BEST PRACTICES HANDBOOK Anton Associates A Guide to
BEST PRACTICES HANDBOOK Anton Associates A Guide to Understanding a Criminal Record and Hiring a Person with a Criminal History 1
BEST PRACTICES § After 9/11 criminal background checks became a trend with applications stating: No Arrests, Clean Background, No Felony Convictions…. § With nearly one in four adults having a criminal record, backgrounds began creating a barrier to employment for many. § Many with only minor offenses, or charges that never transpired into convictions. Anton Associates 2
BEST PRACTICES § According to a Society for Human Resource Management (SHRM) study July, 2012, approximately 87% of employers conduct criminal history reports on some job applicants. § 69% of employers conduct criminal backgrounds on all applicants. Anton Associates 3
REASONS EMPLOYERS CONDUCT BACKGROUNDS § Reduce legal liability and negligent hiring § Ensure safe work environment for employees 49% § Reduce/prevent theft and other criminal activity § Comply with applicable state law requiring background § Assess the overall trustworthiness of the job candidate § Other 52% 36% 28% 17% 5% Respondents were able to select top two reasons, so percentages do not equal 100% Anton Associates 4
BUREAU OF JUSCTICE STATISTICS According to the Bureau of Justice Statistics (BJS), most workplace violence is committed by strangers, not employees. The Bureau reported past and/or current employees account for only 14 -16% of workplace violence, with no evidence any of them had a criminal history. The Bureau of Justice Statistics (BJS) - the United States' primary source for criminal justice statistics Anton Associates 5
CONDUCTING A CRIMINAL BACKGROUND Anton Associates 6
EEOC ENFORCEMENT GUIDANCE April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. Requiring employees consider the relationship between an arrest or conviction and the job applicant’s qualifications for the particular job. Guidelines include three approaches, (GREEN FACTORS) in validating employment for someone with a criminal record. Anton Associates 7
THE EEOC GREEN FACTORS 1) Nature & Gravity of the Offense or Conduct; Consideration of the relevance of the record and the risks, if any, for position the person is applying for. 2) Time elapsed since the offenses, conduct, and/or completion of sentence; There are no specific timeframes, amount of time passed and the risk posed should be taken into consideration. 3) Nature of the job held or sought; Identifying the job title/duties and essential functions and circumstances under which the job is performed. Considering the job environment and determining if applicant/employee is fit or unfit for the job. Anton Associates 8
HOW DO YOU CONDUCT A BACKGROUND? q IN-HOUSE q FINGERPRINTING AT STATE BUREAU OF IDENTIFICATION (SBI) q OUTSOURCE TO A COMMERCIAL BACKGROUND COMPANY § According to the study, 73% of organizations completely or partially outsource background checks. Anton Associates 9
BACKGROUND CHECK VERIFICATION § A Background Check is intended to verify information already provided by the applicant on the job application and in the interview and must be: ØAccurate ØComprehensive ØLegal ØTimely Anton Associates 10
NATIONAL CONSUMER LAW CENTER § There are no licensing requirements for Criminal Background third-party screening companies to follow. § The National Consumer Law Center (NCLA), reported many Criminal Background Screening companies routinely: ü MISMATCH PEOPLE ü OMIT CRUCIAL INFORMATION ABOUT A CASE ü REVEAL SEALED OR EXPUNGED INFORMATION ü MISCLASSIFY OFFENSES Anton Associates 11
COMPARING BACKGROUND REPORTS Delaware State Police, State Bureau of Identification Includes state of Delaware information, both adult and juvenile records Fingerprinting at one of the three locations is required Cost of fingerprinting is $52. 50 person Federal Bureau of Investigation Includes information from all states; federal convictions; some juvenile records Obtain by being fingerprinted at one of the three locations in Delaware Cost of fingerprinting for a complete background check is $69. 00 person Consumer Reporting Agencies May or may not include adult and juvenile charges May or may not include information from all states May or may not include federal convictions Obtain usually, by just a name and birth date search Information not always updated on regular basis and therefore, not always as accurate Cost varies Anton Associates 12
READING A CRIMINAL BACKGROUND Anton Associates 13
