What Employers Must Know About Hiring Employees With a Criminal History

Hiring a convicted felon isn’t what most businesses set out to do. In fact, most companies would prefer to hire people who will be soon nominated for sainthood, which leaves candidates with a criminal record out. Employers need to keep in mind, though, that many saints have checkered pasts and so may some of your best employees. Here’s what you need to know about hiring employees with a criminal history.

What Is Ban the Box?

Most job applications have a box that applicants check off to say whether or not they have any felony or misdemeanor convictions. But, 25 states and several cities have passed “ban-the-box” laws. Some additional states have “fair chance” legislation, which means that you can’t ask the applicant about convictions on a job application.

Individual state laws vary, so double check your state or other governmental jurisdiction’s laws before you ask a person to fill out an application. As a general rule, ban the box means that you can’t ask about any convictions until you get to the job offer stage of the selection process.

The Purpose of Ban-the-Box Laws

What’s the purpose behind these laws? The state has a vested interest in getting people with a criminal history working—having a job reduces the chance of recidivism. If you want to lower crime, you want people working instead of returning to their bad ways.

But the other reason for ban-the-box laws is to stop discrimination against black men. However, research has shown that this may not be working as desired—since employers can’t ask about criminal history, they are less likely to interview black and Hispanic candidates.

Researchers looked at low-skilled men between the ages of 25 to 34 and determined that “in ban-the-box areas…   employers are less likely to interview young, low-skilled black men because those groups are more likely to include ex-offenders. They instead focus on hiring groups made up of men they believe are less likely to have gone to prison.”

So, while the laws may help actual convicts, they can adversely affect low-skilled black men who have no criminal history.

When Can You Ask About a Person’s Criminal History?

In all states, you can ask about felony convictions before you actually hire an employee. The ban-the-box legislation just prevents you from asking about criminal history before you’re ready to make an offer. When you’re ready to make an offer you can do a background check which involves asking about any convictions.

Can You Reject an Applicant Because of a Criminal History?

The answer to this question is sometimes. Some convictions prevent you from having certain types of jobs altogether. For instance, if you run a daycare, you absolutely can and must reject convicted child sexual abusers. That’s an easy decision. In other areas, the decision is not so cut and dried.

Rejecting people based on their criminal history may violate the Civil Rights Act of 1964’s Title VII. The Equal Employment Opportunity Commission says that there are two key points when considering how to treat convicted job candidates. They say:

  1. Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).
  2. Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:
    • They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
    • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Ban-the-box legislation is an attempt to comply with the first part of this (although, it’s not working), but what about the second part? First, you can’t assume an arrest means a person committed a crime that would disqualify the person from the job.

If your candidate has a conviction, you can consider that they committed the crime of which they were convicted. If there is simply an arrest, you can use that to start an inquiry into whether or not the person should be disqualified.

How Do You Determine Whether to Hire a Candidate With a Criminal History?

But, how do you determine if the convicted person is “likely to be a responsible, reliable, or safe employee”? That’s going to vary based on state laws,  but here are some general guidelines.

  • Treat people of different races/genders the same. If you go ahead and hire a white man with a drug conviction because it was “just a youthful indiscretion” and then reject a black man with a similar conviction you’re violating the law.
  • How long has it been since the conviction? If the job candidate has a conviction for shoplifting from six months ago, you can make a strong argument that this is not a trustworthy individual. If that conviction occurred 20 years ago, however, and no repeat convictions have occurred—not so much.
  • How does the conviction relate to the job? You can reject a person who embezzled from a previous employer as your company’s comptroller, but probably not for a job as a landscaper with no access to funds.
  • Did you give the candidate a chance to explain himself? If a candidate has a conviction that you say disqualifies him for the position, the EEOC requires you to give the person a chance to “demonstrate that the exclusion should not be applied due to his particular circumstances.” This means that you’ll have to sit down and listen to what the candidate has to say and perhaps collect some additional information.

Always Consult With Your Attorney About Hiring Employees With a Criminal History

If you wish to reject a job candidate based on a conviction, before you do so, please consult with your employment law attorney. Because state and even local laws can vary considerably, you can’t make generalized judgments on what you think is best for your business. You need to ensure that you have followed the law precisely and that you aren’t violating Title VII in any way.

