Change is coming.
Major “Fair-Chance” Compliance Changes Coming January 19th
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 described below.
That said, for questions about how Tenstreet’s software is changing, we are happy to help. Please reach out to your Account Manager or email [email protected].
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. We’re making several IntelliApp and dashboard changes to help keep you compliant. A couple of changes below are optional, but our default settings will change the current behavior of your IntelliApp and dashboard. If you do not want the new defaults, you must let us know by January 17th.
Briefly, here is what is changing in Tenstreet on January 19th:
- California Assembly Bill 1008 (CA AB 1008) imposes new requirements on the FCRA consumer letter process. If you use our FCRA letter process, we have new sample pre-adverse and adverse action FCRA letters you may choose to adopt.
- By default, the MVR Section of the IntelliApp will be replaced with a new FMCSR Compliance Section in Ban the Box jurisdictions. If you do nothing, the FMCSR Compliance section will be swapped in only for Ban the Box jurisdictions.
- To help address fair-chance laws in California, Los Angeles, New York City and nationwide EEOC regulations (among others), 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’re less likely to overlook it.
1. Pre-Adverse Action and Adverse Action FCRA Consumer Letters
California Assembly Bill 1008 imposes new requirements on the FCRA consumer letter process. If you use our FCRA letter process, we have new sample pre-adverse and adverse action letters you may choose to adopt as part of your compliance program. You may also provide your own, updated letters. If we do not hear from you, we will not change the content of your letters.
CA AB 1008 created new, expanded requirements beyond those of the FCRA. There are three main areas of change we address in Tenstreet, but there are additional requirements and considerations that extend beyond products Tenstreet offers. As such, your compliance with CA AB 1008 and other laws are ultimately your responsibility. Please consult your legal counsel for how CA AB 1008 affects you and your company. We are offering sample letters that will help you as part of an overall compliance program, but these letters alone will not make you fully compliant when hiring in California (or Massachusetts, San Francisco, and other areas) and Tenstreet cannot make legal recommendations.
Tenstreet Change #1. CA AB 1008 made California a ban the box state. Unless you’re one of the few customers who have opted out of Tenstreet’s Ban the Box functionality, your IntelliApp has already been updated to remove the criminal record section in the same way it already does for the other Ban the Box jurisdictions.
Tenstreet Change #2. CA AB 1008 states that the content of the consumer letters must contain additional company contact information and an explanation of how the applicant/consumer may respond to the letters. The specific requirements of CA AB 1008 are beyond the scope of this notification, but we’ve crafted sample letters that will assist your overall compliance programs’ consumer letter notifications in California, Massachusetts, San Francisco, New York, New Jersey, and other jurisdictions.
To update your consumer letters, you must reach out to your Account Manager and inform them you want to adopt the new sample letters (or letters provided to you by your legal counsel). If you would like copies of the new sample letters, they can send them to you for review. You must also include the name(s) and consumer contact information of your Consumer Reporting Agencies (i.e., your background vendors) and the contact information for who the applicant/consumer should reach out to concerning the content of the consumer reports (usually a department, but it must include the department/individual name, phone number, and email address). We will update your letters with the information you provide.
Tenstreet Change #3. Whether you adopt the letters or not, when you initiate the Pre-Adverse Action letter process, a new pop-up box will ask for the specific criminal record conviction(s) that 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. If you choose not to enter any information into the pop-up, the supplemental attachment will not be included in the letter. 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.
The pop-up can be suppressed, but if you choose this route, you’ll need to sign a disclaimer and indemnification releasing Tenstreet from any liability should the EEOC, plaintiff’s counsel, or other entity call for an investigation.
There are other changes required by CA AB 1008. For example, 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 consult your legal counsel. If you adopt the sample letters, we will update your settings to reflect 10 days.
Also, one recent change we made that you have probably noticed is that Los Angeles and New York City both have forms that they require to be completed and mailed with the consumer letters. We provide links to the Los Angeles (http://bca.lacity.org/Uploads/fciho/FCIHO%20Individual%20Assessment%20and%20Reassessment%20Form.pdf) and NYC (https://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf) documents in the Consumer Letter tool. Also, our sample letters make reference to these forms.