REVIEWING RESULTS § Review all background screening results: - Ensure information matches correctly - Exact Name Match - Exact Social Security Number Match - Exact Birth Date Match - Check accuracy of report with applicant Anton Associates 14
CRIMINAL HISTORY INFORMATION Date of Arrest: The exact date that the arrest occurred. Name Used: Name the person gave the police at the time of arrest. Charging Agency: The arresting enforcement agency, may not always be included on report. Charges: The offenses the person is suspected of committing. Status of the Case: Current standing, shows if there was or was not a conviction, or if the case is still pending. Disposition: The court’s final result or determination of the charge. Charge/Offense: There are 3 types of criminal violations , Petty Offense, Misdemeanor and Felony. Anton Associates 15
CHARGES/OFFENSES § PETTY OFFENSE/VIOLATION: A minor incident - generally a fine. § MISDEMEANOR: More serious like simple assault, minor shoplifting, harassment; usually involves an arrest, a trial/hearing, and possibly a fine, probation and/or jail time. Four levels of misdemeanors. § FELONY: Most serious, includes arson, murder, rape, drug dealing, robbery; Punishment usually a year or more of prison time and possibly a fine. Classified according to severity and include nine (9) classes. Anton Associates 16
JUVENILE RECORD JUVENILE CHARGES AND OFFENSES § Juveniles can be arrested for the same crimes as adults. § The major difference is the goal of Family Court is to address the “best interest of the child”, so they will change behavior. § Arrest/Juvenile Found Delinquent are noted on the record. In the state of Delaware a Juvenile Record is not sealed to the public. Anton Associates 17
NON GULITY DISPOSITIONS Deferred Judgment: No finding of guilt. Judgment set aside and defendant must comply with conditions given, once completed charges are usually dropped. (Probation Before Judgment (PBJ), or First Offender Option. ) Dismissed: Decision not to prosecute or failure to produce sufficient evidence. Nolle Prosse / Nolle Prosequi: Latin legal phrase meaning “be unwilling to pursue”, or “do not prosecute”. Prosecutor’s decision to voluntarily discontinue criminal charges before a verdict is rendered. Pardoned: Exemption of a convicted person from penalties of an offense or crime by the power of the executor of the laws, in Delaware, the Governor. Pending: No outcome determined on the final disposition. Often appears in error. If the offense is a couple years old, it is likely disposition was determined, but was never entered into the database. Anton Associates 18
GULITY/DELINQUENT DISPOSITIONS Guilty: Found to have violated a criminal law by a jury or judge Juvenile Found Delinquent: A child or young person guilty of some offence, act of vandalism, or antisocial behavior or whose conduct is beyond parental control and who may be brought before a juvenile court Nolo Contendere / No Contest: Plea to court the defendant will not dispute the charges. Person does not contest charges, but does not claim guilt. Although not pleading guilty, he or she is often treated as guilty. Anton Associates 19
ARREST VS. CONVICTION § The EEOC emphasizes arrests (pending and non-pending) and convictions be treated differently, as an arrest does not establish that criminal conduct has occurred. § They discourage relying on an arrest record, but state employers may make an employment decision if the conduct underlying the arrest makes the person unfit for the position in question. Anton Associates 20
CONVICTION RECORDS EEOC states conviction records are sufficient evidence a person engaged in particular conduct. They require when using conviction records limit it to those job related for the position in question and consistent with business necessity. Anton Associates 21
COMMON CHARGES FOUND ON CRIMINAL HISTORY REPORT Anton Associates 22
TERRORISTIC THREATENING § Can arise from a violent threat; “I’ll get you”, “I’ll kill you”, does not usually involve the violence associated with a terroristic activity. § Threatening to commit a crime likely to result in death or injury to another person or property. § Class A Misdemeanor unless the person is above age 62, or the place was a daycare, school or elderly care facility, then it is a Class G Felony. Anton Associates 23
ASSUALT CHARGES § One of the most common criminal charges § Charged by degree - First through Third § First Degree the most serious § Third Degree the most common § Degrees of assault are defined according to state law and vary depending on the state. Anton Associates 24