Many companies skip consulting with their attorney because that discussion costs money. But, it’s considerably cheaper to pay for an initial consultation than to have to pay for the resulting lawsuit. Remember, even lawsuits that you win are incredibly expensive to litigate.

For jobs with state licensing, use the licensing procedures as your guidelines. If the licensing agency allows the person to have a license with that particular conviction, you should most likely (consult with your attorney) not consider rejecting the candidate because of that conviction either.

When trying to decide how you want to shape your policy regarding convicted felons, consider the true nature of your business. Does your business require actual saints or are normal humans enough?

Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a world-wide audience and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.­­

Why should you improve your employee onboarding program?

Employee onboarding is a very method used in talent acquisition.
If done right, employee onboarding process can easily become your secret weapon for hiring and retaining talent.

A successful employee onboarding program ensures that your best candidate actually shows up on their first day at the new job.

This is because a successful employee onboarding process starts at the moment your best candidate accepts your offer.
If you don’t engage you best candidates until their start date, they might accept a better offer or a counteroffer from their current employer.

It also helps to improve retention, engagement, satisfaction, and productivity of your new employees.

According to the Society For Human Resources Management (SHRM):

  • 69% of employees are more likely to stay with a company for three years if they experienced great onboarding.
  • Organizations with a standard onboarding process experience 50% greater new-hire productivity.
  • 54% of companies with onboarding programs reported higher employee engagement.

3 best employee onboarding tips

Here are the best 3 tips that will help get the most out of your onboarding program:

Tip #1: Plan and organize 

If you want to maximize the power of your onboarding process, you need to carefully structure it. To learn how, check out our step-by-step Guide on how to successfully onboard new employees.

Keep in mind that:

  1. A successful onboarding is a process
    A successful employee onboarding is not an event that takes place on your new employee’s first day at the office. It is a continuous process that starts at the moment your best candidate accepts your job offer.
  2. A successful onboarding is people oriented
    A successful employee onboarding is not focused on tasks, but on people.
    The human touch drives onboarding success.  The secret of great onboarding is the fact that it makes your new employees feel welcomed and integrated into your company culture from the day one!

Tip #2: Automate 

Automating your employee onboarding process will help you save time and your nerves. There are many different employee onboarding tools you can use to easily automate your onboarding process.

There are 3 main types of employee onboarding tools:

  1. Checklists: Checklists are the most simple and straightforward tool that can help you onboard new employees.
  2. Specialized tools: Specialized employee onboarding tools are tools created for the sole purpose of improving the employee onboarding process.
  3. Integrated tools: Integrated tools are comprehensive, all-in-one tools that offer solutions for your whole HR management process, including payroll, benefits, time and attendance, etc.

Tip#3: Be creative 

To make your new employees’ onboarding experience truly unique, you need to get creative! Luckily for you, we compiled the best and the most innovative employee onboarding ideas and examples from experts to inspire you!

Here are 3 simple, but creative employee onboarding ideas you can easily implement:

  1. Welcome GIF or video: Gather your team and create a welcome video for your new employee!
    If your employees shy away from a camera or you don’t have enough time on your hands, go with the quicker version – create a welcome GIF!
  2. Decorate your new employee’s desk: Decorate your new employee’s desk with some balloons, welcome sign and maybe even some cake! You can also pack your company swag (such as branded notebook, pens, T-shirt, water bottle, etc.) as a present!
  3. 100th-day party: Throwing a 100 day on the job party for your employees is a great opportunity to shower them with some attention and remind them how much you are happy to have them joined your company.
People Management Mistakes That Small Businesses Tend to Make

While there are fewer employees to contend with in a small business, people management is just as important as in larger businesses. Since small businesses may have smaller HR departments or may not have any HR department at all, the responsibility of managing the people often falls on a manager or entrepreneur whose expertise is in a different area. As a result, a few management mistakes commonly occur.

Hiring Too Fast

When a position opens up in a small business, it leaves a large void. It is often necessary to fill the position quickly in order to keep the business running smoothly. Unfortunately, many hiring managers in small companies cave in from the pressure and hire someone that may be less qualified just to fill the position.