2. FMCSR Compliance Section
By default, the MVR Section of the IntelliApp will be replaced by a new FMCSR Compliance Section in Ban the Box jurisdictions. This change is optional, but you must let us know if you don’t want this behavior. Also, you have the option to remove the MVR section all together and use the FMCSR section exclusively in all jurisdictions (not just those covered by 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, except in specific circumstances. Almost all of Tenstreet’s IntelliApp clients rely on a feature we implemented when we first saw these laws. This feature removes the Criminal Record section of the IntelliApp automatically when the applicant lists his/her current residence in a Ban the Box jurisdiction. This helps keep you in compliance with Ban the Box while allowing you to ask criminal record questions in areas with no Ban the Box laws.
One thing we’ve seen recently, however, is that a couple questions in Tenstreet’s MVR section have been considered to be “conviction” or “criminal” questions in some jurisdictions. This is a trend that we don’t see reversing course. Our customers don’t want to simply remove the entire IntelliApp MVR section in the same way we remove the Criminal Record section, as there are other very important questions in the MVR section that the FMCSRs require. Therefore, we’ve created a new IntelliApp section called “FMCSR Compliance.”
The Federal Motor Carrier Safety Regulations (FMCSRs) require trucking companies to ask about and obtain specific information from applicants. For most questions, the information you must obtain is either exactly like or very similar to the questions you already ask for in the MVR section, so the FMCSR section will look familiar – but it is different. Here’s how we plan to implement the new section:
- For brand new Tenstreet customers, we will be implementing the FMCSR section in place of the MVR section. Because it’s more likely to be viewed as compliant across the nation, we also recommend that all of our existing customers (you) do the same after reviewing the changes with your legal counsel (i.e., we recommend that you remove the MVR section and replace it in all circumstances with the FMCSR section). If this is what you want to do, please email your Tenstreet Account Manager and request that your IntelliApp be updated for all jurisdictions.
- For customers who choose to continue to use the MVR section, we are making one significant change. By default, when the applicant lives in a Ban the Box jurisdiction, we will dynamically swap out the MVR section for the FMCSR section. We believe this will make you more compliant. If you do not want to automatically swap out the MVR section with the new FMCSR section, you must let your account manager know by January 17th. After January 19th, the MVR section will be swapped out for the FMCSR section in Ban the Box jurisdictions. Regardless of your choice, the Criminal Records section will continue to disappear in Ban the Box jurisdictions if your IntelliApp is currently configured this way (just like normal).
If you want to use the MVR section in all jurisdictions and never want to swap it out with the FMCSR Compliance section, we can support this, but you must let us know by January 17th, because the default behavior is changing on the 19th.
You can see the FMCSR section screenshot below. There are five main questions. If all are answered no, the applicant moves on to the next IntelliApp section. If the applicant answers “yes” to a question, an additional question opens up. Because each question stems from a requirement of the FMCSRs, we include the specific FMCSR citation supporting why you’re asking that question in a Ban the Box jurisdiction. For convenience, here are the questions:
For all customers, the Phone App and Update Info screens will have space for both the new FMCSR section and the MVR section so you can fill out or update either one. This is necessary because some apps you update will have an MVR section (they may not be in a Ban the Box state, or simply be older), while others will the FMCSR section.
3. 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. Any scoring rules you have that are based on information that requires Individualized Assessment will be removed on January 19th.
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.
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.”
Standard scoring rules often resulted in the “blanket exclusions,” and some of these laws also apply to the company or software used to provide automatic scoring/blanket exclusions. This means that Tenstreet is removing any scoring on questions in the criminal record, violations, MVR, and FMSCR sections. Instead, we will flag the record when the applicant gives a “yes” answer in the Criminal Record section, MVR Section, or FMCSR Section, allowing you to determine what you want to do next. If you have a scoring rule based on violations in the IntelliApp Violations section, that will also trigger the Individualized Assessment tool.
Important Note: If you have customized questions in the Company Questions section of the application that concern violations (e.g., “In the past five years, have you been convicted of Reckless Driving?”), this will NOT trigger the Individualized Assessment notification (but we are removing the scoring). We are not removing the question from the page, however. If you have such a question and want a specific violation to trigger the Individualized Assessment tool, ask your Account Manager to configure it from the Violation section, instead.
As we get closer to the 19th, we will provide additional information on what the Individualized Assessment tool looks like in the dashboard and how to use it.
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 outside of Tenstreet, as well as to provide a better understanding of what is coming, and what is expected.