You’ve Banned the Box and Complied with other Fair Chance to Work Laws…Now What?
In our last article we discussed Ban the Box/Fair Chance to Work laws.
To review, these various laws may dictate when in the process you may ask about criminal activity or request us to search for criminal records. Also, some jurisdictions require you to make a conditional job offer before obtaining a criminal record. Some jurisdictions only prohibit the practice if you have a certain number of employees. Some of the laws only apply to public employees while others include private employees. One source for reviewing some of these laws is https://www.nelp.org/campaign/ensuring-fair-chance-to-work/.
And as we discussed in the last article, even if the jurisdiction that concerns you has no law (yet) the EEOC advises, “As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications.”
So, what are the ramifications of this timing in your hiring process? Many employers over the years have preferred to assemble all their candidates’ qualifications and history and then make a decision, with the thinking that if they decide on one person before all the information is known, they may have to go back through the screening process again on another candidate. They would argue that it makes no sense to spend time and dollars on, say, a driver applicant who has a recent felony DWI—they would like to know about that conviction upfront, so they can save their time and money and focus their resources on a qualified candidate.
If obtaining all the information upfront is prohibited, one ramification is that if you do not hire someone based on criminal record information, it will be clearer that the criminal record information was the reason. You may still decide not to hire the driver if they have a DWI, you may still decide not to hire the accounts payable supervisor if they have a recent embezzlement conviction.
Our advice is that you discuss with your counsel your practices and ensure that in your use of criminal records you evaluate the criminal offense by nature, severity, certainty, and timing; determine if the offense is “job-related and consistent with business necessity” and perform an individualized assessment where appropriate (VICTIG may be able to help you with some of these steps).
Thus, it may be that your applicant with the DWI could be qualified to be your accounts payable supervisor. Your applicant with the embezzlement conviction might be qualified for your driving position. “Nature, severity, certainty, timing and job-relatedness and business necessity” are key criteria in your evaluation. There is probably a job for everybody—but not every job is for everybody.
As you comply with Ban the Box/Fair Chance to Work laws, we would advise you to discuss with your counsel your procedures when you use a criminal record to disqualify an applicant for a particular position.
Banning the Box
Many employment applications used by employers over the years have had a section where the applicant was asked about criminal activity and checked a “yes or no” box and then asked to explain.
This is the box that is increasingly being banned by city, county, and state governments. Another name for Ban the Box laws are Fair Chance to Work laws.
Fair Chance to Work is a more accurate name—you can’t just remove any questions from the job application about criminal activity and be compliant with many of these laws. These various laws may dictate when in the process you may ask about criminal activity or request us to search for criminal records. For example, some jurisdictions require you to make a conditional job offer before obtaining a criminal record. Some jurisdictions only prohibit the practice if you have a certain number of employees. Some of the laws only apply to public employees while others include private employees.
Here is one source that provides some information on these laws. https://www.nelp.org/campaign/ensuring-fair-chance-to-work/
We encourage you to discuss with your legal counsel (if you have not already) your strategy for dealing with these laws. (If your job applications still have the criminal activity yes or no box, we would make the call today.)
And one word of caution: if you determine that the particular state(s) or city/county locales that concern you do not have Fair Chance to Work laws, we would not relax. There are over 150 city and county laws and 35 state laws currently in force, but two years ago, it was about half that. This initiative was fast-moving even before current events; we expect it to accelerate.
Further, regardless of the particular state/city/county that concerns you or your number of employees, the (Federal) EEOC has issued guidance on this subject. their guidance states:
Some states require employers to wait until late in the selection process to ask about convictions.108 The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience.109 As a best practice, and consistent with applicable laws, 110 the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.
And so, they are recommending you, at a minimum, not ask about convictions on the job application. In our next article, we will discuss some strategies for using criminal information in the hiring process as you comply with Fair Chance laws.
Several months ago, we wrote about the challenges we face when reporting court information to you and we briefly mentioned that VICTIG used a service called NameGrades™. We were asked to provide more detail. First, we’ll review the issue NameGrades™ addresses.
As you know, when you order a criminal record, VICTIG goes to the appropriate source(s)/courts(s) to obtain the information. The issue is that the courts do not have their information filed with a unique identifier.
When you order a driving record, you input the drivers license number and state and that is unique. When you send an email, that email is unique. Social Security numbers are intended to be unique.
Court records are a different story because the identifiers immediately available are a name and date of birth. Some records will have a middle name, some won’t. Some will have the full date of birth; others will omit year of birth or only have the year available.
A name and a date of birth are not unique. As we discussed in our previous article on this subject, even if your name, combined with your date of birth are so unique as to be one in a million, that means there are about 340 others in the United States with your name and date of birth.
So the challenge for VICTIG is two-fold. First, if we go to a court with a name and date of birth, there may be multiple matches. We cannot simply report them all and say “you figure out which, if any, of these pertain to your applicant or employee.” VICTIG is regulated by the Federal Trade Commission and the Consumer Financial Protection Bureau (CFPB) and one of their key imperatives is “maximum possible accuracy.”
Secondly, there is the case where there is only one file and the identifying information matches exactly. But the name is such a common name that accuracy could be compromised by simply reporting this “exact match.”
This is where our use of NameGrades™ comes in. NameGrades™ has obtained US census data, and the commonality of the name is classified into one of 100 “buckets” or statistical quadrants. The year of birth is used because the popularity or names varies by year. (“Festus” as a first name may have been popular in Gunsmoke days—today, not so popular.) NameGrades™ takes this information and generates a score. Gender and middle names will improve the accuracy of the score.
VICTIG, rather than just reporting a record–even a record with exactly matching identifiers—will do further research on the more common names identified by the algorithm to ensure maximum accuracy to you.
This is what the CFPB believes is a best practice for companies such as VICTIG. In fact, in an action against a company like VICTIG, the CFPB recommended procedures to “include using algorithms to distinguish records by middle name and match common names and nicknames.”
NameGrades™ is the algorithm VICTIG uses to ensure we provide you with maximum possible accuracy.