Not Allocating Enough Resources toward Training

Training takes time and money; there is no avoiding it. Many small businesses make the grave error of failing to properly train employees. A failure to properly train can cause a company to lose customers, make an employee feel unprepared and bitter towards the company, and cost the company money.

Failing to Document Performance Issues

Performance and behavioral issues are a problem for any company. Failure to document performance issues can give employees silent approval for unacceptable behaviors, which can lead to further behavioral issues and foster discontent among faithful employees that achieve the standards. If an employee is fired for performance or behavioral issues and no documentation is made concerning the issues, the employee may also be able to collect unemployment or sue for wrongful termination.

Not Firing In a Way That Benefits the Company

Many small business owners and managers fire employees according to personal relationships, tenure, and other reasons that have nothing to do with company performance and the bottom line. If it is necessary to fire someone because the business cannot afford to keep all of the employees in position, it is important to review performance factors and make a logical decision. If an employee needs to be fired because of performance or behavior, it is important to put personal feelings aside and focus on meeting the needs of the business first.

Failing to Comply with Employment Laws

Certain employment laws apply to businesses with just one employee, while other laws apply to businesses with 12 or more. Others apply to businesses with more than 50 employees. It is critical for employers to study these requirements and take the necessary steps to comply with all applicable laws.

Small business owners must be aware of human resource laws regarding:

  • Discrimination
  • Family leave
  • Military leave
  • Minimum wage requirements
  • Overtime
  • Safety standards
  • Disability

Misclassifying Employees

Some small businesses classify employees as contractors to save on taxes, but this can be a critical error if employees do not fit the legal description of contractors. Different laws may also apply if an employee is classified as part-time instead of full-time. Small business owners must be careful to classify employees properly so that they do not incur penalties.

Top 10 Don’ts When You Fire an Employee

Firing an employee is stressful for all parties—not just for the employee losing a job. No matter how well you’ve communicated about performance problems with the employee, almost no one believes that they will actually get fired. With cause, too. The average employer waits too long to fire a non-performing employee much of the time.

So, employees convince themselves that they won’t get fired: they think that you like them; they think that you know that they are a nice person, or you recognize that they’ve been trying hard. In fact, you may believe and think all of these things. But, none of your feelings matter when the employee is not performing his job.

Firing an employee may take you awhile—usually much longer than the circumstances merit. Because you are kind, caring, and tend to give employees another chance. But, these are the top 10 things you do not want to do when you do decide to fire an employee.

Don’t Fire an Employee Unless You Are Meeting Face-to-Face

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Do not fire an employee using any electronic method—no emails, IMs, voicemails, or phone calls. Even a letter is inappropriate when you fire an employee.

When you fire an employee give them the courtesy that you would extend to any human being. They deserve a face-to-face meeting when you fire an employee. Nothing else works.

The fired employee will remember and your other employees who remain have even longer memories. And, no, during this time of social media dominance, don’t believe for a minute that the circumstances of the firing will remain secret.

You will have created a scenario in which your remaining employees are afraid to trust you. Or worse, they trust that you may harm them, too.

Don’t Fire an Employee Without Warning

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Nothing makes an employee angrier than feeling blindsided when fired. Unless an immediate, egregious act occurs, the employee should experience coaching and performance feedback over time. Before you fire an employee, try to determine what is causing the employee to fail.

If you decide the employee is able to improve her performance, provide whatever assistance is needed to encourage and support the employee. Document each step in the improvement process so that the employee has a record of what is happening at each step. The employer is also protecting its own interests in the event of a lawsuit over the termination.

If you are confident that the employee can improve, and the employee’s role allows, a performance improvement plan (PIP) may show the employee specific, measurable improvement requirements. (A PIP is difficult, if not impossible, with a manager or HR staff, once you have lost confidence in their performance.)

Do not, however, use a PIP unless you are confident that the employee can improve. The agonizing process of meeting weekly to chart no progress is horrible for the employee, the manager, and the HR rep, too.

The actual termination—while almost always somewhat of a surprise—should not come with no warning.

Don’t Fire an Employee Without a Witness

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Especially in the US, anyone can sue anybody, at any time, for any reason. In employment termination cases, the employee has to find a lawyer who believes he can win the case and thus, collect his fee. The best practice is to include a second employee in the meeting when you fire an employee.

