Chris Cooley (00:03.167)
I want to thank you for joining us today. I think we’ve got a great topic. We’re going to talk about what employers need to know when they run a background check and that new hire or applicant actually has a conviction. So what do they need to do to make sure that they stay compliant? And so today we’ve got Bill Simmons with Littler Mendelson. One of the great things about Bill, he is he’s actually our attorney for MyHRScreens HR screens and does a great job for us, but he focuses in this background check.

industry for both consumer reporting agencies such as we are, but also for employers. And so it’s a niche and it’s a great area and there’s not a ton of people that do that or a ton of law firms that handle that. And so it’s great that he can be here and kind of bring that focused expertise. So I appreciate you joining us today.

William J Simmons (00:56.494)
Thanks so much, Chris. Really, really appreciate being here to talk about one of my favorite topics.

Chris Cooley (01:01.373)
Yeah, yeah. No, and so what is, you know, we know that there’s the Fair Chance Act and there’s a lot of things out there, both, you know, now it’s at the federal, the state and municipal level. So, you know, can you give us kind of an overview of what that is and what employees need to think about?

William J Simmons (01:17.634)
Yeah, yeah. So I like to use the term Fair Chance Act, like you just said, to describe this subset of laws. Some employers still refer to ban the box laws, which still exists. But just to give you an example of why I make that distinction, for a long time, the trend was ban the box laws. And what that term refers to, as I know you’re aware, but just for the audience, is that employment applications all the time, some still do, used to have a box where you had to check and say, check here if you’ve ever had a criminal

And so the initial trend to help people who had had criminal records before previously was to get that box off the application. And hence you had the Ban the Box movement. What we’ve seen, though, is now that trend evolve into what we now call the Fair Chance Act movement, where, OK, great, you’re not asking that question at the application phase about criminal records anymore. But now we also want you to.

have a very robust procedure for how you look at applicants who have criminal records a lot more substantively. And that’s what the Fair Chance Act movement is. it’s one of these trends in employment law where it hasn’t fizzled out. So sometimes you see these trends in employment law, know, five jurisdictions pass something really quickly, and then it looks like it’s going to spread across the nation, and then nobody passes any more laws like that. But Fair Chance Act laws continue to be a trend nationwide.

Chris Cooley (02:28.853)
Yes.

William J Simmons (02:43.01)
get into a little bit about why I think that may be, but this is definitely a big trend and it’s really important for employers to focus on. There’s a lot of litigation, a lot of charges of discrimination based on these laws, and they have private rights of action just like any other sort of employment discrimination law.

Chris Cooley (02:59.467)
Yeah, and one thing I would like to talk about just quickly that we get a lot of questions about is when do you run that background check? Because we talk with employer after employer that, you know, want to run those background checks at the application stage before the offer. And we know that there are some regulations around that. what is the right time or right that they need to run those background checks?

William J Simmons (03:29.646)
Yeah, the answer is somewhat simple. If you want to have a 50 state compliant procedure or a procedure that’s compliant in a lot of areas. So if you’re an employer who operates in a good amount of states or cities or across the country, pretty much it’s post offer. That’s the only way you can have a uniform procedure. If you operate in just one state, then the answer could be potentially different for you.

And that would depend on whether in that particular state or if you just have city based operations, that particular city restricts that ban the box law that we talked about where you can’t ask at a certain phase. Typically, there’s three stages of where the laws break down. There’s some states and cities where there’s absolutely no regulations on this. Technically, you could still have a question on the application, whether that’s a good idea or not is a separate story. But you could still have it and you could still run a background check early on.

Some jurisdictions say you can only run a check and ask questions after an interview, like after somebody passes that first interview and they’re initially qualified. But the real trend in most of the jurisdictions now say, no, you have to wait all the way until you found that applicant that you’re making the

Chris Cooley (04:39.755)
And I think that makes sense. I know that’s what, if people ask us, what we generally say is wait till after the offer. And a lot of that’s because now there are so many remote employees. mean, you used to we would talk to, we would talk to a 20 man group, 20 man employer, and they’re all in one state. Whereas now that same 20 man employer may be in 15 states. And so just from a consistency perspective, that

William J Simmons (04:50.381)
Yeah.

