Archive for the Human Resources News and Interviews Category

Death of the Box: Why the Criminal History Question on Job Applications Is Heading Towards Extinction

The HR guy in me hates this trend and recognizes that it will waste employers’ and applicants’ time and effort. The owner of a background screening company in me recognizes that this trend means more background checks from our customers.

Mitigating the insider threat is a critical component of any information security program, and pre-employment screening is an effective tool towards attaining that objective. At the same time, the new legislative trend to ban the box and to impose other restrictions on the criminal history question raises the risk that an organization’s pre-employment screening program is illegal. Consequently, privacy professionals should now discuss with their colleagues in the human resources and legal departments whether the time has come to remove the criminal history question from their organization’s employment application.

via Workplace Privacy Counsel | Littler Mendelson.

Time for a Background Check on Ban the Box

MSNBC.com recently ran an article titled States push to provide ex-felons a second chance discussing efforts in cities and states around the country to assist former criminal offenders in finding jobs. The article starts out:

Walter Fortson is a young man with impressive credentials: He graduated with honors from Rutgers University this year and is headed to the University of Cambridge on a prestigious Truman scholarship.

But on a typical job application, the first thing an employer might notice about Fortson is that he’s an ex-felon.

Fortson, 28, served two years in prison for dealing crack cocaine: He got out in March 2010 and has been clean since. Though he’s successfully turned his life around, he says discrimination against those with a criminal record is very real.

Walter Fortson was convicted of possession of crack cocaine with intent to distribute while in a school zone and while in possession of a weapon.
Walter Fortson was convicted in 2008 of possession of crack cocaine with intent to distribute while in a school zone and while in possession of a weapon.

Mr. Fortson’s academic progress is commendable. What this article fails to explain is that Mr. Fortson was convicted of selling cocaine in a school zone while carrying two handguns. He was sentenced to six years in prison in 2008 and was apparently released early.

The article also fails to discuss the kinds of positions for which Mr. Fortson has applied. However, it does say that Mr. Fortson has become a certified personal trainer. I think it is understandable why employers trying to fill certain kinds of jobs, including those in which he would come into close personal contact with health club patrons, would be concerned about hiring someone with Mr. Fortson’s relatively recent conviction for being a drug dealer in a school zone while carrying multiple weapons.

Also, his two years of incarceration and presumed lack of verifiable employment before that time (drug dealers’ customers don’t typically provide references) would also put him at a disadvantage against other applicants who have been gainfully employed during that period and accordingly gained experience and a verifiable employment history.

This is discrimination in the same way that every employment decision is discriminatory: less-qualified applicants are always at a disadvantage compared to those who are more qualified.

The National Employment Law Project and other groups focused on helping former offenders gain employment often cite anecdotes about individuals whose criminal histories have prevented them from getting jobs, though they usually find more sympathetic poster children than Mr. Fortson. On the other side, I maintain BadHireDays.com, a website that tells the stories of employers who unknowingly hired offenders and later regretted it.

This is discrimination in the same way that every employment decision is discriminatory: less-qualified applicants are always at a disadvantage compared to those who are more qualified.
Focusing on Mr. Fortson misses the wider focus of the story but is illustrative of the challenges facing employers in hiring former offenders. On one hand, they have a duty to protect the public and their own employees from harm, as well as protecting the company’s assets and reputation from loss. On the other hand, many employers would like to help someone like Mr. Fortson successfully reintegrate into society. However, they do so without assurances from the criminal justice system that the former offender poses no threat greater than that posed by those without criminal histories.

It is understandable why employers would proceed with caution to make careful, well-informed hiring decisions – which brings us to the thrust of the MSNBC article.

“Ban the Box”

Rhode Island just became the eighth state to “ban the box”, restricting employers from inquiring about applicant’s criminal history records on the employment application. Some of these initiatives also delay the criminal background check until after an employment offer has been made. The idea is that many employers immediately disregard applicants who respond affirmatively to the inquiry, regardless of the nature of the offense, how long ago it happened, and its relationship to the position for which the individual is applying. Advocates of ban the box suggest that delaying the discussion of criminal history until after an interview has been conducted or until after an offer has been extended gives the former offender an opportunity to compete for the position without based on their qualifications without the burden of their criminal history.