This gives you an individual who hears and participates in the employment termination in addition to the manager. This person can also help pick up the slack if the hiring manager runs out of words or is unsure of what to say or do next.

This witness is often the Human Resources staff person. The HR person has more experience than the average manager, in firing employees, so can also help keep the discussion on track and moving to completion.

The HR person can also ensure that employees are treated fairly, equally, and with professionalism across departments and individual managers. This limits your liability when you fire an employee.

Don’t Supply Lengthy Rationale and Examples for Why You Are Firing the Employee

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If you have coached and documented an employee’s performance over time and provided frequent feedback, there is no point in rehashing your dissatisfaction when you fire the employee. It accomplishes nothing and is cruel.

Yet, every employee will ask you why. So, have an answer prepared that is honest and correctly summarizes the situation without detail or placing blame.

You want the employee to maintain her dignity during an employment termination. So, you might say, “We’ve already discussed your performance issues. We are terminating your employment because your performance does not meet the standards we expect from this position.

“We wish you well in your future endeavors and trust that you will locate a position that is a better fit for you. You have many talents and we are confident that you will locate a position that can take advantage of them.”

Or you can simply remind the employee that you have discussed issues with him or her over time, and leave it at that.

The more detailed you become, the less able you will be to use any of the information you discover following the employment termination in a subsequent lawsuit. And, as an employer, you will always find out additional information.

For example, think about a terminated HR staff person who had months of new employee paperwork in her drawer. The employees had not been enrolled in healthcare insurance.

In another example, a marketing employee had the entire bookkeeping for her bar which she operated in the evenings on her company-owned computer. (The employer was kind and gave her a copy of her bookkeeping which they didn’t need to do.)

Need to attract millennials? Offer student loan benefits!

If you want to attract and retain millennials, it’s all about the benefits. And no perks are more sought after among this group than student loan benefits.

Ten years ago, millennials flocked to employers offering free snacks and ping-pong tables, but as this demographic matures, they seek more meaningful benefits from their company with long-term results. Similarly, growing companies have a hyper-sensitive need to appeal to the millennial group because they will soon make up a clear majority of the workforce.

Focused on their financial futures

We talk to our client’s millennial staff all the time about their needs. My team also talks to our clients, most of which are millennials, every day about how important their financial future is to them.

What we’ve learned is that most millennials have lofty goals, and if a company can help them achieve those goals by supporting their financial future beyond just an income, they have a strong chance of attracting top-performing talent. Millennials also focus on values, so if a company can demonstrate how they support and reflect their employees’ values – financial and otherwise – that goes a long way.

Student loan debt is considered an epidemic in our country and is a major obstacle to the financial independence and goals that millennials seek.  Those with student loans are constantly looking for ways to contribute savings to their payments – from more practical strategies like refinancing or taking on a “side hustle,” to extremes like selling their eggs or participating in medical trials.

Enlightened companies are beginning to recognize how student loan repayment programs can benefit their employees by enabling financial independence, which naturally creates a more positive outlook on their professional and personal life. According to a recent study we conducted with LendEdu, we found that 58% of millennials would prefer student loan refinancing benefits from employers over additional vacation days – pretty powerful! This shows, plain and simple, how millennials are looking for benefits and employers that support their financial well-being.

Offering a student debt repayment benefit reinforces that employers care about the same things their employees do, establishing trust and demonstrating how the company and staff have the same values. It also helps to boost employee morale and satisfaction, and a satisfied workforce is one that’s likely more productive, committed to their team’s success and loyal to their company.

Employers as advocates

On the recruitment side, this benefit allows employers to attract top-performing millennials who seek employers that advocate for their financial health. Companies that are first to introduce this benefit are shaping their brand perception as one that’s invested not only in the financial health of their employees, but in doing good for people facing an extreme burden.

In a time where job switching has become more common – and where 50% of millennials carry student loan debt – student loan refinancing benefits can help encourage employees to stick around for the long-haul. This benefit establishes trust and demonstrates that employers care deeply about the financial future and overall well-being of their staff, which, for millennials, is far more appealing than most “work perks.”

