what offense the prosecutor charged an individual with, and what the court ultimately found. The EEOC has stated that denials of employment due to information on court records can discriminate against protected minority groups. Part of avoiding the lawsuits that can arise from this discrimination is learning what court records say about job applicants, and making informed decisions based on these applicants histories. The Bureau of Criminal Apprehension: The BCA collects criminal records in a repository in St. Paul. It is the source of most criminal record information in Minnesota.

5 Criminal Records: Details and Changes What Criminal Charges and Changing Criminal Records Say about Job Applicants Looking Past the Charge s Label: To fully understand a criminal charge, employers need to look past the charge s label to the behavior that led to the charge. Two examples: Terroristic Threats: This charge can arise from any violent threat: I ll get you or I ll kill you. It does not usually involve the violence associated with terroristic activity, and may more accurately be called a verbal assault. Burglary: This charge can arise when a person does not have consent to be at a certain location and commits a crime while there. For instance, if a neighbor invites you over, asks you to leave, and you push her in defiance, a prosecutor can charge you with a burglary. The incident need not involve forced windows or a theft of household goods. Only by looking at the behavior behind the charge can an employer fully determine if a job applicant poses a risk to the business. Relying on the charge s label alone will often mislead. After the Conviction: Even after a conviction, the court can continue to make important modifications to an individual s record. The court reports the termination of probation and parole, and the court determines when to expunge a record. The court also reports the pardoning of a conviction by the Minnesota Board of Pardons. Probation: Probation starts when the court sentences the individual and lasts until the court terminates probation. Probation can end early for those who follow the rules and show signs of rehabilitation. Early termination shows time management, determination, and work. Parole: Parole can also end early for those who follow the rules and show signs of rehabilitation. Again, early termination shows positive efforts by the job applicant. Expunged Records: In Minnesota, an expungement does not necessarily result in the public losing access to all records related to a criminal incident. Often, the court will expunge court records without expunging law enforcement, correctional, and other records of the incident. This means that court-expunged records may appear on a job applicant s criminal background check. Only by communicating with the job applicant can an employer fully determine the current status of the case. The background check may not be complete. In either event, expunged records are sound evidence of a job applicant s rehabilitation. If the court grants an expungement, the court does not foresee a future need for the record, and effectually finds that the person is no more likely to commit a crime than anyone else. Pardoned Records: The Minnesota Board of Pardons includes the governor, the state attorney general, and the Chief Justice of the Minnesota Supreme Court. This board can pardon convictions, which returns the individual to innocence in the law s eyes. However, a pardoned conviction remains on an individual s record unless expunged by the courts. This means that pardoned records may appear on a job applicant s criminal background check. As with expunged records, employers need to communicate with job applicants to fully determine the current state of the case and the level of the individual s rehabilitation.

6 The Fair Credit Reporting Act Reporting Agencies: Government agencies and private companies maintain databases of criminal records. Private companies who gather criminal records from government databases and sell these records back to employers and landlords are considered Consumer Reporting Agencies (CRAs) under Federal law. The content and scope of CRA databases vary based on the market the CRA sells its information to, but all CRA databases are closely regulated by state and Federal law. The Fair Credit Reporting Act: The Fair Credit Reporting Act (FCRA) regulates how CRAs collect and disseminate information on criminal records. FCRA also regulates how employers obtain and use criminal background checks when evaluating potential employees. Employers (and CRAs) who do not comply with FCRA regulations expose themselves to lawsuits in federal courts, government investigations, and fines. These consequences of noncompliance make it imperative that employers learn: 1) what FCRA requires and 2) how to create hiring practices that minimize the risk of FCRA-based lawsuits and fines. This manual covers these points in more detail below. For More Information: The Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act, and issues opinion letters interpreting FCRA provisions. Interested employers can find these letters at the FTC s website, or can get more information through the contact information below. Federal Trade Commission 600 Pennsylvania Avenue, NW Washington, DC (202) FTC Staff Opinion Letter: Fair Credit Reporting Act Sections 603(d)(1), 604(b), 606, 607(e), 609, and 610. June 9, This opinion letter outlines when FCRA regulates an employer s use of criminal background checks supplied by consumer reporting agencies.

