How to Stay Compliant with the Latest Fair-Chance and Ban the Box Laws

Leah Kelly Compliance 2 Comments

Required Legal Disclaimer: The following information on specific laws and regulations is offered as educational information and does not constitute legal advice. We recommend that you consult with qualified legal counsel on all of the issues, laws, and regulations we refer to below.

As you’re probably aware, fair-chance laws such as “Ban the Box” or California’s recent Assembly Bill 1008 are being implemented in cities and states around the nation. Experts at Tenstreet have spent a lot of time researching these changes, meeting with lawyers, and making systematic improvements to our software. These improvements, when integrated into a client’s overall compliance program, streamline the tasks associated with compliance and remove the drudgery – helping keep clients compliant.

Not a Tenstreet Client?

Now is a great time to become one. The laws are continuing to change and become more complicated, a trend that we don’t see reversing course. If we have learned anything in our latest round of improvements, it’s that many companies have not kept up with the compliance regulations around the country as they’re being implemented. Using Tenstreet can significantly reduce the burden of these new rules.

The cost of non-compliance can be substantial. Lawyers are actively targeting both big and small trucking companies with compliance-related lawsuits. We are aware of over a dozen trucking companies who have been sued in the last quarter alone. FCRA-related lawsuits can be extremely expensive to defend and it only takes one missed letter to lose a case.

“FCRA-related lawsuits can be extremely expensive to defend and it only takes one missed letter to lose a case.”

Read below for a summary of some of the biggest changes, their implications, how they affect you – and most importantly – how Tenstreet’s software and services can help keep you compliant.

1 – The IntelliApp

CA AB 1008 made California a ban the box state. Tenstreet clients didn’t have to worry about this though, as we automatically update our online, mobile-friendly application to handle newly-added Ban the Box jurisdictions as they happen. When an applicant lives in a Ban the Box jurisdiction, we dynamically remove criminal record questions. If you use the IntelliApp, you can trust that your application will be updated each time a new jurisdiction moves to Ban the Box.

While the legal language in each Ban the Box jurisdiction differs, what these laws all have in common is that employers are not allowed to ask about “conviction” or “criminal record” information on an employment application (or application to contract), except in specific circumstances.

2 – Pre-Adverse Action and Adverse Action Service

Tenstreet’s Consumer Letters process helps streamline many of the repetitive tasks associated with FCRA pre-adverse and adverse action notifications (and other city/state specific notifications).

The specific requirements of CA AB 1008 are beyond the scope of this blog, but we’ve made four critical updates to our Consumer Letters service that when used together with your own processes helps you be compliant.

  1. Pop-up Box Addition for Specific Criminal Conviction Information

    A new pop-up box will now ask for the specific criminal record conviction(s) to justify beginning the Pre-Adverse Action process. Your response will be attached to the Pre-Adverse Action letter for the applicant to see, allowing them the opportunity to take action. In jurisdictions where we believe this information is required (all of California, Austin TX, Seattle WA, Philadelphia PA, and a couple Maryland counties), we will indicate the info is required in the pop-up box itself. This pop-up is for criminal convictions from criminal records (and not for other consumer information such as what might be found on other consumer reports).

  2. Sample Adverse Action Letters

    We have crafted sample letters that you can adopt for free along with our Consumer Letters product that, when combined with processes at your company and the abovementioned pop-up, help satisfy the 50 state requirements. These will also assist your overall compliance programs’ consumer letter notifications in California, Massachusetts, San Francisco, New York, New Jersey, and other jurisdictions.

  3. Waiting Period Configuration Setting

    CA AB 1008 has very specific requirements about how much time must pass before the Adverse Action letter is sent after the Pre-Adverse Action letter. For example, California law requires a 5-business day waiting period. If, before the waiting period expires, the applicant notifies the employer in writing that he/she disputes the accuracy of the criminal records and is taking specific steps to obtain evidence of the inaccuracy, the employer must further defer the adverse action for an additional 5 business days. Philadelphia already requires that the employer must wait at least 10 business days for the applicant to respond before taking the adverse action. (Therefore, we believe that a 10-day window is best, but again, be sure to consult your legal counsel).

    No matter what you decide, Tenstreet’s Adverse Action service has a custom configuration setting that can be set to automatically send your Adverse Action letter after 10 days – or how ever many days your lawyers might recommend.

  4. Additional Required Enclosures Included

    One recent change that you may have noticed is that Los Angeles and New York City both have forms that they require to be completed and mailed with the consumer letters.

    Our Adverse Action service also handles this requirement by including the Los Angeles and NYC letters as enclosures (along with several others). We also provide handy access to these documents in the Consumer Letter tool.

A Key Take-Away

A non-compliant consumer letter can carry up to 100 times the cost of a non-compliant application. With the promise of easy money driving these lawsuits, it’s only a matter of time before one finds you next – even if you have adopted a compliance program. The tremendous advantages of Tenstreet’s Adverse Action service are clear and remain unparalleled competitively. Let us help!

3 – A New Individualized Assessment Tool

To address new fair-chance laws in California, Los Angeles, New York City and other areas, we’re implementing a free Individualized Assessment notification tool in the Xpress dashboard. When the IntelliApp has info that may need Individualized Assessment, the tool will notify you so you are less likely to overlook the information in the IntelliApp.

Put another way, Tenstreet’s software will flag the applicant record when they provide a “yes” answer to a conviction or criminal record question. This free feature alerts you and gives you the opportunity to decide next steps.

So, What Are Fair-Chance Laws?

Fair-chance laws are the overarching category under which Ban the Box laws fall.

The National Employment Law Project (NELP) defines fair-chance laws to include the following:

  • Integrating the U.S. Equal Employment Opportunity Commission (EEOC) arrest and conviction record guidelines, which require employers to take into account time passed since the offense, whether the offense is related to the job position, and evidence of rehabilitation; and
  • Adopting strong standards of accuracy and transparency to maintain the integrity of background checks when they are required and to protect workers against arbitrary treatment in the hiring process.

According to the EEOC’s Enforcement Guidance page, Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

And according to NELP, “Employers should make individualized assessments instead of blanket exclusions and consider the age of the offense and its relevance to the job. Candidates should be given an opportunity to review background-check results and provide rehabilitation evidence.”

For further reading on this topic, visit NELP’s Ban the Box Fair Chance Fact Sheet.

Visit the Society for Human Resource Management’s article to learn more about How to Conduct Individualized Assessments in Background Checks. This article and the Individual Assessment and Reassessment Form can help guide you should you wish to handle these on your own, outside of Tenstreet, as well as to provide a better understanding of what is coming and what is expected.

Staying Ahead of the Law

Even though we’re not lawyers and are not making legal advice, we will always let you know when we find out about any compliance changes. If we can improve our software to help, we absolutely will. But at the very least, we will always be sure to share how it affects you.

For more information on how Tenstreet can help you stay on this side of the law, please reach out to sales@tenstreet.com. We can give you a tour, talk to you about other services we have that may help solve your specific problems,  and get you into an applicant tracking system that makes compliance a priority – taking the brunt of the effort off of you.

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Comments 2

  1. Does California AB 1008 prohibit employers from asking about ever being *charged* with a crime? The law seems to mention only convictions.

    1. Post
      Author

      Hi Antony – for informational purposes, we can say that CA is addressing criminal records in general on an employment application (and that they don’t want you to ask about them at all, charges or convictions). But for legal advice you’ll want to defer to your lawyer. We’re always happy to recommend one!

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