Criminal Records Check in Employment for Small Business

Seal of the United States Equal Employment Opp...

In April 2012, the Equal Employment Opportunity Commission (EEOC) expanded its guidance, “Enforcement Guidance on the Consideration of Arrest & Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” and addressed in detail an employer’s use of criminal records checks information in employment decisions. While the EEOC always has cautioned employers not to use such records to preclude employment across the board, the expanded guidance provides insight on how to use criminal records check information in employment decisions without running afoul of Title VII.

The guidance, which applies to employers with 15 or more employees, warns employers that the use of criminal records checks information in hiring decisions may lead to discrimination claims. These claims will be based, most likely, in racial or national origin discrimination because statistics show that African Americans and Hispanics are arrested and convicted at a rate disproportionate to their numbers in society. Consequently, if an employer uses criminal records check information as a screening tool, eliminating all applicants with any criminal record, the employer will run afoul, more likely than not, of the guidance.

The guidance does not preclude the use of criminal records checks information in employment decisions. Rather, it requires that the employer use such information in a neutral manner so as not to screen out automatically applicants who are in “protected classes,” particularly race and national origin.

The guidance suggests a three pronged test as well as “best practices” to guide the employer in its use of criminal records checks. Under the test, the employer should ask three questions: what is the nature and gravity of the criminal offense; how long has it been since the applicant committed the offense; and, what is the relationship between the offense committed and the job’s requirements. In addition, the employer should determine if there are mitigating circumstances regarding the criminal records check information by giving the applicant an opportunity to explain and demonstrate why the information should not disqualify the applicant from the job. If there is a relationship between the position and the criminal record and a substantial amount of time has not passed between the offense and the application, then it may be appropriate to deny the applicant the position.

The guidance’s “best practices” recommend that employers eliminate policies that preclude employment based on any criminal record without context, train hiring managers about Title VII and how to apply it legally to a criminal records check policy, and develop a policy that matches the job requirements and the offenses that potentially disqualify an applicant from a job. The “best practices”also recommend that employers set a time limit for consideration of a criminal history and allow applicants to respond to it. Finally, the “best practices” recommend a written policy with its justifications, preservation of the research used to develop the policy, and appropriate confidentiality rules.

While using the three pronged test and the “best practices” in developing a criminal records check policy does not guarantee a claim free future, it enables the employer to provide a reasoned defense to discrimination claims filed against it. As always, before instituting any policy which has legal implications, it is advisable to seek the advice of legal counsel.

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia   22314
(703) 519-3733 (Telephone)

TELL ME NOT…

The Worst Hard Time by Timothy EganThe economy is going up – except when it is going down. Are we in for another recession, a depression, or a boom? The political campaigns are in the negative, all attack mode and making many people more fearful.

But today came and you need to make a living, build your business, and grow.

Maybe you are fearful. You are swamped with so many ‘to do’ things. The things you know you need to get done. Those you keep meaning to do. And all the plans and goals you say you must define. If you could find the top of your desk or the bottom of your email inbox, you’d be delighted – for a day, maybe.

If customers are too demanding, you feel pressured by those expectations and wonder if you can sustain the demands and grow. If you do not have too many demanding customers, you feel pressured by the need to find more.

Right now a lot of folks wonder whether they can sustain their business dreams and goals. Many entrepreneurs and managers are hunkering down instead of inspiring and leading people.

And I am remembering a Wadsworth poem:
“ Tell me not, in mournful numbers
Life is but a dreary dream…”
It is from “A Psalm of Life” and very 19th century in tone but real too – you can find it here: http://bartelby.org/102/55.html

Do you know that there are studies which show that connecting to others, even electronically, raises levels of a brain chemical involved in feeling good? Just think, a nice cold lemonade with a business colleague could make both of you feel better! And if you used it to do some brainstorming about your business issues, so much the better. A series of notes to your connections to learn more about potential opportunity — and you are feeling better able to cope.

Organize. Whether you end the day by planning for the next or start the new day with 10 minutes to organize and plan, a small effort each day becomes a big goal achieved. Give yourself 10 – 15 minutes each day to move forward on one small step to a larger goal and see for yourself.

Need help? Bet you know someone else who does also and you can become peer coaches. Or you can hire a coach. Or an expert in a field you need to learn.  Or talk to the Alexandria SBDC.  Or undertake some online research to create your next step.