7 An Employer s Guide to FCRA Compliance The Fair Credit Reporting Act (FCRA) outlines certain requirements employers must follow before seeking or obtaining criminal background checks on potential employees. FCRA also outlines requirements employers must follow whenever they take action based on the background check. Written Notice and Permission Before employers request a criminal background check on a job applicant, employers must notify the applicant in writing of this intent to check. The notice must appear on a document separate from other application materials, and employers must receive the applicant's written permission before obtaining information from a CRA. Electronic permission is sufficient. (Special procedures apply to the trucking industry.) Adverse Action Procedures If an employer relies on a criminal background report in taking "adverse action" against a potential or current employee (denying a job application, reassigning or terminating an employee, or denying a promotion), an employer must take the following steps: Step 1: Before an employer takes adverse action: Give the individual a copy of his or her criminal background report and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act" published by the Federal Trade Commission (FTC). The CRA that ran the background check should give you a copy of this FTC document. It is also online. Step 2: After an employer takes adverse action: Send an oral, written, or electronic communication including: 1) Notice that adverse action has been taken, 2) The name, address, and phone number of the CRA that supplied the report, 3) A statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for the adverse action, 4) A notice of the individual's right to dispute the accuracy or completeness of any information the agency furnished, and 5) A notice of the individual s right to an additional free consumer report from the agency upon request within 60 days.

8 Civil Rights: Law and Context Protected Classes: Title VII of the Civil Rights Act of 1964 prohibits employer discrimination against protected classes based on race, color, religion, national origin, and gender. Minnesota adds family status, disability, public assistance, age, and sexual orientation to this list, and enforces state laws against discrimination through the Minnesota Department of Human Rights. Discrimination includes explicit behavior harming protected classes and business practices that disproportionately impact protected classes. Business practices that disproportionately impact protected classes include acts that appear neutral, but effect protected persons more than others. An example is a pre-hire test that all employees take, but that minorities disproportionately fail. Persons with criminal records: The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal civil rights law, and issues opinions interpreting this law. The EEOC has issued opinions on an employer s use of law enforcement and court records in the hiring process. Law Enforcement Records: The EEOC states that an employer s use of arrest records as an absolute bar to employment has a disproportionate impact on protected classes. Certain protected minorities are overrepresented in the yearly number of arrests, and a denial of employment based on arrest records does not take this overrepresentation into account. If an employer wants to use an arrest record to deny employment to a specific applicant, the employer must find that the conduct underlying the arrest is job-related and relatively recent. The touchstone is business justification, and the employer should act upon this basis when using the job applicant s arrest history in employment decisions. Anything else may violate civil rights. Court Records: The EEOC states a similar opinion in relation to an employer s use of court records in the hiring process. Protected minorities are overrepresented in the criminal justice system, and employers who deny jobs to applicants with dismissals, convictions, or records of stays may be violating civil rights if those denials are not based on a business necessity. This graph shows the racial disparities in United States incarceration rates. Social scientists cite a variety of reasons for this disparity, but the main message employers should take from the graph is that disparities exist, and that employers need to account for these disparities when reviewing a job applicant s criminal records.

9 An Employer s Guide to Civil Rights Compliance To avoid civil rights violations, lawsuits, and fines, employers should follow the guidelines below. The guidelines follow the most common records employers encounter in the hiring process. Arrest Records 1) Do not ask for arrest information on job application materials, and do not make blanket employment exclusions on the basis of arrest records. 2) If you do consider arrest records, determine if the alleged conduct is related to the position sought. Exclusions of employment must be based on business justification. A business justification may be demonstrated by showing that: the applicant engaged in the conduct for which he or she was arrested; and the conduct is both job-related and fairly recent. 3) Allow the applicant to explain the record. EEOC guidelines require employers to provide applicants with an opportunity to explain their arrest records before they are disqualified from employment. Keep in mind that under FCRA, employers must provide applicants with a copy of their criminal background report before adverse action is taken. It is advisable to speak with applicants about the report at this time. Court Records 1) Only deny employment if a business necessity exists. The minimum requirements for business necessity include: i. The requirement must directly relate to the position sought. Consider: a. the nature and gravity of the offense; b. the time that has elapsed since the conviction and/or completion of the sentence; and c. the nature of the job held or sought. ii. The hiring practice must not create a disparate impact on a protected class, and iii. There must not be an alternative policy that would fulfill the needs of the employer without disproportionately impacting protected classes. 2) If business necessity indicates that an applicant might pose a risk to the business, determine if the applicant shows signs of personal rehabilitation. For more detailed information, see: EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (1982); and EEOC Policy Statement on the Issue of Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (1982).