 

 

30 employee handbook do’s and don’ts from the NLRB

To help employers craft handbooks that don’t violate the National Labor Relations Act, the National Labor Relations Board has issued a compilation of rules it has found to be illegal — and rewritten them to illustrate how they can comply with the law.

It was issued as a memorandum by NLRB General Counsel Richard F. Griffin, Jr. to “help employers to review their handbooks and other rules, and conform them, if necessary, to ensure they are lawful.”

Specifically, the memorandum points out employer policies found to violate and conform to Section 7 of the NLRA.

The main area of concern

Section 7 mandates that employees be allowed to participate in “concerted activity” to help improve the terms and conditions of their work.

The NLRB has made it abundantly clear recently that it’s on the lookout for rules that:

  • explicitly restrict protected concerted activity, and/or
  • could be construed to restrict protected Section 7 activity.

One thing the memorandum makes very clear: extremely subtle variations in language could be the difference between having a legal policy in the NLRB’s eyes and having one that’s viewed as violating the NLRA.

What to say, what not to say

Here are many of the dos and don’ts highlighted by the memorandum, separated by topic:

Rules regarding confidentiality

  • Illegal: “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses.’” The NLRB said, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact info, without regard for how employees obtain that info, is facially illegal.
  • Illegal: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].” The NLRB said a broad reference to “another’s” information, without clarification, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment.
  • Illegal: Prohibiting employees from “disclosing … details about the [Employer].” The NLRB said this is a broad restriction that failed to clarify that it doesn’t restrict Section 7 activity.
  • Legal: “No unauthorized disclosure of ‘business “secrets” or other confidential information.’”
  • Legal: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • Legal: “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

The NLRB said the last three rules above were legal because: “1) they do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term “confidential,” they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications.”

Rules regarding conduct toward the company and supervisors

  • Illegal: “Be respectful to the company, other employees, customers, partners, and competitors.”
  • Illegal: “Do ‘not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.’”
  • Illegal: “Be respectful of others and the Company.”
  • Illegal: “No defamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.’”

The NLRB said the rules above were unlawfully overbroad because: “employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.”

  • Illegal: “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • Illegal: “‘Chronic resistance to proper work-related orders or discipline, even though not overt insubordination’ will result in discipline.”

The NLRB said the rules above, while banning “insubordination,” also ban “conduct that does not rise to the level of insubordination, which reasonably would be understood as including protected concerted activity.”

  • Illegal: “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • Illegal: “It is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Illegal: “Do not make ‘statements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”‘”
  • Illegal: “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

The NLRB said the rules above “were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public.

  • Legal: “No ‘rudeness or unprofessional behavior toward a customer, or anyone in contact with’ the company.”
  • Legal: “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

The NLRB said the rules above are legal because they wouldn’t lead an employee to believe they restrict criticism of the company.

  • Legal: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.” The NLRB says employees would reasonably understand that this states the employer’s legitimate expectation that employees work together in an atmosphere of civility.
  • Legal: “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.” The NLRB said this rule is legal because “employees would reasonably interpret it to apply to employer investigations of workplace misconduct rather than investigations of unfair labor practices or preparations for arbitration.”
  • Legal: “‘Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in’ discipline.” The NLRB said: “Although a ban on being  disrespectful’ to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats, and assault. Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.”

Rules regarding conduct between employees

  • Illegal: “‘Don’t pick fights’ online.”
  • Illegal: “Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.’”
  • Illegal: “Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Illegal: “Do not send ‘unwanted, offensive, or inappropriate’ e-mails.”

The NLRB said the rules above were unlawfully overbroad because employees would reasonably construe them to restrict protected discussions with their co-workers.

  • Legal: “[No] ‘Making inappropriate gestures, including visual staring.’”
  • Legal: “Any logos or graphics worn by employees ‘must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.’”
  • Legal: “[No] ‘Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.’”
  • Legal: “No ‘harassment of employees, patients or facility visitors.’”
  • Legal: “No ‘use of racial slurs, derogatory comments, or insults.’”

The NLRB said the rules above were legal because: “when an employer’s professionalism rule simply requires employees to be respectful to customers or competitors, or directs employees not to engage in unprofessional conduct, and does not mention the company or its management, employees would not reasonably believe that such a rule prohibits Section 7-protected criticism of the company.

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