DEGREES OF ASSUALT § THIRD DEGREE ASSAULT: Knowingly or recklessly causing bodily injury to another. Class A Misdemeanor. § SECOND DEGREE ASSAULT: Intentional serious physical injury or injury by means of a deadly weapon/dangerous instrument. Class D Felony. § FIRST DEGREE ASSAULT: Attempting to kill or cause physical injury to another person. Class B Felony unless serious physical injury is inflicted in which case it is a Class A Felony. Anton Associates 25
OTHER CHARGES § OFFENSE TOUCHING - Intentionally touching a person with a member of his/her body or with an instrument. - Intentionally striking a person with saliva, feces or bodily fluid. - Unclassified Misdemeanor or Class A Misdemeanor. § MENACING - By movement of body or an instrument, intentionally placing a person in fear of imminent physical injury. - Unclassified Misdemeanor. § AGGRAVTED MENACING - Displaying what appears to be a deadly weapon, intentionally placing another person in fear of imminent physical injury. -Class E Felony. Anton Associates 26
DELAWARE TITLE 11 CODE - Many charges fall into different classes depending on the degree of the offense. - For information about the Justice System; Crimes and Criminal Procedures; Specific Offenses the Delaware Title 11 Code is on-line. Anton Associates 27
LET’S REVIEW CRIMINAL BACKGROUND REPORTS Anton Associates 28
EASYBACKGROUNDS This background report includes a criminal check, employment verification, education verification and driving history. Two flags signify the results for the criminal record and employee verification should be reviewed carefully. Anton Associates 29
EASYBACKGROUNDS The first flag indicates a criminal history. A Felony Conviction, Possession of Controlled Substance. Anton Associates 30
EASYBACKGROUNDS The second flag signifies a discrepancy with employment verification as the employee states enddate was 12/2002 and employer states enddate was 12/2000. Education Verification is fine. Anton Associates 31
EASYBACKGROUNDS Driving history verification is fine. Anton Associates 32
STATE BUREAU OF IDENTIFICATION Most recently, Mr. Johnson obtained a shoplifting under $1500 charge and received a Probation Before Judgment, meaning, there was no finding of guilt. The other 3 adult charges were dismissed. The only charge Mr. Johnson was found responsible for was Juvenile Found Delinquent. Anton Associates 33
PRECHECK REPORT Pre. Check Company offers pre-employment screening services checking on employment references and national criminal searches. Anton Associates 34
PRECHECK REPORT PRECHECK PROCESS ü Candidate completes on-line application. ü Candidate completes background check form at time of interview. ü Background information is forwarded to Pre. Check day of interview. ü Pre. Check completes Employer References, criminal background for each address listed and verifies education. ü Full report completion varies from 3 to 8 days. ü Pre. Check reflects charges and convictions as far as ten (10) or more years. Anton Associates 35
PRECHECK REPORT § Employer is a healthcare provider and must use - Department of Health & Social Services Criminal Background Check Unit Disqualifying Crimes Conviction/Time Parameters, set-forth by the Delaware Health & Social services Long Term Care Residents Protection Division. § Felony conviction of Manufacture or Distribute a Controlled Substance, was in October 2001. The Job Applicant completed the 10 year time parameter and was eligible for hire. Anton Associates 36
INDIVIDUALIZED ASSESSMENT The EEOC recommends, as the best way to protect against lawsuits, a case-by-case approach ensuring those with criminal records are not automatically barred from obtaining employment for: - Youthful indiscretions - Minor run-ins with the law - Serious offenses from the past. Anton Associates 37
INDIVIDUALIZED ASSESSMENT § Facts or circumstances surrounding the offense or conduct. § Number of convicted offenses. § Age at time of conviction or release from prison. § Evidence the applicant held a similar position before conviction. § Length and consistency of employment before and after offense. § Employment or character references provided. § Is the person bonded or can they obtain bonding? § What steps to rehabilitation have they taken? § Their attitude! Anton Associates 38
TRAIN AND EDUCATE Train and Educate Department Managers and Decision-Makers so they understand Title VII’s anti-discrimination provisions to ensure Best Practices are conducted throughout the hiring process. Anton Associates 39
PARDONS AND EXPUNGEMENTS Anton Associates 40