Buy someone you admire lunch and get a little mentoring on how they did whatever you admire them for. Or if you need a good swift kick, go read The Worst Hard Time by Timothy Egan.  And I thought I had had some bad times to overcome!

You can create the future you want. And help the economy we all are a part of too. Are you in?

Alexandria SBDC Announces Human Resources Counseling for Small Business!

Patra Frame - Strategies for Human ResourcesAlexandria SBDC now offers individualized human resources counseling for small business…at no cost!

The Alexandria SBDC would like to announce a new program that will begin this month. Many of our small business clients fear HR issues and mistakes, but do not fully appreciate how the right people and processes will help them succeed. Patricia Frame, founder of Strategies for Human Resources (www.SHRinsight.com), Human Capital Management Consultant, Speaker, and Author, will provide one-on-one Human Resources Counseling for Small Business through the Alexandria Small Business Development Center. These sessions will be available at no charge to City of Alexandria businesses on the fourth Wednesday of each month (except December). Sessions will last for 50 minutes at the SBDC offices, and there will be three timeslots available each month. The first series of sessions will take place on Wednesday, September 26th, at 9, 10 and 11 a.m.

HR consulting sessions will be scheduled on a first-come, first-serve basis. To take advantage of this opportunity, send Gloria Flanagan an email message (gflanagan [at] alexandriasbdc.org <– remove spaces and change [at] to the @ symbol for the actual email address), with “HR Consulting” in the subject line.

You must also include the following information in the body of your e-mail:

  • Name, company name and contact information
  • Current number of employees in your organization
  • 2 – 3 critical business issues facing your organization
  • Issues that you would like to address in the meeting

Participants who are not current Alexandria SBDC clients will also need to complete the “Request for Counseling” Form.

Once we have received your e-mail we will contact you to schedule your session.

Biographical Background Information for Patricia Frame is provided below:
Patricia A. Frame is an experienced management consultant, HR executive, speaker, and author on human capital issues. She is known for her ability to address organizational goals and issues effectively and to create human resource management practices which support these goals without excessive administrivia. Patricia has advised executives and boards on a wide range of human capital and strategic planning issues. She has expertise in organization development, talent management, process restructuring, compensation, and training. She has worked with technology-based companies, government contractors, non-profits, associations, and retail operations. She advises small to mid-size organizations on ways to succeed and to help their employees thrive. Ms. Frame has given seminars for SBDC in recent years on the basic processes of HR management.

Bring in your business concerns and let her help you find a path forward to enhance your success.

Start Smart: Creating Great Performance

Small Business Human Resources - Great Employee Performance ManagementThe smaller your organization, the more important each person in it becomes. Think a moment – what would happen if you just lost $5,000 or $10,000 tomorrow? Yet hiring and retaining the wrong person can easily cost you that in lost opportunities or time or energy quite quickly.

So, how do you ensure your staff are terrific assets?

Start with your hiring process. New companies often hire family and friends because they are ‘comfortable’ with such people. Small organizations often think of people as an expense to be minimized, rather than an investment in your success and future.

Look carefully at how you design a new job and hire for it. You do not need an elaborate job description or expensive search process. You do need to be very clear about the work that needs to be done and the experience, attitude, and knowledge actually needed to do it well. Where will you find such a person? How will you know? What will you pay for?

Many of us lose valuable employee productivity from the start, through bad assumptions and poor planning. Your new hire checklist – mental or written – probably focuses on things like keys and payroll and forms.

What you need is a new hire checklist that ensures you:

1. Reinforce why you hired the person: say what you saw in their experience, attitude, and knowledge which demonstrated their value to your organization.

2. Explain the basics of ‘how we work here’. What are your organization’s common habits and practices that a new person needs to know?

3. Define your vision and goals and relate to the person’s specific job.

4. Set the standards for behavior and high performance at the beginning. Have the materials and equipment each needs and someone to train them on any company specific processes. Be clear in explaining what the person needs to know to successfully do the job. State your expectations in terms of daily activities or weekly accomplishments. What goals do you want achieved in the first 3 months? 6 months? What standards does the person need to meet? Do you expect all calls/email to be answered within one business day? All customers to be greeted when they enter your store? Be clear about all those details.