William J Simmons (05:00.385)
Yeah.

William J Simmons (05:05.336)
Yes.

Chris Cooley (05:08.927)
Yeah, that’s always been our suggestion is just wait until after the offer has been provided and then run your background check that that generally, that’s the safest way.

William J Simmons (05:20.76)
For sure. it’s, you know, hey, it’s worse for your background screening business. Hey, you’re cutting down your volume. But you’re right that it’s far easier in my mind in a lot of these areas where there’s so much legal complexity. The ability to have one procedure as best as you can really helps you avoid a lot of missteps. The more you try to vary it to push to the most aggressive the law allows in each various little jurisdiction.

Chris Cooley (05:24.927)
Let’s start taking pictures.

William J Simmons (05:48.792)
to your point, you just really wind yourself up in a knot. And it can be really difficult.

Chris Cooley (05:53.583)
Yeah. Yeah, that I agree with that. To me, I was told early on in my career, simple is generally better. And so the more you can standardize it and have that consistency, the better. Just makes life simpler. And so, OK, so we’ve run the background check. If it comes back clear, it’s not much to do. If it comes back with a conviction, what are kind of those steps that these employers need to think about?

William J Simmons (06:07.33)
Yes.

William J Simmons (06:24.366)
So the trend with these Fair Chance Act laws, and by the way, I just want to say this too. This all started basically with the US Equal Employment Opportunity Commission, which is the federal agency that’s charged with enforcing discrimination laws across the country. In 2012, it issued guidance, as I know you’re aware, Chris, on employer use of arresting criminal records in employment. And that started the process of…

the idea of having to do some sort of individualized analysis of criminal records. And the idea behind the thrust of that EEOC guidance was that if you have too strict a background check rules, for instance, it was common at the time to say, you know, nobody with a felony ever can have a job here, that you may disproportionately impact African -American and Hispanic applicants. So that’s the origin story of these Fair Chance Act laws, but

the current statutes that are being passed get away from that because that was informal guidance. It depended on actually having a statistical impact on certain groups. The Fair Chance Act laws, once they’re enacted, protect everybody. It doesn’t matter their demographics. It doesn’t matter if actually there’s statistically significant impact on the practice. It just says you have to look at every background check individually and look at different factors related to those background check results. So when you get a background check,

result back that has a criminal record, the very first step of the analysis under these acts and under the EEOC guidance is to say, okay, we’re not judging this person as a bad person because they have a criminal record. What we do is we have to judge the criminal record as it relates to the actual job requirements. So is this criminal record related to the job at all? That’s your first question. If you look at it and you can’t really draw a connection between the criminal record and job,

In today’s day and age, you really just have to pass that applicant. It’s not worth wringing your hands over. It’s not worth worrying about, you but I’m going to have somebody with a criminal record working in my workplace. It’s just not worth it at this point. So that’s your very first question.

Chris Cooley (08:34.12)
And I think that makes sense because if you know, it’s a

you know, if they are working in a different area, maybe they were doing money laundering and now it’s more of a physical outdoor, they don’t have access to assets, you know, maybe there’s something there. And goodness knows with the workforce that we have now, as far as the unemployment rates, lot of times it’s hard to find people. And so I know one thing too that we need to look at from an employer perspective is when did it occur?

So somebody just did something stupid back when they were 19 years old. Now, if we get into violence and those things, that’s different, right? But, you know, I guess those things need to be considered as well.

William J Simmons (09:18.914)
Yeah, it’s a good point. So once you determine that a criminal record is actually related in some way to the job or job duties or safety, then you’re right. The next question is, well, how long ago is it? Because what the EEOC and these Fair Chance Act laws are looking for is the underlying assumption is that in some fundamental sense, either the criminal justice system itself or through the passage of time eventually works to rehabilitate people.

That’s the fundamental animating assumption behind the laws. And so the idea is, once the conviction is related to the job, when was it? And more importantly, it’s not just the time period, but what has the person been doing since? So I’ve had some crazy situations where if you just look at a criminal record, you might think, OK, this is job related. It’s recent enough. We’re just going to deny employment. We don’t need to do anything else. We don’t really have to look at this for.