There are undoubtedly some employers who refuse to hire former offenders. They put themselves at peril under Title VII of the Civil Rights Act of 1964 in doing so because in many communities minority applicants are convicted at a higher rate than the white population. All of those considerations are a part of my Background Checks Under Fire presentation.

The EEOC also recommended that employers ban the box in their April 2012 guidance on employers’ use of criminal records. I discuss that in Background Checks Under Fire, as well.

However, my experience is that most employers are willing to consider former offenders. Their interest is in selecting the best applicant for the position, which can be a very nuanced, if imperfect, decision. Certain offenses within specified time frames will eliminate a candidate from one position but not necessarily from others. Some offenses, if they are isolated instances and not part of a pattern of criminal wrongdoing, will be of no interest to employers. Still others will lead to conversations with the applicant about the circumstances surrounding the offense and a determination as to whether the offense is indicative of a pattern of bad behavior or an isolated incident.

Under ban the box, former offenders will now proceed through telephone screening and in-person interviews only for the employer to learn of their criminal history at a later point in the process. At that point, the employer will decide whether the individual’s relevant criminal history excludes him from eligibility for the position. If the former offender is eliminated, everyone loses.  The recruiter has lost credibility with the hiring manager, the hiring manager has “yet another” unexpected delay in filling an open position, and the candidate faces disappointment. Everyone has wasted a lot of time.

Ban the box might also put former offenders who have truly rehabilitated at a disadvantage. How should they address that three-year gap in their employment history from when they were incarcerated? Should they volunteer their criminal history when meeting with the employer so that the issue can be dealt with openly or keep it quiet until the employer asks and risk being seen as lacking in candor?

Ban the box is also unfair to job seekers who have not committed criminal offenses. Just as employers consider whether an applicant has a college degree, the reasons she left previous employers, or even who she lists as references, so should they be able to consider the degree to which the applicant has chosen to violate the law. Leaving this important information out of the process of reviewing applications unfairly elevates former offenders to the same level as similarly-competitive candidates who haven’t committed such offenses.

As a society, we cannot afford a large class of people unemployable due to their criminal history. However, I am not aware of any studies that demonstrate the delaying the criminal history inquiry until later in the hiring process results in a higher chance of employment for former offenders.

Short of that, ban the box is a feel-good social experiment creating unnecessary delays and burdens on employers.

How Background Check Errors Lead to Litigation

Applying for a job is a high-stakes transaction, stressful to even the most qualified job applicant. That stress is multiplied when incorrect background check information mischaracterizes the applicant’s criminal history, which often leads to litigation.

On Sunday, Crain’s New York Business published an article about the employment background screening industry’s growth and related criticism and litigation resulting from a few firms’ sloppy consumer protection practices. The Crain’s reporter contacted me a couple weeks ago, resulting in a small paragraph quoting me:

“The big background-check guys buy the data in bulk, run their algorithms, and that’s how you get mistakes,” said Mike Coffey, who runs a small background-check company called Imperative Information Group. “There’s no substitute for going into the courthouse and verifying information yourself.”

I’ve written before about the problems with criminal history databases (both public and private) and the need for better consumer protection in the background screening industry. The short version:

  • Criminal records databases are great as indicators of possible records but the information generated should always be verified before being reported to an employer.   It is too easy for a software algorithm to associate a criminal record with the wrong person based upon a similar name and date of birth. This is the issue in the overwhelming majority of cases where employers and background screening companies get sued due to incorrect information.
  • Criminal records databases also miss between 40% and 60% of the criminal records found by searching the live records of the courts. Most jurisdictions do not make their criminal records available for inclusion in online databases. Database-only criminal records products give many employers a false sense of security that their new hires have been appropriately vetted.

Beyond the quality issues, another complaint many of the large background screening firms’ clients mention is poor customer service. Often, seemingly US-based screening firms have outsourced much or all of their operation to the Indian subcontinent. Consumer-protection issues aside, who hasn’t experienced the aggravation of dealing with foreign call centers? To be fair, many employers tell me that the US-based call centers utilized by some big screening firms aren’t much better.

Imperative Information Group may be small relative to the firms cited in the article, but that works to our clients’ advantage. We are large enough to offer employers the technology to ensure that their background screening process is efficient and small enough that we can afford to do the right thing for both our clients and their applicants.

