Ban the Box Laws and Their Impact on Employers Legal Disclaimer - - PowerPoint PPT Presentation

2016 Montana SHRM Conference

Ban the Box Laws and Their Impact on Employers

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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
• ther third party legal counsel.

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Agenda

• What, Why, & Who
• A Brief History
• Survey of the Universe
• Navigating the Compliance Maze
• Solving the Puzzle
• Q&A

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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

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A Brief History

Evolution of Ban the Box Laws

1998

• Hawaii 1st state

to “Ban the Box” 2005-2007

• 1st major cities
• Removes Box
• Impacts public

employers (Boston, Austin, Oakland) 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)

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Survey of the Universe Jurisdictions & Scope

*Source – National Employment Law Project. Current as of April, 2016.

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Survey of the Universe Jurisdictions & Scope

*Current as of March 2016

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Survey of the Universe Jurisdictions & Scope

*Current as of March 2016

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Survey of the Universe Jurisdictions & Scope Stars of the show:

San Francisco

• Advertisement restrictions, after 1st 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 1st interview inquiry
• Offer withdraw procedures, special adverse notice
• Dispute process (2 day wait)

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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 1st/2nd Interview or Conditional Offer

(NJ, OR, Columbia, Rochester)

• Notification of Denial, Copy of Record and Dispute

(MA, Seattle, NYC, Philadelphia)

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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

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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

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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

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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

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Questions

Thank you!

Chris Christian - Compliance Manager ADP Screening & Selection Services christopher.christian@adp.com