And I talk to the employer and I say, okay, well, I got it. Totally get the reasoning. But what have they been doing since? And sometimes you find out that the position that they’ve been in actually objectively seems far more risky than the position they’re about to occupy. So maybe, for instance, they’re about to be hired as a bus driver. And the idea is yes, but you know, they’re going to be dealing with the public. They have this assault record from six years ago. We’re concerned.

Okay, let’s look at their job history. Well, the last three years they’ve been working at a daycare.

Chris Cooley (10:54.409)
Yeah.

William J Simmons (10:55.148)
Now again, nobody can force you to hire anybody at this point, but you at least want to know, especially with these Fair Chance Act laws that tell you directly to look at this sort of thing, what you’re walking into if you still decide that you’re not going to hire the daycare worker to drive the public bus out of the idea that they’re still too risky from the conviction six years ago. You might still be right. You might have a good reason, but it’s important to actually be able to articulate.

Chris Cooley (11:13.482)
Right.

William J Simmons (11:23.81)
that you looked at that and here’s why you still think the person’s a risk versus just saying, well, I looked at the criminal background check for a few minutes, looked at it quickly and just decided that nobody with this sort of offense will ever work here.

Chris Cooley (11:38.171)
So how do they need to document that? Is that something that they need to write, put in the file? What’s the best way to do that for them? Because obviously if this pops up, if they get a lawsuit in the mail nine months later, they’re not gonna remember or the person that made that decision may not be there anymore. And so what’s that of process they would need to go through there?

William J Simmons (11:47.223)
Yeah.

William J Simmons (11:56.916)
Yeah.

William J Simmons (12:03.404)
Yeah. Well, so part of the answer is governed by the law and part of its HR practice. So in terms of governed by the law, there are a few jurisdictions, Los Angeles City, Illinois, New York City, and then Los Angeles County has a ordinance going into effect in just a couple of weeks here in September that require you to actually document the assessment and provide it to the candidate even during this

pre adverse action process where you walk through the background check with the applicant and give them a chance to respond. So in those jurisdictions, there’s not really a choice. You have to document the factors. In fact, New York City even has a form itself that they provide and say, this is the form that you should use. The same thing for Los Angeles City. They provided a form. Illinois is more open ended. So that said, those are only a handful of jurisdictions versus all the way across the country.

So that’s where the HR practice that you mentioned comes in. And I was laughing a little bit because I have to these conversations with employers. And it’s always a little delicate because I don’t want to say like, well, all the team members on this call, some of you may not be here in six months. And so we need to document for that reason. But you’re right. mean, there’s employee turnover. There’s also, depending upon the size of the company, some folks who review the background checks may go through high volumes. And so then to come back and have to say, well, what were you thinking?

Chris Cooley (13:14.845)
Right. Right.

William J Simmons (13:29.826)
when you reviewed Bill Simmons’ background check versus Chris Cooley’s could be very difficult. my overall personality as a lawyer is that I think documentation is better. And sometimes the push back that I get is, well, what if there’s something bad in the documentation? What if somebody said something they weren’t supposed to say? What if they made a mistake? My mind as a lawyer who represents companies and focuses on that is I’d rather just know if there was a mistake.

I’d rather know right away when I get the case somebody made a mistake or guess what, Chris, you considered a criminal offense that you shouldn’t have in this jurisdiction. Then we just deal with it versus if you don’t know and you’re hoping for the best. then in litigation a year later, the person’s deposed. Well, what were you thinking? And then it comes out that they had the wrong thought in their mind or made a mistake. That’s worse because now you’ve wasted a bunch of time. It’s always easier to say, hey, guess what? Administrative agency or guess what?

Chris Cooley (14:00.565)
Yeah.

William J Simmons (14:29.326)
plaintiff’s lawyer, there’s a mistake here. So -and made a mistake, it was against our policy, we’ve got good policies, let me show you those, but this person made a mistake, so we’ll get rid of this case. So I always favor documentation for all those reasons. The other reason I favor documentation though, by the way, is that the Fair Chance Act laws are one thing, and they’re definitely encouraging the employment of people with criminal records.