5. Talk about how you like to work. If you expect employees to bring up problems immediately, say so. If you want them to try to solve the problem first or bring you a proposed solution, tell them. Do you do a weekly staff meeting or scheduled individual meetings? Do you prefer written or oral reports? Are you calm and deliberative? Creative and outgoing? Tell new people.

Not there with current employees?

You can change. Define your own processes and expectations and clearly communicate them to existing staff. Then, as you grow, do so with each new hire too.

Now, of course, the reason this does not happen all the time is that many of us expect others to know and understand our goals and standards. Magically, without our having to do the work ourselves to clearly define and articulate them! So your own performance is the first person’s to sort out.

But the value of doing so is an immediate boost to productivity and performance in your organization. Your staff will know how to succeed and how to help the organization succeed.

Patricia Frame is an experienced management consultant, speaker and author on human capital issues. Ms. Frame founded Strategies for Human Resources in 1993 as a consulting firm specializing in meeting the human resources needs of small to mid-size organizations. 

Culture – What is it Good for?

Whether consciously planned or not, your organization has a culture.

In several HR seminars I’ve done for Alexandria’s SBDC, a common comment was surprise at the importance of culture to their organization’s future. Many attendees said they simply had not thought about their culture or its impact on hiring or productivity.

What creates the culture in an organization?

  • First is the vision since many people join (or buy from) because of what they understand the business or organization to be about.
  • Next is what we say about our organization – our story, our values.
  • Third is how we implement our vision and our values.

While other issues of culture may be included, these three give you the basics of the culture in your organization. How are you actively manifesting them?

When I do organizational assessments, I often find a difference between what founders/CxOs say they want as a culture and what their practices actually are. For example, you may have been in a ‘do as I say, not as I do’ work arena – and that is one critical strike against a positive, productive culture.

Aligning your culture, your policies, and your actual practices is critical for success. Sometimes, the culture originally developed is not what you now need. Or worse, the culture you thought you had created is not what you actually have.

As you prepare for future success, take a look at your existing culture.

  • Is it what your organization needs?
  • What you want?
  • How is the desired culture expressed in basic practices and policies?
  • Will the existing culture support your strategic and business plans?
  • If so, great! If not, what are you going to do? How? When?

One of my clients was an ethical, terrific founder who knew his business and had great ideas. He was quite successful at first. But over time, his dislike of and avoidance of conflict led to a culture where all disagreement was avoided. People were retained when they should have been fired, and critical decisions were delayed or left unresolved. And it cost him his business. While extreme, this is not an unusual failure – it happens too often in organizations where the culture has become a hindrance to success. 

You can create a culture that helps your organization succeed.   But it takes attention and thought to do so.  And to maintain its best aspects, you need to keep your culture in mind  as needs change, as you grow, as your environment changes — all those may require tweaks to your culture.

Should I Hire an Employee?

The decision on whether to hire a person is especially critical whether you are just beginning to grow or need specialists you are not sure you can afford.How do you decide whether or not to hire employees?ASK YOURSELF:  1. Is this work which must be done over a long term?

If the work is on-going and critical to your organization’s success, consider hiring or leasing an employee.  If it is not, consider other options.

Work can be done by independent contractors who specialize in the area, by temporary staffing services, by consultants for a project or a specific need, by an interim executive, by a paid intern, or by sub-contracting.  Would one of these options work better for you?

Too often, small organizations add a non-core position because of short-term or part-time needs and then realize that work has expanded to fill the time, not because of actual necessity.  So a real 10-20 hour a week need has become a full-time employee.

2. Can I afford to hire a regular employee?

Hiring employees who support your revenue or mission growth is smart.  But once you hire, you cannot skip pay periods, tax or legal obligations.  Costs
include the person’s pay and also:
* mandated benefits including: OASDI (‘Social security’ and Medicare), unemployment insurance, workers compensation insurance
* costs for space and equipment for the employee
* pay processing and accounts establishment costs
* legal compliance and risk management costs

Check out your state’s small business services or your local economic development agency – these provide detailed guidance on any local laws you need to comply with.

OK, I want an Employee

Think: What type of work and level do I really need?

Classically, small employers want folks to wear multiple hats.  But the work combinations must make sense and be right for your organization’s needs.

There may be a terrific sales person who is happy to be doing administrative work half of the time but it is unlikely!   Two part-timers or outsourcing one part makes far more sense where the work needs are very different.