10 Negligent Hiring Negligent Hiring: Negligent hiring holds employers responsible for injuries caused by their employees if the court finds that the employer failed to make reasonable inquiries into an employee's background and suitability for a position. Negligent hiring is outlined in case law (not statute), it is not recognized in all states, and those that do recognize it may have variations. Key notes about Minnesota s Negligent Hiring Law: 1. In Minnesota, an employer has the duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of employment, may pose a threat of injury to members of the public. A breach of this duty may lead to negligent hiring lawsuits. 2. Reasonable care in the investigation of an applicant does not require an employer to conduct a criminal background check. The employer must reasonably investigate a job applicant s history. This can include, among other things, an interview, a reference check, and a summary of past work, military experience, or education. 3. Decisions about the scope of background investigations should be directly related to the severity of risk third parties are subjected to by an incompetent employee. For positions with no public contact and limited contact with co-employees, the scope of the background investigation is limited in nature since there is little opportunity to cause injury to third persons. 4. In a negligent hiring claim, there must be at least a threat of risk of a foreseeable physical injury. It does not apply to emotional or economic loss. An employer should be concerned only about offenses which demonstrate a propensity for violence in regards to a negligent hiring lawsuit. 5. The duty to use reasonable care occurs prior to and at the time of hiring, not at the time of injury. (Negligence related to retaining incompetent or potentially dangerous employees, and supervisory negligence, do not relate to negligence in hiring incompetent employees and are covered under different legal theories.) 6. Minnesota Courts recognize the need for people with criminal records to be employed and reintegrated into society.

11 Safe Hiring Safe Hiring Law: Minnesota Statute Minnesota is one of 36 states that will hold employers liable for the negligent hiring of individuals with violent backgrounds. Many employers assume this liability exposure is greater than it actually is and therefore do not hire individuals who, in fact, could be hired safely. On August 1, 2009, Minn. Stat began to clarify the liability of employers for hiring someone with a criminal record and limit liability regarding certain records. This legislation was developed by the Council on Crime and Justice in cooperation with the Minnesota Chamber of Commerce, supported by a group of organizations through the Second Chance Coalition, and authored by Senator Mee Moua and Representative Bobby Champion. [ ] EMPLOYMENT OF INDIVIDUAL WITH CRIMINAL HISTORY; LIMITATION ON ADMISSIBILITY OF EVIDENCE. Subd. 1. Limitation on admissibility of criminal history. Information regarding a criminal history record of an employee or former employee may not be introduced as evidence in a civil action against a private employer or its employees or agents that is based on the conduct of the employee or former employee, if: (1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general; (2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or (3) the record is of an arrest or charge that did not result in a criminal conviction. Subd. 2. Relation to other law. This section does not supersede a statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment. Key Points 1. Many types of jobs are protected from hiring liability under paragraph (1). 2. If a position does create a risk, an employer can still be protected if the conviction does not relate to the position or other factors, such as evidence of rehabilitation, mitigate the risk. 3. Expungements and pardons protect the employer from liability. 4. Employers can not be found liable for hiring someone with a record that did not lead to conviction (arrests, dismissed charges, stays of adjudication, juvenile adjudications).

12 Fair Hiring Practices for Criminal Background Checks With roughly 1 in 5 people now having some form of criminal record, employers can no longer afford to use criminal records as an indiscriminate screening tool. Employers can protect themselves from several potential sources of liability by following these practices developed by the Council on Crime and Justice. At the same time, they can increase their applicant pool, develop a more diverse and qualified workforce, and contribute to their communities by providing people with criminal records the opportunity to reach their full potential. 1) Remove criminal records questions from the employment application. These questions can be confusing for both the applicant and the employer, and prevent applicants from being evaluated based upon all of their skills and qualifications. If the position is not open to individuals with certain types of criminal records, provide a notice of those limitations to applicants. 2) Do not consider non-conviction records or expunged/pardoned cases. Minn. Stat protects employers from liability based upon records that did not ultimately lead to conviction (arrests only, dismissals, stays of adjudication, juvenile adjudications), or were expunged or pardoned. Additionally, not considering applicants with non-conviction records could be grounds for a civil rights action. Employers may want to consider these records for particularly sensitive positions, but should always inquire into the circumstances of the case before denying someone employment. 3) Only consider records directly related to the position sought. Some positions may not require any background check at all. Minn. Stat protects employers when a position does not place others at any greater risk than that created by the individual being employed generally or not being incarcerated. Even for positions that create some risk, some types of convictions may not be relevant. 4) Consider evidence of rehabilitation. If a conviction does directly relate to the position sought, the applicant should have the opportunity to show evidence of sufficient rehabilitation and fitness to perform the duties of the position, and the opportunity to identify inaccuracies in the criminal record. **Note: If state or federal law governs criminal background checks for specific types of employment positions, then the state or federal law supersedes these principles.

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