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 other 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, & WhoBan the Box Overview

What are “Ban the Box” Laws?“Fair Chance Policies”

Why? Remove unfair barriers Judge applicants on their qualificationsRecidivism

Who is Impacted?Public & private employersContractors & 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 HistoryEvolution 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 UniverseJurisdictions & Scope

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

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Survey of the UniverseJurisdictions & Scope

*Current as of March 2016

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Survey of the UniverseJurisdictions & Scope

*Current as of March 2016

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Survey of the UniverseJurisdictions & 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 UniverseJurisdictions & 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 PuzzleBan 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 PuzzleBan 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 PuzzleBan 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 ManagerADP Screening & Selection Serviceschristopher.christian@adp.com