Considerations for Hiring Workers with Criminal Records A presentation for the 2013 DisAbility Jobs Summit October 9, 2013 Columbus, Ohio October 9, 2013

1.92 million Ohioans have a felony or misdemeanor conviction 1 in 6 DisAbility Jobs Summit, 10/9/2013 | 2 Ohio Justice & Policy Center, 2011

1.Employers seek to avoid problems by rejecting all job applicants with criminal records. 2.Categorically excluding employees with criminal records creates new problems. DisAbility Jobs Summit, 10/9/2013 | 3

Passing Through the Gate -- Employers can build an effective workforce that INCLUDES workers with criminal records. DisAbility Jobs Summit, 10/9/2013 | 4

The First Gatepost: Why employers reject job applicants with criminal records a.Negligent-hiring liability b.Collateral consequences of conviction -- see the CIVICC database DisAbility Jobs Summit, 10/9/2013 | 5

Negligent Hiring Elements (1) : – Employment relationship; – Employee's unfitness or incompetence; – Employer's actual or constructive knowledge of such unfitness; + DisAbility Jobs Summit, 10/9/2013 | 6

Negligent Hiring Elements (2): – Employee's act or omission caused the plaintiff's injuries; and – Employer's negligence in hiring or retaining the employee was a proximate cause of the injury. Employees action was reasonably foreseeable. DisAbility Jobs Summit, 10/9/2013 | 7

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 8 Employer research is key to avoiding liability for Negligent Hiring: Employers have a duty to make a reasonable investigation of an applicants fitness before hiring. The extent varies with the circumstances.

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 9 Contact Former Employers: Request that applicant specifically authorize potential employer to contact former employers and release employment information. Dont ask for references if you arent going to check them. If using an investigative agency to gather an applicants employment history, sign an indemnification agreement.

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 10 Ask Former Employers: Employment Dates Job Titles Pay Rates Work Habits Examples of positive traits are an excellent way to avoid negligent hiring claims. Whether they would hire employee again.

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 11 Check Personal References too: If Applicant cannot produce references despite living in the area for an extended period, this is a red flag. Have applicants signed release readily available. Ask only job-related questions: Other questions could be the basis of discrimination or invasion of privacy claims. Sending reference inquiries by mail provides documentation.

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 12 Check Driving Record IF relevant to the job. If position requires any driving of vehicle on Company business, check applicants driving record. BMV will have information concerning: All traffic violations, Driving-related offenses, Identifying information contained on state- issued license. In addition to moving violations, BMV check can reveal more serious obstacles such as suspended or expired license.

Avoiding negligence liability DisAbility Jobs Summit, 10/9/2013 | 13 Document and retain all information received. Document any unsuccessful attempt at gathering information. Make offer only after completing basic research.

Criminal Background Checks DisAbility Jobs Summit, 10/9/2013 | 14 After all the basic research is completed, conduct a criminal background check IF required by the nature of the job: Will the employee -- Be bonded because of access to money or valuables? Carry a weapon? Drive a company vehicle? Have access to drugs or explosives? Have access to master keys? Have a great deal of contact with the public, patients, or children?

Criminal Background Checks DisAbility Jobs Summit, 10/9/2013 | 15 Ohio law requires record checks for some jobs, such as - School Employees/Bus Drivers - Child and Adult Care Providers - Security Guards/Private Investigators - Providers to Boards of Developmental Disabilities Ohio and federal law impose other collateral consequences on people with criminal records.

Collateral Consequence = Civil Impact (UCCCA) Any penalty, disability, or disadvantage, however denominated imposed on individual [, licensing agency, or employer] as a result of conviction [, arrest, or sentence] which applies by operation of law whether or not the penalty, disability, or disadvantage is included in the judgment or sentence. Civil impacts of conviction | 16 DisAbility Jobs Summit, 10/9/2013 |

Collateral Consequence = Civil Impact Does not include imprisonment, fine, any form of supervision, or costs, including cost of incarceration. Does include mandatory and discretionary consequences affecting employment, housing, family, financial, and civic-participation rights (See R.C ) Civil impacts of conviction | 17 DisAbility Jobs Summit, 10/9/2013 |

2005 Toledo study found 404 consequences in Ohio law. Today, CIVICC contains and counting. Civil impacts affect the whole community : 1.92 million Ohioans have a felony or misdemeanor conviction -- 1 in 6 Ohio Justice & Policy Center, 2011 Civil impacts of conviction | 18 DisAbility Jobs Summit, 10/9/2013 |

Employment exclusion hampers the economy: Former inmates make 40 percent less than before they were incarcerated. Average lost income was $15,600 per year. Pew Center on the States, 2010 Collateral Costs: Incarcerations Effect on Economic Mobility 13.9 million working-age Americans with felony records. Their exclusion from labor market = $57-$65 billion lost U.S. GDP. Center for Economic and Policy Research, 2010 Ex-Offenders and the Labor Market Ohios share of lost GDP = $2 billion Civil impacts of conviction | 19 DisAbility Jobs Summit, 10/9/2013 |

Ohio CIVICC Database DisAbility Jobs Summit, 10/9/2013 | 20 Searchable online database of the CIVil Impacts of Criminal Convictions under Ohio law.