And that’s a laudable goal. And the cities and counties and states have a good reason for that. They want to get people not on state resources and with jobs and rehabilitated. But the truth is that the overwhelming majority of those laws also do not protect you for hiring somebody with a criminal record. And sometimes these decisions are not so easy. And so sometimes the documentation is also equally important when you decide

to hire somebody with a criminal record after you’ve gone through this back and forth process and it was a hard decision and they submitted mitigating information and you’ve decided to give them a chance, that you also show that you were reasonable in walking through that process. So that way, if that person, you know, God forbid, says it does something and hurt somebody or whatever at work, that you’re also able to say the same way.

Look, we are reasonable. followed the local law. went through the multi -factor analysis. We decided that this person was likely rehabilitated. We could not have possibly predicted that this bad thing would happen. So I think for that reason too, documentation can be important, just to show you’re reasonable.

Chris Cooley (16:06.399)
Yeah, no, I agree with that. And as an HR guy and a former, you know, accountant that I’m all about that, right? One thing too, I guess it’s very important. Like we do a lot of multi -location companies. And so what happens there is a lot of times it’s decentralized. So the each location will run their own background check.

William J Simmons (16:11.896)
Yeah.

Chris Cooley (16:30.731)
And then eventually they may have to make that decision. Maybe they run it up a tree, maybe they don’t. So there’s a lot of risk there. And so I know one thing that we suggest to our multi locations, those that are decentralized like that, is we can systemically route background checks. So if it’s clear, it runs back to that manager of that location, that point, hire them and go. If it’s a…

William J Simmons (16:54.787)
Yes.

Chris Cooley (16:59.773)
If it’s one with a conviction, it can go to a different party that they define, and then they can internally make that decision. Now they can’t say what’s on the report or not. What they can do is based upon our policy, our policy being the employer, they can say we will hire or not. So now what happens is you have your HR professional team making that decision versus your location managers.

And so I guess that’s a very important part is who’s actually making those decisions.

William J Simmons (17:29.153)
E .F.

William J Simmons (17:33.686)
Right. And I’ve definitely had a lot of clients with a decentralized approach and then also a lot that have gone more centralized over time. Typically, they tend to go centralized because some issues happen. Like you’re saying, you know, they realize that the site was having an issue with this. That can also be good reason to have good documentation procedures, too, because if you’re just in the position that you just absolutely cannot centralize this process, at least if you have the same form with the same factor.

that somebody’s got to write down and make sure they consider, it’s a lot easier than just worrying about that local manager X has this view towards people with criminal background checks and manager Y has this other view. get, hey, no, you’ve got to go through this step by step. We want to see your work. It’s like my kids in school with math, right? Like show your work. But we do recommend if you can to have more centralized procedures and, you know, a more focused

team reviewing the results that can also bounce things off each other because they’re all constantly working on this area and learn through the process of doing these because these are very difficult analyses and you learn a lot more on the job and the more that you do them and the more that you talk it through with other people. And so for that reason too, it’s really good to be centralized in my view if you can sustain it.

The other thing that I do see missed when you’re talking about, you know, sites versus centralization is that I don’t think enough employers train the folks who will be on the ground regardless as to how to talk to candidates and managers about the background screening process. So even if you take the actual review out of their hands, the truth is they’re still going to be the one who is the face of the company to those folks.

Chris Cooley (19:14.003)
Yeah.

Chris Cooley (19:26.635)
Right.

William J Simmons (19:27.562)
And even if it’s just a quick, like, do and don’t guide or a quick little flyer that you make sure that is in the possession of those folks to know what to say, what not to say around background checks or when, to your point, when do you escalate something up the tree? When is there an issue on this can be really helpful. So, for instance, I’ve had situations where even though the folks on the ground aren’t reviewing the background checks,

a candidate will self -disclose some criminal record to that person, the recruiter or the hiring manager or whatever. And one of two things will happen. Either the person will say, that’s no big deal. I’m sure we don’t care about that here. And then it turns out, yes, actually, we do care about that criminal offense. Or we’ll say, no, I mean, our policy is we never hire anybody with that sort of offense. So I think we should probably just end this here.

