BEST PRACtICES HANDBOOK

Report
BEST PRACTICES
HANDBOOK
Anton Associates
A Guide to
Understanding
a Criminal
Record and
Hiring a
Person with a
Criminal
History
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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.
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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.
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REASONS EMPLOYERS CONDUCT
BACKGROUNDS






Reduce legal liability and negligent hiring
Ensure safe work environment for employees
Reduce/prevent theft and other criminal activity
Comply with applicable state law requiring background
Assess the overall trustworthiness of the job candidate
Other
52%
49%
36%
28%
17%
5%
Respondents were able to select top two reasons, so percentages do not equal 100%
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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
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CONDUCTING A
CRIMINAL
BACKGROUND
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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.
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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 complet ion of sentence;
There are no specific timef rames, amount of time passed and the
risk posed should be taken into considera tio n .
3) Nature of the job held or sought; Identif ying the job title/du ties and
essential functions and circu mstan ces under which the job is performed .
Considering the job environ men t and determin in g if applican t/emp lo yee is fit
or unfit for the job.
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HOW DO YOU CONDUCT A
BACKGROUND?
 IN-HOUSE
 FINGERPRINTING AT STATE BUREAU
OF IDENTIFICATION (SBI)
 OUTSOURCE TO A COMMERCIAL BACKGROUND
COMPANY
 According to the study, 73% of organizations completely or
partially outsource background checks.
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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:
Accurate
Comprehensive
Legal
Timely
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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:
 MISMATCH PEOPLE
 OMIT CRUCIAL INFORMATION ABOUT A CASE
 REVEAL SEALED OR EXPUNGED INFORMATION
 MISCLASSIFY OFFENSES
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COMPARING BACKGROUND REPORTS
 D e l a w a re S t a t e P o l i c e , S t a t e B u re a u o f I d e n t i f i c a t i o n
I n c l u d e s s t a t e o f D e l a w a r e i n f o r ma t i o n , b o t h a d u l t a n d j u v e n i l e r e c o r d s
F i n g e r p r i n ti n g a t o n e o f t h e t h r e e l o c a t i o n s i s r e q u i r e d
C o s t o f f i n g e r p r i nt i n g i s $ 5 2 .5 0 p e r p e r s o n
 F e d e r a l B u re a u o f I n v e s t ig a t i o n
I n c l u d e s i n f o r ma t i o n f r o m a l l s t a t e s ; f e d e r a l c o n v i c t i o n s ; s o me j u v e n i l e r e c o r d s
Obtain by being fingerprinted at one of the three locations in Delaware
C o s t o f f i n g e r p r i nt i n g f o r a c o mp l e t e b a c k g r o un d c h e c k i s $ 6 9 . 0 0 p e r p e r s o n
 C o n s u me r R e p o r t i n g A g e n c i e s
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
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READING A CRIMINAL
BACKGROUND
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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
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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 enforcemen t agency, may not always be
included on report.
Charges: The offenses the person is suspected of comm itting .
Status of the Case: Current standing, shows if there w as or w as not a
conviction , or if the case is still pending.
Disposition: The court’s final result or determin ation of the charge.
Charge/Offense : There are 3 types of crimina l violations ,
Petty Offense, Misdemean o r and Felony.
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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.
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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.
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NON GULITY DISPOSITIONS
D e f e r re d J u d g me n t : N o f i n d i n g o f g u i l t . J u d g me n t s e t a s i d e a n d d e f e n d a n t mu s t c o mp l y
w i t h c o n d i t io n s g i v e n , o n c e c o mp l e t e d c h a rg e s a r e u s u a l l y d r o p p e d . ( P ro b a t i o n B e f o re
J u d g me n t ( P B J ) , o r F i r s t O f f e n d e r O p t i o n . )
D i s mi s s e d : D e c i s i o n n o t t o p r o s e c u t e o r f a i l u r e t o p r o d u c e s u ff i c i e n t e v i d e n c e .
N o l l e P ro s s e / N o l l e P ro s e q u i : L a t i n l e g a l p h r a s e me a n i n g “b e u n w i l l i n g t o p u r s u e ” , o r “d o
n o t p r o s e c u t e ” . P r o s e c u t or ’s d e c i s i o n t o v o l u n t a r i l y d i s c o n t in u e c r i mi n a l c h a rg e s b e f o r e a
verdict is rendered.
P a r d o n e d : E x e mp t i o n o f a c o n v ic t e d p e r s o n f r o m p e n a l t i e s o f a n o ff e n s e o r c r i me b y t h e
p o w e r o f t h e e x e c u t o r o f t h e l a w s , i n D e l a w a r e , t h e G o v e r n o r.
P e n d i n g : N o o u t c o me d e t e r mi n e d o n t h e f i n a l d i s p os i t i o n . O f t e n a p p e a r s i n e r r o r. I f t h e
o ff e n s e i s a c o u p l e ye a r s o l d , i t i s l i k e l y d i s p o s i t io n w a s d e t e r mi n e d , b u t w a s n e v e r e n t e r e d
into the database.
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GULITY/DELINQUENT DISPOSITIONS
Guilty: Found to have violated a crimin al 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.