Ohio CIVICC Database criminal conviction s Ohio civil impact TRIGGERS WHAT…? TRIGGERED BY WHICH…? s specific Searchable online database for answering two questions DisAbility Jobs Summit, 10/9/2013 | 21

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| 23 Searching CIVICC DisAbility Jobs Summit, 10/9/2013 |

ABA is building a national database: National Inventory of Collateral Consequences of Conviction (NICCC) DisAbility Jobs Summit, 10/9/2013 | 24 Civil impacts of conviction

The Second Gatepost: Why its no solution to reject all job applicants with criminal records That solution causes more problems: a.Criminal records & the FCRA b.Title VII Enforcement DisAbility Jobs Summit, 10/9/2013 | 25

Criminal Records & the FCRA FYI: The Fair Credit Reporting Act puts duties on consumer reporting agencies (CRAs) and employers regarding creation, dissemination, and use of criminal records in employment decisions. 15 U.S.C. §1681 et seq. DisAbility Jobs Summit, 10/9/2013 | 26

CRAs duties 1.Cannot report arrests after 7 years if salary <$75k 2.Use reasonable procedures to produce maximum possible accuracy 3.If a public record is being reported and is likely to have adverse effect on employment, CRA must either: a)notify subject of record (job applicant) that info is being reported and who requested it; or b)maintain strict procedures to insure info is complete and up to date. DisAbility Jobs Summit, 10/9/2013 | 27 Criminal Records & the FCRA

Are CRAs fulfilling their duties? See National Consumer Law Centers report, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses Mismatched people Critical information missing Sealed/expunged cases reported Misclassified offenses DisAbility Jobs Summit, 10/9/2013 | 28 Criminal Records & the FCRA

Employers duties: 1.Give written notice of intent to check. 2.Get written authorization to check. 3.Give copy of *new* FCRA notice from CFPB. 4.Give notice of adverse decision. 5.Give contact info for reporting agency (or just give a copy of the report). DisAbility Jobs Summit, 10/9/2013 | 29 Criminal Records & the FCRA

Civil damage claim for failure, based on: (a)inaccurate report; (b)caused by failure to use reasonable procedures... + (c)injury (including emotional) (d)... resulting from the inaccuracy. Willful violation can lead to punitive damages. Consumers can also complain to FTC or Consumer Financial Protection Bureau. DisAbility Jobs Summit, 10/9/2013 | 30 Criminal Records & the FCRA

Title VII Enforcement Title VII of the Civil Rights Act of 1964: disparate impact is unlawful if employment practice not job related nor consistent with business necessity. There is extensive evidence of severe racial disparity in criminal justice system. Overbroad employment exclusion based on criminal-justice contact = disparate impact. DisAbility Jobs Summit, 10/9/2013 | 31

Title VII Enforcement EEOC has been saying this since at least Updated Enforcement Guidance on 4/25/2012 just gives much more detail & examples. See Green v. Missouri Pacific RR Co. factors: 1.nature and gravity of offense/conduct; 2.how long since offense and completion of sentence; and 3.nature of job held or sought. DisAbility Jobs Summit, 10/9/2013 | 32

Title VII Enforcement EEOC isnt kidding: – Pepsi settlement, January 2012 – Dollar General lawsuit – BMW lawsuit – J.B. Hunt settlement June 2013 Private lawsuits also can be distracting and expensive even if unsuccessful. e.g., El v. SEPTA, 3 rd Cir. 2007: 3 experts to show business necessity DisAbility Jobs Summit, 10/9/2013 | 33

U.S. Dept. of Labor Training & Enforcement Guidance Letter, May 25, 2012: WIB one-stop staff must screen job postings for possible Title VII violations. Can put up job announcement, but must also post warning about possible Title VII violation. See DisAbility Jobs Summit, 10/9/2013 | 34 Title VII Enforcement

Passing Through the Gate Hiring people with criminal records is possible and profitable a.Fair Hiring Policies: Civil Service and Beyond b.Federal Bonding & Work Opportunity Tax Credit c.Record sealing and State-Issued Certificates: CAE & CQE | 35 DisAbility Jobs Summit, 10/9/2013 |

Fair Hiring Policies in Civil Service Cincinnati, Hamilton Cty., Cleveland and more -- 1.Be clear about statutory barriers up front. 2.Dont ask about criminal records on application. 3.Do record check after exam, interview, & conditional offer. 4.If rejecting, justify relevance of record in writing: individualized consideration, not a matrix. 5.Give copy of record check to applicant and give reasonable time to correct. | 36 DisAbility Jobs Summit, 10/9/2013 |

Fair Hiring Policy Why? Transparent, justifiable decision making Clear expectations for applicants Public policy of supporting redemption because redemption is probable. Get the best workers. Period. | 37 DisAbility Jobs Summit, 10/9/2013 |