Chris Cooley (19:59.893)
Yeah.

Chris Cooley (20:10.569)
Yeah. Yeah. Yep.

William J Simmons (20:23.852)
And again, it’s like, no, we don’t have a uniform policy. We watched Chris’s podcast. We know we have to do individualized assessments. But now this person has said something that can be attributed to the company. And that’s actually contrary to what the view is of the company. So just having those quick things of, if background checks come up, here are some key bullet points of what to say, what not to say, when to escalate.

Chris Cooley (20:26.901)
Thank you. Yeah.

Chris Cooley (20:48.415)
Yeah, I think that’s a great idea. to your point, and the other thing is it does need to be written. Because a lot of times at these, well, even if they’re not multi -location, but a lot of times we all know there’s a lot of turnover. And so having those guides that they can take them through that process is invaluable. And that was another question I wanted to ask you as part of this. What about self -reporting questions?

What liability there, because we run into clients that will want to do that. They’ll ask those questions. And I know there’s some man in the box, obviously. But even as part of the background check process, after they’ve already extended the offer, they wanted them to do self -report. mean, what are your thoughts on that?

William J Simmons (21:40.568)
So once again, part of its law, part of its HR best practice, really unique requirement coming out of, just to use an example, the new Los Angeles County Fair Chance Act ordinance. It’s going to go into effect in September. First ordinance in the country that I’m aware of that actually says you can’t ask a criminal record question if you’re going to run a background check until after the background check completes and after you give the results to the candidate.

Chris Cooley (21:43.508)
Yeah.

Chris Cooley (21:51.975)
Cough

Chris Cooley (21:59.712)
Mm -hmm.

Chris Cooley (22:08.565)
Okay.

William J Simmons (22:08.696)
So you can kind of read between the lines there about what the goal is, right? The candidate already knows what’s back on the background check before they have to self -disclose anything. But, so that’s interesting. It’s really, that’s a unique law though, but it’s something to keep an eye on where there may now be some more attack on criminal records self -disclosures. was also, so stepping away from the pure legal requirements, kind of a middle ground here is that I was speaking with on a panel,

Chris Cooley (22:15.327)
Right.

William J Simmons (22:38.018)
I don’t know, about a year or so ago with one of the lead lawyers who represents people with criminal records and sue companies for allegedly discriminating against them. And he was very honed in on the criminal records self -disclosure and trying to find theories to sue employers with that about on the theory that if having too stringent of criminal record restrictions causes a disparate impact.

Chris Cooley (22:47.989)
Mm

William J Simmons (23:07.266)
His theory was that therefore also asking the question has a disparate impact because even if you’re relying on the falsity of answers to the questions, you can only have a false answer if you had a criminal record in the first place. Now, I think that’s really strained, but I think it’s meaningful when you’re trying to your procedures for how you want to do things to just understand that some of the major advocates

for people who have criminal records really don’t like the question practice and they’re going to continue to try to come up with theories. That said, in the country overall, it is lawful to ask that question at least as of the time of the offer. And for some employers, it can make sense to do that depending upon how long it’s taking for background checks to come back and the jurisdictions.

So you know better than me even that there’s certain jurisdictions that just decide to go haywire and decide they’re not going to give background check companies information anymore, or they’re not going to give identifiers, or they’re going to cut their staff. so delays can happen through no fault of the Consumer Reporting Agency with public record sources. And sometimes then I have employers come to me and say, well, we’ve got these delays in a certain…

County, we’re hearing it’s going to take a couple of weeks now to get all this cleared up. We really have people who need to start. What can we do? And in that instance, it can sometimes be helpful to have a criminal record disclosure. So at least you can say, hey, we tried something. We tried something that we could do to see if this person was safe before they started work. But to your point about what kind of concerns come along with that, you do have to make sure that it’s not just a generic question like, hey, anything we have to worry about on the background check.

Chris Cooley (24:37.728)
Right.