A PARDON § Official forgiveness of an offense and cancellation remaining penalties. § Granted by a head of state, such as a Governor or President. § In Delaware, the Governor cannot grant a pardon without a recommendation from a majority of the Board of Pardons. § The Delaware Board of Pardons includes: Lieutenant Governor (Chairperson), Secretary of State, State Treasurer Chancellor, and Auditor of Accounts. Anton Associates 41
A PARDON § An unconditional pardon fully restores all civil rights to the person. § While a pardon does not erase the person’s criminal record, it changes all “Guilty” dispositions to “Pardoned. ” § While an employer may still consider the pardoned offense in a hiring decision, it is recommended that the employer disregard it. Anton Associates 42
AN EXPUNGEMENT § Seals a criminal record, so that it does not appear on background checks. § When an employer runs a background check for an expunged record, the report should state that the individual has no criminal record. § In Delaware, expungement is usually limited to individuals with either; 2 or fewer juvenile adjudications; OR No adult convictions; OR Pardoned adult misdemeanors Anton Associates 43
APEX PROGRAM ADVANCEMENT THROUGH PARDONS AND EXPUNGEMENTS Anton Associates 44
APEX PROGRAM § In 2011, under the direction of the Welfare (TANF) Employer’s Committee, a governor-appointed committee, the APEX Program was launched in partnerships with Ameri. Corps Vista. § The APEX program is dedicated to providing opportunities to individuals with criminal histories who wish to obtain gainful employment. The program accomplishes this by helping clients through the pardon and expungement process, providing employer education and advancing legislative reform. Anton Associates 45
APEX PROGRAM - Provides 1 -on-1 assistance to individuals with criminal records who wish to apply for a pardon or expungement. - The goal is to reduce barriers to employment. - Operated by the Division of Vocational Rehabilitation and the Division of Social Services. - Utilizes the help of community volunteers. - Currently located in Kent and Sussex Counties, with plans to expand to New Castle County. Anton Associates 46
APEX PROGRAM ELIGIBILITY FOR APEX PROGRAM - Arrested, but never found guilty of an offense. OR - At least three (3) years since last arrest, or completion of probation, parole, or incarceration. - Offenses in State of Delaware. - No pending charges. - Not represented by an attorney. Anton Associates 47
PARDON CRIMINAL RECORD August 2005, Jane Doe was granted a pardon by Governor Minner of two misdemeanor convictions. February 2012, the APEX Program assisted Jane Doe with applying for a Discretionary Expungement. October 2012, Jane Doe was granted a Discretionary Expungement of her criminal record. Anton Associates 48
ANTON ASSOCIATES § To learn more about Anton Associates you may access the website at: antonassociates. net Contact: Telephone: Neva Anton, Anton Associates Email: Anton. Associates@aol. com (877) 393 -3991 Anton Associates 49
ABOUT THE SPEAKERS Neva Anton, owner of Anton Associates since 2000, provides training and program development, career counseling and job placement to hundreds of managers, employees and potential employees, throughout the State of Delaware. Neva known for her unique, holistic approach to training has delivered career workshops which include Customer Service, Leadership, Creative Communication, Team Building, Life and Work Skills. Under the direction of the Delaware Economic Development Office, Workforce Director, Sonia Aguilar, Neva created the Best Practices Guidebook, designed to assist employers in understanding a criminal record and hiring a person with a criminal record. Joining Neva in the presentation is Matthew Rosen, a Program Specialist for APEX. A National Merit Commended Scholar and Mensa Member, Matthew received a Master’s degree from the Faculty of Law at the University of Oxford, in the UK and a Bachelor degree in Criminal Justice from Temple University, Philadelphia, PA. Prior to working for the APEX Program, Matthew worked as a Research Assistant for Temple University, a Communications Contributor at the Pennsylvania Prison Society and as a Trade Associate for the City of Philadelphia, Department of Commerce, International Division and Atid Economic Developers of Israel, LTD. , Jerusalem, Israel. Matthew provided extensive research, editing and guidance in the creation of the Best Practices Guidebook for the APEX Program. Anton Associates 50
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