How to Implement Criminal Background Checks without Violating Current Ban the Box Regulations

Close to 90% of employers conduct background checks on some segment of their employees/job applicants. Conducting background checks is a normal part of business especially if you want to have a safe work environment and hire quality employees. Additionally, employers have the added pressure to ensure they avoid negligent hiring claims. Employers need to balance their concerns for hiring quality employees with compliance of fair hiring practices. The "Ban the Box" campaign has spread far and wide. It is not easy to navigate this landmine and stay within regulations.

The "Ban the Box" initiative was started by a group of formally incarcerated individuals and their families in 2004. However, the first state to follow a "Ban the Box" concept was Hawaii in 1998. " Ban the Box" defined is a ban or removal of the check box in an application for employment where a candidate is asked, if they have ever been convicted of a crime at the onset of the application process.

The goal of this campaign is to have applicant/candidates assessed based on the ability to do the job and not based on any prior criminal history to level the playing field for the formerly incarcerated who have served their time. There are many economic reasons to promote this initiative. There are 70 million US adults with arrests or conviction, many who are turned away from applying due to employers asking about previous criminal records. The cost of these adults on the economy is estimated at $78K-$87K in losses in one year. Employing the formerly incarcerated has a positive impact in the economy. Increases tax contributions and saves money by keeping people out of the penal system.

• What are the clear reasons for "Ban the Box" and how was it started
• What are the restrictions with "Ban the Box" and how can employers navigate the regulations
• Where in the applicant/candidate selection process is it ok to ask about criminal history?
• Implementing criminal background checks that will meet the "Ban the Box" initiatives and guidelines
• What steps can you take to ensure you are not charged with negligent hiring
• Provide an understanding of the EEOC guidelines and goals when it comes to background check screening
• How to ensure you are not violating the "Ban the Box" initiative by integrating appropriate policies and procedures that meet the regulation guidelines
• What tools are there to mitigate "Ban the Box" regulations
• How to manage Third Party Administrators (TPA) or Vendors who are performing background screening services to ensure they are compliant

Employers need to be concerned about "not" considering candidates with criminal records in their employment pool as more states and employers "Ban the Box". It is critical for employers to be aware of which states have established laws eliminating this initiative which can impact them and have them at risk of violating the Title VII. Yes, employers can be sued! The objective of this course is to prepare employers in navigating the "Ban the Box" initiative by balancing the needs of the business with compliance of the regulations. The course will identify the process in selecting candidates based on the employee's experience and qualification instead of prejudging them based on their conviction. In addition, employers will have the opportunity to see what states require employers to adhere to the guidelines.

Prior to "Ban the Box" Initiatives (also called Fair Chance), effective 2012, the Equal Employment Opportunity Commission (EEOC) updated the "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964". In this guidance, it was clear the position taken by the EEOC was to reduce discrimination against people who were convicted of crimes and served their time. The EEOC encourages employers to judge candidates not by their arrest or conviction record but by their qualification and ability to perform the job. One of the goals of the EEOC's guidance was to help people in demographic groups with higher incarceration rates (identified as Black and Latinos as per the EEOC) get jobs and not be excluded from the candidate pool due to a criminal history.

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• Compliance professionals
• HR professionals

Margie Faulk is a senior level human resources professional with over 15 years of HR management and compliance experience. A current Compliance Advisor for HR Compliance Solutions, LLC, Margie, has worked as an HR Compliance advisor for major corporations and small businesses in the small, large, private, public and Non-profit sectors.  Margie has provided small to large businesses with risk management strategies that protect companies and reduces potential workplace fines and penalties from violation of employment regulations. Margie is bilingual (Spanish) fluent and Bi-cultural.

Margie’s area of expertise includes Criminal Background Screening Policies and auditing, I-9 document correction and storage compliance, Immigration compliance, employee handbook development, policy development, sexual harassment investigations/certified training, SOX regulations, payroll compliance, compliance consulting, monitoring US-based federal, state and local regulations, employee relations issues, internal investigations, HR management, compliance consulting, internal/external audits, and performance management.

Margie is a speaker and accomplished trainer and has created and presented compliance seminars/webinars for over 16 US and International compliance institutes. Margie has testified as a compliance subject matter expert (SME) for several regulatory agencies and against regulatory agencies, thank goodness not on the same day. Margie offers compliance training to HR professionals, business owners, and leadership to ensure compliance with workplace and regulations.

Margie’s unique training philosophy includes providing free customized tools for all attendees. These tools are customized and have been proven to be part an effective risk management strategy. Some of the customized tools include the I-9 Self Audit. Correction and Storage program, Ban the Box Decision Matrix Policy that Employers can provide in a dispute for allegations, Family Medical Leave Act (FMLA) Compliance Guide, Drug-Free Workplace Volatile Termination E-Book and other compliance program tools when attendees register and attend Margie’s trainings.

Margie holds professional human resources certification (PHR) from the HR Certification Institution (HRCI) and SHRM-CP certification from the Society for Human Resources Management. Margie is a member of the Society of Corporate Compliance & Ethics (SCCE).