Fair Hiring Policy 38 Pamela Paulk, Vice President of Human Resources, Johns Hopkins Medical Center : 91% (73/80) retention Don't look at this as a social program, don't look at this as being altruistic. Look at this as a business decision. DisAbility Jobs Summit, 10/9/2013 |

Federal Bonding - Administered by DRC through Ohio Central School System Work Opportunity Tax Credit DisAbility Jobs Summit, 10/9/2013 | 39 Supports & Incentives - Coordinated in Ohio by ODJFS, jfs.ohio.gov/wotc

Senate Bill 337 The Collateral-Sanction Reform Bill Signed into law 6/26/2012 (Mostly) effective 9/28/2012 House Bill 86 The Justice-Reinvestment Bill Effective 9/30/2011 Mostly sentencing reform DisAbility Jobs Summit, 10/9/2013 | 40 Ohio Supports & Incentives

DisAbility Jobs Summit, 10/9/2013 | 41 For 5 state licensing agencies, SB 337 limits exclusion of applicants with a criminal record: Ohio Optical Dispensers Board Registrar of Motor Vehicles (for motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools) Construction Industry Licensing Board Hearing Aid Dealers and Fitters Licensing Board Director of Public Safety (for private investigators and security guards) unless the offense is a disqualifying offense or crime of moral turpitude. Ohio Supports & incentives Civil Impact changes under S.B. 337:

DisAbility Jobs Summit, 10/9/2013 | 42 Civil Impact changes under S.B. 337 State Board of Cosmetology: cannot deny certification on the basis of prior incarceration or conviction for a crime. O.R.C (K). must assist ex-offenders and military veterans who hold licenses to find employment. O.R.C (F). Drivers License changes Child Support -- New rules on imputed income

DisAbility Jobs Summit, 10/9/2013 | 43 Ohio Supports & incentives New criminal record-sealing rules under SB 337 AS OF 9/28/2012: BASIC RULE: Two misdemeanors; or one misdemeanor and one felony. ORC Same prohibited offenses as before (violence, sex offenses, child victim, traffic) except non-payment of child support. ORC Minor misdemeanors treated as before

DisAbility Jobs Summit, 10/9/2013 | 44 ORC (A) Eligible offender means anyone who has been convicted of an offense in this state or any other jurisdiction and: who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. Ohio Criminal-record sealing:

DisAbility Jobs Summit, 10/9/2013 | 45 Ohio Criminal-record sealing: Juvenile record changes under SB 337 Record sealing (ORC ) - Waiting period reduced from 2 years to 6 months No fee for juvenile-record sealing Sexual battery and gross sexual imposition now CAN be sealed Confidentiality (ORC , ) Juvenile records now explicitly confidential in statute except for aggravated murder, murder, and registration-eligible sex offenses

Certificates of Achievement and Employability & Certificates of Qualification for Employment DisAbility Jobs Summit, 10/9/2013 | 46 Ohio Supports & Incentives

DisAbility Jobs Summit, 10/9/2013 | 47 CAEs & CQEs Two legal effects 1.Converts mandatory civil impact into a discretionary one no guarantee of getting license or privilege 2.Protects employer from negligent- hiring liability

Certificate of Achievement & Employability (CAE) Granted by DRC Only for inmates with less than 1 year left or currently on PRC/parole Must have completed various kinds of programming in prison No limit on types of offenses Must name specific civil-impact use CIVICC ORC DisAbility Jobs Summit, 10/9/2013 | 48

CAE Certificate of Achievement & Employability (CAE) DisAbility Jobs Summit, 10/9/2013 | 49

DisAbility Jobs Summit, 10/9/2013 | 50 Certificate of Qualification for Employment (CQE) ORC CQE provides the same 2 benefits as CAE, but available to many more people: 6 months post-discharge for misdemeanor, 1 year post-discharge for felony. Court decides: Court of county where applicant resides

DisAbility Jobs Summit, 10/9/2013 | 51 Certificate of Qualification for Employment (CQE) By a preponderance of the evidence: (a) Granting the petition will materially assist the individual in obtaining employment or occupational licensing. (b) The individual has a substantial need for the relief requested in order to live a law- abiding life. (c) Granting the petition would not pose an unreasonable risk to the safety of the public or any individual. R.C (C)(3 )

DisAbility Jobs Summit, 10/9/2013 | 52 Certificate of Qualification for Employment (CQE) The court may order any report, investigation, or disclosure by the individual that the court believes is necessary for the court to reach a decision thus the need for a filing fee. Apply at

Applying for a CQE at DisAbility Jobs Summit, 10/9/2013 | 53

Applying for a CQE DisAbility Jobs Summit, 10/9/2013 | 54

Applying for a CQE DisAbility Jobs Summit, 10/9/2013 | 55

Applying for a CQE DisAbility Jobs Summit, 10/9/2013 | 56

Applying for a CQE DisAbility Jobs Summit, 10/9/2013 | 57

Questions? Pam Thurston See also: OJPCs Criminal Record Manual: | 58 DisAbility Jobs Summit, 10/9/2013 |