Criminal Backgrounds: Hiring with a record

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Criminal BackgroundsHiring with a record

• Presented byJeremy Pollard
• PT Research, Inc.
• Manchester NH
• 30 October 2009

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Derogatory Information

• Any information relating to a persons past, that
  could be used in making an adverse hiring
  decision.
• Criminal records
• Application/resume discrepancies- What can you
  verify?
• Drug test results Positive/Diluted

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Two applicants...
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Policy, Policy, Policy!

• Establish that
• A background check will be performed
• Applicants who refuse check will not be
  considered
• Results may constitute adverse action

• Include
• Positions covered
• Types of searches to be performed
• Qualification criteria defined by specific
  offense types and offense dates

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Adjudication Matrix

• Detailed list of derogatory information that will
  disqualify an applicant
• Outline time frame in which a conviction is a
  barrier to employment
• Ensures 100 consistency from one hire to the
  next
• Detail eliminates gray area for lesser crimes

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Adjudication Matrix (contd)

• Incorporate state requirements and client
  contract criteria
• Sample languageAny felony conviction from
  within the previous seven years.Any conviction
  for a crime of violence, crime against a
  person, or crimes involving dishonesty.
• Massachusetts long-term care ABC list

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Massachusetts ABC List
http//www.mass.gov/Eeohhs2/docs/eohhs/cori/reg_co
ri.rtf
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State Restrictions

• New Hampshire Strict enforcement of federal Fair
  Credit Reporting Act guidelines (applies to
  Consumer Reporting Agencies)
• New York Corrections Law Model law requiring
  visually conspicuous posting of Article 23-A,
  which states that it is discriminatory to deny
  employment based solely upon a criminal
  conviction
• Massachusetts CORI reform limits access to
  criminal record information

http//www.gencourt.state.nh.us/rsa/html/xxxi/359-
b/359-b-mrg.htm http//www.labor.state.ny.us/agenc
yinfo/article23a.shtm http//www.mass.gov/legis/la
ws/mgl/6/6-172.htm
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Inconsistency Discrimination

• Maintain 100 consistency in basing hiring
  decisions on
• Nature of conviction
• Number of years since conviction/release from
  disposition
• Level of risk the applicant may pose
• Job responsibilities
• Acceptable vs. unacceptable application
  discrepancies

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Analysis of risk

• Precedent set by El v. SEPTA (2007) introduces
  citation of business necessity when making
  adverse hiring decisions
• Qualitative Assessment Consider the risk of harm
  as it relates to the specific job in question
• Quantitative Assessment Consider the likelihood
  that the harm will occur

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Adverse Action Procedures

• Using a CRA (Consumer Reporting Agency)
• Quality Control Whose responsibility?
• Proprietary database record searches
• FCRA Requirements for Adverse Action
• Pre-Adverse Notification Letter
• Allow reasonable time to dispute record
• CRA re-investigation (if record is disputed)
• Final Adverse Notification

http//www.ftc.gov/bcp/edu/pubs/business/credit/bu
s08.shtm
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Adverse Action Procedures

• Non-FCRA regulated searches
• New Hampshire State Police records
• Out-of-state criminal records
• Quality Control of police records
• Employment and Education discrepancies
• Major vs. Minor discrepancies
• False information statement

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Conditional offers and post-employment background
checks

• New Hampshire RSA 1512-d
• Post-employment screening not allowed
• Physical security considerations
• Risk to clients, employees
• Taking adverse action against a dangerous
  employee
• Ongoing monitoring, employee investigations, and
  gossip mills

http//www.gencourt.state.nh.us/RSA/html/XI/151/15
1-2-d.htm
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Questions/discussion