William J Simmons (25:00.46)
because jurisdictions also have limits on what sorts of criminal records you can ask about or not or use or not during employment. So you can’t just say, our questionnaire practice is going to be asking people if there’s anything we should be concerned about that might come out on the background check. It’s got to be a very formalized process with the appropriate caveats.

Chris Cooley (25:07.306)
Yeah.

Chris Cooley (25:20.851)
Yeah. And I know we’ve always had concern because from the employer is that they may say something that legally could not come back on a background check. It may be outside of the limits. And then what does that does that leave the employer at risk? Because now they have information that technically from a background check they would not know because it’s not allowed to be reported. And then they act upon that information. So that’s always been a concern, you know, a concern of ours.

William J Simmons (25:33.187)
Yes.

William J Simmons (25:51.33)
Yeah, you got to be really careful if you have something on a questionnaire that did not come back on a background check that you definitely understand that in that jurisdiction, you’re allowed to inquire about and use it because it may very well be like you pointed out that it can’t be used in that jurisdiction. So again, just the fact that somebody self disclosed does not mean that it’s OK to rely upon it. The other practical concern I have.

with employers using the criminal record question that I always vet with the employer before they start doing this is, do you actually have somebody there who is going to review the results on the self -disclosure before you proceed? Because it’s one thing to have a questionnaire. It’s another thing to have a questionnaire and not read it. Because that’s really setting the expectation up for the employee that, OK, I self -disclose this. I guess it’s fine because I moved forward in the process.

And there’s definitely been some unfortunate situations I’ve dealt with where a person self -disclosed gets hired. Six months later, a manager finds the form or HR finds the form and says, hey, wait a second, we can’t employ somebody with such and such on a criminal record. And that’s a really bad situation because the person’s thinking.

I disclose this, why is this a problem now? Plus I’ve been doing a good job. It’s just an unwinnable situation. So if you are going to have a questionnaire, you’ve got to actually make sure that you’re using it, you’re looking at it. And then by the way, these same Fair Chance Act laws that we’re talking about that require the individualized assessment and process often apply just as equally to self -disclosed information as it does a background check.

Chris Cooley (27:10.357)
That’s right.

William J Simmons (27:32.352)
And so you’ve got to know that too. You can’t just say, well, this person self -discloses. So this is great. It wasn’t on a background check. That means we can just immediately say, thanks for disclosing this. You’re not getting hired. Nope. You still may have this whole individualized assessment process to do.

Chris Cooley (27:47.947)
Yeah, that’s always been our concern is what action do they take upon those questions. And then also to your point, do they read them? Because we’ve had clients that have these questions and either it’s more of a yes, no question, if yes, then describe, and they just don’t answer the question.

William J Simmons (28:09.858)
Mm -hmm. So you have a yes, but a blank, and nobody follows up. Yeah.

Chris Cooley (28:13.029)
Yeah, things like that. because there’s just to your point earlier, there’s no training. There’s, you know, they’re just trying to get a body in. And so yeah, we’ve always had concerns on those. And I think the other thing that that happens a lot of times is employers when it comes to this point may think their background check company does all this for them and to make sure that it’s right. Where we’re really we, we can’t do that. And so

I think it’s up to them, it’s up to that employer to make these calls and decisions because obviously we can’t make hiring decisions.

William J Simmons (28:50.466)
Yeah, that goes for both the criminal record questionnaire, you know, the background check company can’t deal with that. But definitely this whole trend of Fair Chance Act laws is directly to fly in the face of the idea that an employer can just hire a background check company and entirely outsource the process. And I would say at least once a week, I have a conversation with an employer and they say something along the lines of, well, yeah, I don’t have to worry about that. The background check company handles everything dealing with the background checks.

have to raise a big stop sign and say, look, we’re talking about Fair Chance Act here. The background check company can’t be handling this for you. There’s no way that the background check company is not filling out the New York City Fair Chance Act form automatically for you about what your concern is about the background check and what rehabilitating information the person submitted to you to discuss with you about it.

