2016 Montana SHRM Conference Ban the Box Laws and Their Impact on Employers
Legal Disclaimer & Notice No information in this presentation is intended to provide or suggest legal advice. You should seek legal advice from your in-house counsel or other third party legal counsel. 2
Agenda What, Why, & Who A Brief History Survey of the Universe Navigating the Compliance Maze Solving the Puzzle Q&A 3
What, Why, & Who Ban the Box Overview What are Ban the Box Laws? Fair Chance Policies Why? Remove unfair barriers Judge applicants on their qualifications Recidivism Who is Impacted? Public & private employers Contractors & subcontractors Who is pushing? National Employment Law Project (NELP), EEOC, Obama Administration, civil liberty & worker rights groups Who has joined the movement? 2010: Wal-Mart 2013: Target 2014: Bed Bath & Beyond 2015: Koch Industries, Home Depot 2016: Big Lots, Marshalls 4
1998 Hawaii 1 st state to Ban the Box 2005-2007 1 st major cities Removes Box Impacts public employers (Boston, Austin, Oakland) A Brief History Evolution of Ban the Box Laws 2008-2011 More Major Cities Join BtB Movement Timing of Inquiries 3 More States Join Movement Most Public, Some Private Impact (Philadelphia, NYC & CA, MA) 2012-2014 More cities & states pass laws Impacting private employers Advanced timing of inquires Special Notice (San Fran, Chicago, Buffalo, Seattle, IL, CO, MN) 2015-Present More Private Employer Impact Restrictions of Use of Records Individual Assessments Special Notices Discrimination (Portland, Philadelphia, NYC, OR, NY, VA, OH) 5
Survey of the Universe Jurisdictions & Scope *Source National Employment Law Project. Current as of April, 2016. 6
Survey of the Universe Jurisdictions & Scope *Current as of March 2016 7
Survey of the Universe Jurisdictions & Scope *Current as of March 2016 8
Survey of the Universe Jurisdictions & Scope Stars of the show: San Francisco Advertisement restrictions, after 1 st interview inquiry Conviction & pending only, relevance assessment, dispute process (7 day wait) Special adverse action notices, retention requirements D.C. Conditional offer required, conviction consideration only, Offer withdraw procedures, relevance assessment Special adverse action notices, statement of denial New York City Advertisement restrictions, Conditional offer required Conviction & pending only, relevance assessment, Offer withdraw, special adverse notices, dispute process (3 day wait) Portland Conditional offer, relevance assessment Special adverse action procedures, confidential requirements Seattle Advertisement restrictions, after 1 st interview inquiry Offer withdraw procedures, special adverse notice Dispute process (2 day wait) 9
Survey of the Universe Jurisdictions & Scope Different Types of Ban the Box Language & Requirements Type of Employer/Employee Relationship (CA, RI, Baltimore, Buffalo) Relevance Screening /Individual Assessment (D.C., MN, Portland, Chicago) Limitations on Arrest or Specific Types of Criminal Records (HI, San Francisco, NYC) Timing - After 1 st /2nd Interview or Conditional Offer (NJ, OR, Columbia, Rochester) Notification of Denial, Copy of Record and Dispute (MA, Seattle, NYC, Philadelphia) 10
Navigating the Compliance Maze: Impact & Unique Challenges for Employers What makes these laws challenging? Patchwork of Laws Subjective Requirements Falsification Discharge Increased Hiring Costs & Inefficiency Confusion with Conflicting Laws 11
Solving the Puzzle Ban the Box Solution for Consideration 7 Step Plan: Step 1: Establish a formal HR screening program Step 2: Have outside legal counsel review program Step 3: Survey the laws Step 4: Develop a relevance screen for criminal history Step 5: Develop Pre & Final Adverse Decision Protocols & Systems Step 6: Deploy Ongoing Training Step7: Audit 12
Solving the Puzzle Ban the Box Solution Consideration Takeaways Recap: Recognize you are dealing with a discrimination public policy movement Know where the laws are in place, what they require, and how they apply Review employment applications both paper and electronic Establish a formal HR screening program if you don t have one in place Have outside legal review of your HR screening program and its processes Develop relevance screen/individual assessment criteria, policies and procedures Develop a sophisticated, two step, pre-adverse and final adverse notice process Train recruiters & hiring managers on policies and procedures and ensure they have access Form a formal internal audit program to ensure legal compliance and procedure adherence 13
Solving the Puzzle Ban the Box Solution Consideration Resources for Getting Started: NELP - Best Practices and Model Policies: Creating a Fair Chance Policy EEOC Guidance - Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 HIRE Network, National Workrights Institute, Lawyers Committee for Civil Rights Best Practice Standards: The Proper Use of Criminal Records In Hiring FTC & EEOC Joint Guidance - Background Checks: What Employers Need to Know 14
Questions 15
Thank you! Chris Christian - Compliance Manager ADP Screening & Selection Services christopher.christian@adp.com