The other classic is to want a senior-level person to show you are growing and to get some strategic advice, but want that person to also do basic level work.  A CTO is not going to do programming.  And hiring a CxO of any sort usually results in hiring several more layers as well.  So, you had a Manager of Accounting and one accounting clerk before and now have a CFO and 5 staff, but no more revenues.

Not sure how to structure a position?

Take a good look at similar job ads from larger organizations: what set of skills and requirements do they combine?  Many put fairly detailed descriptions on their website employment section.  Check to see if your trade association offers sample job descriptions you could tailor to your needs.  Ask other business owners.  Ask your vendors in that area for ideas.

Before you add a position, make a clear list of exactly what business necessity creates the need, all specific responsibilities that need to be fulfilled, and what increased revenue will result.

OK I’ll outsource    I don’t need an employee, but the work needs to be done.

Make a list of potential options.  As with an employee, structure the work clearly.  Ask your advisors and network for recommendations.  Current vendors are a great resource; e.g., CPAs often know other services providers, such as IT support, and can recommend people to meet your needs.

Grow Smart!

Hiring people who can contribute to your organization’s growth and success is an important step.  A little thought and effort first to ensure you only add costs you can afford and you spend your money on the best possible solution for your needs will repay you handsomely.  Unfortunately, too often the opposite is true – and having a staff becomes a nightmare of added work, added costs, and negative results.

Ask questions, seek advice, consider alternatives – do all the things that you would do before offering any new product or service to your customers or clients.  You will grow much more successfully with less hassle if you do!

Make Every Day Earth Day

Make Every Day Earth Day at the Office
“Reduce, reuse, recycle.” Has this become the mantra of the first two decades of the 21st century? To a dedicated few perhaps, but so far most behavior change has focused on recycling , rather than reducing or reusing the products we use in everyday life.
To see if I am making a correct assumption here, ask yourself if your habits have changed significantly in the last few years regarding conservation, energy efficiency, and a lifestyle with less physical waste. For example, do you turn off the lights more frequently, use water saving toilets and energy-efficient light bulbs and (Energy Star) appliances, and turn off computers and other “idle” media when they are not in use?
At work, have you switched to lights that turn themselves off when there is lack of movement in the space (as at the Alexandria SBDC offices)? Have you stopped the bottled water habit and switched to water filtered at the faucet instead? Do you use ceramic coffee cups and plates and individual reusable water bottles instead of the use once and throw away variety? Instead of answering “paper” or “plastic” at the supermarket, many shoppers, although still usually a minority, now bring their own multi-use non-woven or other grocery shopping bags. They are sometimes rewarded with five cents off at checkout. Some municipalities such as San Francisco have gone as far as banning stores from providing plastic bags and business seems to be thriving in spite of this minor inconvenience.
Surprisingly, changing behaviors can be good not only for the environment, but also for a business’ bottom line. There are plenty of ways to make a small environmental contribution and save the business unnecessary expenditure at the same time. Builders can construct energy-efficient buildings that are attractive to prospective tenants, and they do not have to become LEED-certified to do this. You, as a business owner, can reduce and reuse, as well as recycle, within your office or workspace and set an example for employees, customers and the community. If you develop a reputation as an environmentally-friendly business, that might help to attract new customers or solidify relationships with your existing client base.

Three Simple Steps

  1. Paper – certainly something that can be reduced, reused AND recycled. While not easy to go paperless, reducing paper output, and using both sides of the paper are easy steps in the right direction. It will also decrease the ink cartridge bill, which can be significant in itself.
  2. Mail – cutting down on snail mail will have an immediate impact. Fax, email and social media have reduced the need for using the post office, UPS or FedEx.
  3. Lunch room – providing a refrigerator and microwave oven for employees will be popular with staff, and will encourage them to bring food and beverages for lunch. Provide a way to filter water from the faucet to discourage the throwaway plastic water bottle habit and encourage staff to bring their own reusable water bottles. Plastic plates, utensils and cups are not necessities. Paper napkins may be harder to relinquish.
If you have the budget and opportunity to do some branding and be environmentally-friendly at the same time, there is an increasing choice of products made from recycled materials (e.g. pens or t-shirts made from plastic water bottles), reusable bags, including lunch bags, water bottles, and many other everyday items used in a typical workspace.
So, although there is only one official Earth Day, and it falls on Sunday, April 22, 2012, every day can be an opportunity to make a difference in our own consumption patterns. If we remember to “reduce, reuse and recycle” we can continue to make an individual and collective impact on conserving our scarce resources and the environment we are fortunate to live and work in, here in Northern Virginia.
The author, Judith Harley, owns and operates Oxford Communications, in Alexandria, Virginia. Oxford Communications provides branding for businesses, associations and non-profits through the use of custom-imprinted promotional items, corporate apparel and business gifts. Oxford Communications is known for providing creative environmentally-friendly options for clients.

