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
A Brief History Evolution of Ban the Box Laws 2015-Present 2012-2014 • More Private 2008-2011 • More cities & Employer Impact • More Major states pass laws • Restrictions of Cities Join BtB • Impacting Use of Records 2005-2007 Movement private • 1 st major cities • Individual • Timing of employers 1998 Assessments • Removes Box Inquiries • Special Notices • Hawaii 1 st state • Impacts public • Advanced • 3 More States • Discrimination employers timing of inquires to “Ban the Box” Join Movement • Special Notice (Portland, • Most Public, (Boston, Austin, Philadelphia, Some Private Oakland) (San Fran, NYC, OR, NY, Impact Chicago, Buffalo, VA, OH) Seattle, IL, CO, (Philadelphia, MN) NYC & CA, MA) 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
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