BEST PRACtICES HANDBOOK

January 9, 2018 | Author: Anonymous | Category: Social Science, Law, Criminal Justice
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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. Anton Associates

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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 Anton Associates

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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. Anton Associates

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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. Anton Associates

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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. Anton Associates

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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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