Celebrate Earth Day by Recycling Your E-Waste!(ourtakeongreen.com)

 

Photo courtesy of NASA Goddard Photo and Video

Hiring the Right Professional

Wow! I'll Buy One! cartoon by Clay Butler

 

Delegation is a skill that when done properly, saves you time, creates a circle of support, and enables you to achieve much more than you could on your own.

Hiring the wrong person wastes huge amounts of money invested in people not capable of delivering what you need them to do. It also steals massive quantities of time you did not budget. Women have particular difficulty delegating–as they often don’t want to burden others who may have full plates, are afraid to ask for what they need, and are hesitant to be too probing when interviewing.

My client, Emily, came to me with a history of poor delegation experiences. Whether hiring a handyman, housekeeper, assistant, or architect, she always ended up shocked and disappointed at the work they produced, feeling like all the dollars (and hours) she and her late husband had invested went swooshing down the drain.

The latest: she’d hired a fitness coach to put together an exercise and nutrition plan for her. Her assumption was she would get a complete program – a month’s worth of workouts and a month’s worth of menus. She expected instruction on the workouts and recipes to go along with the variety of menus. After paying a small fortune, you can imagine her shock, when all the fitness coach sent was an exercise book describing different types of exercises she could do, shopping guidelines, a handful of meal suggestions, and links to online websites with recipes. In analyzing the history of their communication, we discovered where Emily had gone wrong–she’d been very unclear about what she’d hired the fitness coach to do. I suggested Emily reach back out to the man, explain the mistake, and ask what it would take to get what she wanted.

Here’s what she learned:

It took me a while to work up the nerve to call Bill. I had a really hard time getting in touch with him, too. I finally heard from him after a few phone calls. Seems he has a different approach to fitness coaching – I was looking for a structured, detailed plan. I would show up, he would tell me what to do, and I would head home and follow his recipes. Bill’s approach is based on giving me the tools to make improvements. He doesn’t coach his clients through the workouts, and he doesn’t have the “bank” of recipes in his database I’d assumed he did. He believes in cooking based on ingredients I enjoy eating the most. Ah, well. Looks like she was never the right match.

Based on my experience in looking for the right assistant, I provided Emily with an organized process for improving her batting average with future hiring of the right professional.

  • Define your expectations. Sit down with pen and paper and ask yourself the following: How will I measure success for the money I am investing in this person? What do I expect they will bring to the project or task that I can’t do myself? List the time, skills, and talent you imagine this person needs to do this job (i.e. creativity, flexibility, speed, integrity, etc.), and devise questions that will probe at their skills in each area. Being crystal clear on what you want makes it easier to recognize the right resource when you find it.
  • Interview based on historic performance, not future vision. When interviewing, we often ask questions in hypothetical terms–e.g. “How WOULD you do something…”which only produces answers based on what the candidate thinks you want to hear. History (or behavior) based interviewing stems from the belief that the greatest indicator of future success is past behavior. Try asking for examples from past job experiences, using questions that begin- “Tell me about a time when…” or “Give me an example of a moment that…” You’ll be amazed at what you hear. By listening to each candidate’s detailed stories of what they have ACTUALLY done, you are in a FAR BETTER position to evaluate if they are a good match for your needs, and have the experience to deliver on your goals.
  • Comparison Shop (at least three candidates). Emily had hired this fitness coach without doing her homework. It was on a whim, after hearing about the experience of a friend of hers who had recently moved to a retirement community in Florida. Emily was so enamored with the experience her friend had received, and she assumed all fitness coaches operated in a similar fashion. Always interview at least three candidates, so you have options to compare and contrast. Shopping allows you to pick the person who is the best match for your specific needs, and often helps you learn what is reasonable to expect.

Taking the time to be clear and methodical when hiring, may take longer up front, but it could surely help save you beaucoup dollars (and precious time) in the end.