And so it’s really something that the very intent of the law, and this is really important to underscore, the very intent of the Fair Chance Act laws are to make it so that you have to do manual work and cannot just outsource, can’t just make automatic decisions. That’s the entire intent of these laws. And so it’s really important that employers have to keep their eyes on news involving the Fair Chance Act. This is not something where you can say, well, yeah, we’ve got a vendor for this. We don’t have to worry about that new Fair Chance Act that

was passed, the vendor can’t do the assessment. And the other thing I wanted to mention, Chris, is the other disconnect I see quite frequently is, you know, with these fair chance acts, a lot of them say something to the effect of you’ve got to have the chance for the applicant to submit rehabilitating or mitigating information. Basically, yes, my record is mine. It is accurate. But let me tell you more to the story, whether it’s story about what I’ve done since.

or story about what happened, what have you, that is also information that typically does not go to the background screening company. As you know, the background screening company handles disputes. And disputes are, my background check is inaccurate, my background check is incomplete. This isn’t me, this is the wrong disposition, things like that. Since the background check company does not make decisions about employment, the proper place to direct those inquiries

William J Simmons (31:15.768)
for the most part, where somebody says, I’ve got something to add or I want to explain something, is back with the employer. And so we sometimes have situations where that’s not clearly understood so that the employer, as soon as the applicant says that they have anything to share about the background check, somebody at the employer is saying, if you’ve got something about the background check, you need to contact the background check company. Then they go to the background check company and say,

Chris Cooley (31:24.085)
Mm -hmm.

Chris Cooley (31:41.088)
Right.

William J Simmons (31:44.012)
Hey, I want to just share my story about this criminal offense. And the background check company says, OK, let me get this right. Are you saying the background check’s inaccurate? Are you saying it’s incomplete? No, no, this is me. This is totally accurate. OK, you don’t have any concerns about that? No, I just want to share my story. OK, you need to go to the employer for that. And now you have a situation where somebody is being ping -ponged back and forth because of just, again, a misunderstanding about the background company’s role versus the employer’s role in this process.

Chris Cooley (32:11.765)
Yeah. Now, I agree. And a lot of it’s just education, which is one reason we’re doing this podcast is to try to make sure that employers know that, that they know there is risk if they’re not hiring someone and what they need to do to make sure that they protect themselves. And so it’s just that education process. And so think you’re exactly right with that. And to be quite honest, a lot of those employers, because they don’t know, that’s the reason they’re sending them back to

that background check company. So that’s.

William J Simmons (32:43.173)
Yeah, I think the education is key. Just understanding these laws are out there. nothing necessarily forces you to hire somebody with a record that you think really concerns you or is really related to employment. But what I always say to employers a lot of times now is hindsight is 20 -20. So somebody can always challenge that you were unfair because you didn’t give somebody an opportunity or they can challenge that you made a bad decision and you hired somebody you shouldn’t have who

commits misconduct. So for that reason, the process and being able to say that you’re reasonable and that you thought things through and you tried hard and you made a difficult decision is the number one takeaway. And once you do that, that’s really the way to armor yourself against a lot of these laws. But you got to get there. You got to get to understand that this is really a requirement and it’s serious and train the folks that need to be trained to review the background checks to do that analysis.

Chris Cooley (33:37.205)
No, I think –

Chris Cooley (33:41.461)
Yeah, no, I think you’re exactly right. And I really appreciate you joining us today because I think it’s been really helpful. I think it’s a lot of information. Like I said, it’s a big educational process. We want to make sure our employers stay compliant and we appreciate it. And so if employers have questions about background checks or maybe these processes or what they need to do, how could they contact you?

William J Simmons (34:10.83)
So you can look me up on Littler’s website, littler .com. William J. Simmons, you see my name here. My phone number is always available. My office line is 267 -402 -3047. And my email is wsimmons at littler .com, L -I -T -T -L -E -R. Thank you so much, Chris. This has been great.

Chris Cooley (34:30.165)
Perfect. Well, now, again, I really appreciate it. And I appreciate everybody that’s listened and join us next time. And we’ll have some more great topics.

William J Simmons (34:40.494)
Thank you.

Chris Cooley (34:44.435)
All right, that’s it. Man, that was good. I appreciate you doing that. Like I said, I think it went well. I think that’s some…

William J Simmons (34:48.536)
Thank you.