U.S. Seizes 14 7-Eleven Stores in Immigration Raids

More than a dozen 7-Eleven franchises took in more than $180 million in revenue by running a “modern-day plantation system,” prosecutors in New York charged on Monday, built on the unpaid labor of dozens of illegal immigrants hired using sham Social Security numbers.

Federal authorities seized 14 7-Eleven stores on Long Island and in Virginia, arresting nine owners and managers, and seized property, including five homes. They are investigating 40 other 7-Eleven franchises in New York City and elsewhere in one of the largest criminal immigrant employment investigations ever conducted by the Justice and Homeland Security Departments, officials said.

Through the scheme, the defendants, who as franchisees for the parent company were licensed to use 7-Eleven buildings, trademarks and Slurpee and hot dog machines, recruited more than 50 illegal immigrants and gave them identities stolen from American citizens, including children and dead people.

The employees worked for 100 hours a week but were paid for a fraction of that time, and were forced to live in substandard housing owned by the operators of the convenience stores, the authorities said.

via U.S. Seizes 14 7-Eleven Stores in Immigration Raids – NYTimes.com.

New Podcast: Protecting Confidential Business Information

Last week, I interviewed A. Robert Fischer, a partner in Jackson Lewis’ Austin office, about the steps employers should take to protect their business’ confidential information.

Rob will be speaking on this topic on  June 12th as part of the Austin Human Resource Management Association’s Workplace Law Seminar Series.

I hope you find the slidecast below informative!

Slidecast: Working with Generation Y

Our latest slidecast for the Austin Human Resource Management Association deals with the impact the Millenials (Generation Y, the Net Generation) are having on the workforce and ways that employers are attracting their talent. Doug Douglas of Stark Talent will be speaking on this topic during AHRMA’s November 15th meeting.

If you will be in the Austin area, you can see the full agenda and register for the meeting at austinhumanresource.org

Enjoy the podcast

The 10 Commandments of Employment Eligibility Verification

1-55-64.

Those are the magic numbers Kevin Lashus, the Managing Partner of the Austin, Texas office of Jackson Lewis LLP, says employers need to know when processing Forms I-9.

In this interview, he also discusses employer responses to DREAM Act-lite, the Obama Administration’s recent action to allow young undocumented immigrants an opportunity to avoid deportation and obtain work permits.

Kevin will be hosting the Austin Human Resource Management Association’s September 20th Legal and Regulatory Roundtable.

Also, I’d be remiss if I didn’t mention that Imperative Information Group offers an electronic Form I-9 and E-Verify enhancement product that can take away some of the headaches Kevin mentions during the interview.

 

Slides and Notes for my EEOC Criminal History Guidance Webinar Now Available

After conducting three webinars about the EEOC’s April 25th guidance document and trading innumerable emails and phone calls with clients, friends, and colleagues, I’m finally at a place where I feel comfortable releasing the Gospel According to Coffey on this topic – which is to say that I’ve mixed a lot of fact and some opinion into the presentation and I think it is a reasonable response to the new guidance.

(The rest of this post is about how the sausage was made, so you  might just want to skip down and look at the PDF file.)

The challenge in putting this presentation together is that the EEOC guidance does not exist in a vacuum, though perhaps the EEOC would suggest that it does.

The guidance is more than a “suggestion” but is certainly less than a “rule” that employers must follow. There has been little coverage of that fact in most of the traditional, business, and social media coverage of the guidance’s publication. A publicity campaign by the EEOC and public interest groups like the American Civil Liberties Union and the National Employment Law Project  trumpeting the new guidance as historic and game-changing overran the anemic responses by SHRM and the National Association of Professional Background Screeners. Thus, the media coverage tended to suggest that the new guidance was the new workplace law of the land.

Uh, not so much. Certainly, the EEOC listed a number of  impractical “best practices” that they rather heavy handedly suggest that employers adopt or get ready to be sued. However much of the guidance follows the precedent set by other documents over the last four decades: Title VII of the Civil Rights Act of 1964 (including its 1991 amendments), the Supreme Court decisions in Griggs v. Duke Power Company and Green v. Missouri Pacific Railroad, and two previous EEOC guidance documents issued over 20 years ago. The EEOC has also been signaling their interest in this topic in their investigative and litigation choices, public hearings, and intiatives like E-RACE.

