Sunday, February 21, 2016

No Longer Banned ~ New Law Allows Ex-Offenders to Work with Elderly. What this Means to You!

Elder Care Hiring, Background Checks, & Criminal Records

According to current legislation, anyone convicted of a violent offense or certain non-violent offenses, forgery and theft-related offenses for example, is banned for life from working with the elderly.  This includes anyone seeking work in a nursing home, an adult day care facility, or as a home health care worker.

At least in Pennsylvania, this is about to change.

Ex-Offenders No Longer Automatically Banned from Working with Our Elderly “Tweet This”

A Pennsylvania court has recently ruled that the lifetime ban is both unconstitutional and unenforceable.  

The resulting legislation overturns the Older Adult Protective Services Act that prohibited ex-offenders guilty of any one of a long list of crimes from ever working with the elderly.  This ban was in force no matter how long ago the offense occurred and whether or not it directly related to the job.  

Instead, the court’s decision now follows the EEOC (Equal Employment Opportunity Commission) recommendations concerning criminal history and employment.   Employers hiring for any kind of elderly care services will no longer be able to immediately exclude an applicant based on their criminal history.

In the court’s view, the lifetime ban was in direct conflict with EEOC guidelines.  They also believed that the ban continued to perpetuate disparate impact in hiring when criminal history is used as a way to deny employment.

As a basis for their decision, the court also cited examples of individuals unfairly impacted by the lifetime ban.  Stories included people convicted of a single offense, some as far back as the age of 18, who are continuing to be penalized, despite having committed no further criminal offenses.

Despite this change, protecting our elderly still needs to be our ultimate goal ~ and the court agreed.  However, they believe that this can be accomplished without the lifetime employment ban.

This is where Individualized Assessments come in.

These assessments will help employers evaluate the risk of hiring an ex-offender and help them make an informed decision.  As an employer in the elderly care field, you will now need to take into consideration the nature of the offense, the time that has passed since the offense, and whether the offense directly relates to the job being filled.

Individualized Assessments “keep a strong balance between the rights of Your Company to hire safe and qualified employees, and the chance for ex-offenders to gain employment”.

You can find out more about Individual Assessments (what they are and how you can use them) here!

My take…….

With caveats, I believe removing the lifetime ban for those working with our elderly is a good idea.  In many cases, especially where the applicant is a one-time offender, hiring them in these fields will not put our elderly at increased risk.   

Eliminating the ban will also open up the applicant pool for employers in these industries.  Many of these jobs can be low paying, and attracting the number of workers needed to keep up with the demand is difficult.  Having access to more potential employees can help alleviate this strain.

However, that does not mean that all applicants with a criminal past should be hired.  Those guilty of certain offenses should continue to be excluded.  For example, anyone convicted of elderly or child abuse, violent felonies, or drug trafficking should be hired with great caution, or not at all.  But banning anyone guilty of the lesser crimes that currently keep them from this type of job is unnecessary.

What You Need to Do Now….

Make sure Your Hiring Practices are EEOC/FCRA Compliant
~ Obtain a Signed Release from All Your Applicants.
~ Inform your Applicants of their Rights - copy of report
~ Notify Your Applicants in Writing of any Adverse Action
~ Give Your Applicants a Chance to Mitigate Your Findings

Use Individualized Assessments Wisely
~ Do Not Automatically Disqualify an Applicant with a Criminal History
~ Consider any Applicant with a Criminal History on a Case by Case basis

Be Aware of the Risks for not Following these Guidelines
~ Open Yourself to Charges of Discrimination and Disparate Impact
~ Recognize the Costs of Litigation 

Discover how to Keep Your Business out of the EEOC Radar here!

Implementing these steps will help you continue to hire safely and with compliance.

Knowledge Equals Power.  

Remember, as an employer, you are entitled to know the criminal past of your employees.  This knowledge helps you determine whether it is safe to hire them and also help you assess your employee’s work. 

But having a criminal record shouldn’t immediately mean an automatic lifetime ban from this type of job.  Taking the time to look at your applicants as individuals, and not only as the product of their criminal past, is key.

Something to think about……

This court decision may be only the beginning.  Reassessing the ban to exclude any ex-offenders from working with other vulnerable members of our society, mainly children and the mentally or physically disabled, may get notice.

Once again, it is in your best interest for You and Your Small Business to be Proactive.

Let me know what you think!  Leave a comment below.  Thanks!

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