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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.
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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.
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COMMON CHARGES
FOUND ON CRIMINAL
HISTORY REPORT
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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.
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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.
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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.
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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.
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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.
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LET’S REVIEW
CRIMINAL
BACKGROUND
REPORTS
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EASYBACKGROUNDS
This background
report includes a
criminal check,
employment
verification,
education
verification and
driving history.
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EASYBACKGROUNDS
The first flag
indicates a
criminal history.
A Felony
Conviction,
Possession of
Controlled
Substance.
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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.
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EASYBACKGROUNDS
Driving history
verification is fine.
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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.
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PRECHECK REPORT
PreCheck Company
offers pre-employment
screening services
checking on employment
references and national
criminal searches.
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PRECHECK REPORT
PRECHECK PROCESS
 Candidate completes on -line application.
 Candidate completes background check form at time of interview.
 Background information is forwarded to PreCheck day of
interview.
 PreCheck completes Employer References, criminal
background for each address listed and verifies education.
 Full report completion varies from 3 to 8 days.
 PreCheck reflects charges and convictions as far as ten ( 10) or
more years.
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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.
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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.
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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!
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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.
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PARDONS AND
EXPUNGEMENTS
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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.
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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.
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AN EXPUNGEMENT
 Seals a crimin al record , so that it does not appear on background checks.
 When an emp lo yer runs a background check for an expunged record , the report
should state that the individual has no crimin al record .
 In Delaware, expungemen t is usually limited to individuals with either;
2 or fewer juvenile adjudication s; OR
No adult conviction s; OR
Pardoned adult misd em eano rs
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APEX PROGRAM
ADVANCEMENT THROUGH PARDONS
AND EXPUNGEMENTS
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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 AmeriCorps 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.
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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.
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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.
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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.
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ANTON ASSOCIATES
 To learn more about Anton Associates you may access the
website at: antonassociates.net
Contact:
Neva Anton, Anton Associates
Email: [email protected]
Telephone:
(877) 393-3991
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ABOUT THE SPEAKERS
N e v a A n t o n , o w n e r o f A n t o n A s s o c i at e s s i n c e 2 0 0 0 , p ro v i d e s t r a i n i n g a n d p ro g r a m
d e v e l o p m e n t , c a re e r c o u n s e l i ng a n d j o b p l a c e m e n t t o h u n d re d s o f m a n a g e r s , e m p l o y e e s
a n d p o t e n t i al e m p l o y e e s , t h ro u gh o u t t h e S t a t e o f D e l a w a re . N e v a k n o w n f o r h e r u n i q u e ,
h o l i s t i c a p p ro a c h t o t r a i n in g h a s d e l i v e re d c a re e r w o r k s h o ps w h i c h i n c l u de C u s t o m e r
S e r v i c e , L e a d e r s h i p , C re a t i v e C o m m u n i c a ti o n , Te a m B u i l d i n g , L i f e a n d Wo r k S k i l l s . U n d e r
t h e d i re c t i o n o f t h e D e l a w a re E c o n o m i c D e v e l o p m e n t O f f i c e , Wo r k f o rc e D i re c t o r, S o n i a
A g u i l ar, N e v a c re a t e d t h e B e s t P r a c t i c e s G u i d e b oo k , d e s i g n e d t o a s s i s t e m p l o y e r s i n
u n d e r s t an d i n g a c r i m i n a l re c o rd a n d h i r i ng a p e r s o n w i t h a c r i m i n a l re c o rd.
J o i n i n g N e v a i n t h e p re s e n t at i o n i s M a t t h e w R o s e n , a P r o g r am S p e c i al i s t f o r A P E X . A
N a t i o n a l M e r i t C o m m e n d e d S c h o l a r a n d M e n s a M e m b e r, M a t t h e w re c e i v e d a M a s t e r ’s
d e g re e f ro m t h e F a c u l ty o f L a w a t t h e U n i v e r s i t y o f O x f o rd , i n t h e U K a n d a B a c h e l o r
d e g re e i n C r i m i n al J u s t i c e f ro m Te m p l e U n i v e r s i t y, P h i l a d e l p h i a, PA . P r i o r t o w o r k i n g f o r
t h e A P E X P ro g r a m , M a t t h e w w o r k e d a s a R e s e a rc h A s s i s t a n t f o r Te m p l e U n i v e r s i ty, a
C o m m u n i c a t i on s C o n t r i bu t o r a t t h e P e n n s y l v a n ia P r i s o n S o c i e t y a n d a s a Tr a d e A s s o c i a t e
f o r t h e C i t y o f P h i l a d e l p h i a, D e p a r t m e n t o f C o m m e rc e , I n t e r n a ti o n a l D i v i s i o n a n d A t i d
E c o n o m i c D e v e l o p e r s o f I s r a e l , LT D . , J e r u s a l e m , I s r a e l . M a t t h e w p ro v i d e d e x t e n s i v e
re s e a rc h , e d i t i n g a n d g u i d a nc e i n t h e c re a t i o n o f t h e B e s t P r a c t i c e s G u i d e b o ok f o r t h e
A P E X P ro g r a m .
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