Reviewing the media coverage of the guidance outside of this context would lead those unfamiliar with this history to incorrectly believe that something significant and new has happened. It hasn’t.

So, I tried to quickly cover almost forty years of history in this single presentation, including the development of the “disparate impact” theory in Griggs and Green.  At the same time, I didn’t want to miss the rest of the regulatory landscape affecting employers use of criminal records, including the “ban the box” movement and a host of other state-law considerations.

Then, I turned to try and figure out how reasonable employers who already had solid policies and good management training might address the EEOC’s suggestions of how one might avoid a discrimination suit. One of those ideas involved coopting a process already required in many cases by the Fair Credit Reporting Act, so I found myself giving a very brief primer on employers’ responsibilities under the FCRA.

The feedback from the webinar has been very positive. However, some who took our post-webinar survey suggested that some of background information was too basic for experienced HR pros while others thanked me for the in-depth review. Judge for yourself:

This file also includes all 55 pages of the guidance document. If you would rather download this PDF, click on the “View it on Slideshare” button and choose the download option.

As with everything I do, nothing is ever “good enough,” so I’ll continue to tinker with the presentation as I get feedback from the HR community. I am also working to revise the Background Checks Under Fire presentation to incorporate the EEOC’s guidance. I’m making that presentation to the Dallas-Fort Worth Staffing Management Association next week, in case you just can’t get enough of this stuff.

Mike’s FMLA interview with Sheila Gladstone, JD

Each month, I interview an attorney about employment-related legal issues on behalf of the Austin Human Resource Management Association. This month’s interview focuses on common FMLA challenges employers face.

If you are in the Austin area, plan now to attend AHRMA’s April 26th meeting, including the Legal and Regulatory Roundtable that Sheila will be moderating.

With Friends Like These, Who Needs Enemies?

This post may be ill-fitted to this season of brotherly love. If upon reading it, you find it too strong, well, you should have seen the first version!

The Associated Press published a story this weekend about the errors common in the databases used in employment-related criminal background checks. It details the travails of a number of individuals about whom inaccurate, outdated, or misassociated information has been given to employers.

Unfortunately, the gist of the story is correct. Many companies in the background screening industry, including most of the largest firms, play fast and loose with court record information, selling information to employers although they know that the data is bad and will lead to faulty hiring decisions. They ignore the federal Fair Credit Reporting Act’s requirement that they follow “reasonable procedures to ensure maximum possible accuracy” of the reports they deliver and then quickly settle any lawsuits that come along, sometimes for millions of dollars. Hear that: they make so much money selling the bad data to employers that it is worthwhile to settle the cases for millions so that their practices are not scrutinized by the court.

I’ve been banging this drum in front of HR and background screening groups for years and I’m not alone. I’ve also blogged about it extensively. The good news is there are many background screening firms with integrity who refuse to sell the information from databases without first verifying the accuracy of the information against the courts’ original records. In fact, a group of us started an industry group, Concerned CRAs, to bring attention to this issue several years ago.

Unfortunately, the trade association for background screeners, the National Association of Professional Background Screeners (on whose board I have served and whose accreditation standard I helped write), continues to avoid confronting this issue for fear of alienating their largest members and possibly entering into antitrust or restriction of trade issues. Contrary to the suggestion otherwise in the story, NAPBS’ accreditation program does not prohibit the sloppy database practices outlined in the story. In fact, a clause in their accreditation standard that would have required accredited companies to verify database information prior to reporting it to employers was removed at the board’s direction after the accreditation committee recommended its inclusion.

The service background screening firms provide employers is critical. Our information helps protect public and workplace safety as well as firms’ assets and brands. Our ability to help our clients is jeopardized with every anecdote about bad background checks that is published in the newspaper or included in testimony before legislative or regulatory bodies. Every time there is a story about a background check associating a criminal record with the wrong person, a database lies at the heart of the story.

Many in the screening industry have suggested that we need to present a united front to the public, legislators, and regulators who express concerns about the accuracy of instant criminal record databases. “We’ll all sink together” if bad legislation is passed, the argument goes. I’m afraid that if we don’t stop our “friends” in the industry from continuing to drill holes in our boat, we’ll sink even faster.

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