[HISTORY: Adopted by the City Council of the City of Atlantic City as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-9-2014 by Ord. No. 34-2014]
The City will conduct background checks on applicants. Applicants will be considered for employment opportunities on the merits of their skills and experience related to the position sought, and will not be denied employment solely or in part because of a prior conviction, unless the City determines that the conviction is job related. The background check will be conducted after the City has selected the best candidate for the position. If a background check yields information that is of concern to the City, the applicant will be provided an individualized assessment. The applicant will be given an opportunity to review the background check findings and present information regarding inaccuracy, mitigating circumstances, and rehabilitation.
As used in this article, the following terms shall have the meanings indicated:
- ADVERSE ACTION
- To refuse to hire, to not promote, to discharge a person, or to revoke an applicant's conditional offer of employment.
- A person who has filed an application for examination to a City job position.
- The City, department, agency, or office thereof.
The City will comply with state and federal law requiring background checks for certain positions and dictating certain disqualifying offenses and other existing law. An employer's use of an individual's arrest and conviction record in making employment decisions to automatically disqualify applicants may violate the prohibition against employment discrimination under federal law, Title VII of the Civil Rights Act of 1964.
The U.S. Equal Employment Opportunity Commission (EEOC) guidance recommends employers adopt the following best practices to avoid violating federal law. The employer should only consider job-related convictions, taking into account length of time since the conviction. In addition, the guidelines recommend that the employer perform an individualized assessment on the applicant, which would allow the applicant to demonstrate that the conviction history is inaccurate or provide evidence of mitigating circumstances or of rehabilitation.
The federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., governs the use of commercially prepared background reports. The subject of the background report must authorize the report. These reports should not include information on arrests older than seven years, and the applicant should be provided a copy of the report prior to any adverse action.
Identifying position as requiring background check. A Human Resources Analyst performs an initial review of the position to determine if the position is of such sensitivity that a background check is warranted or if a background check is required by law.
Posting job announcements. All job announcements and position descriptions shall contain the following statement if the position requires a background check, unless otherwise required by law: "This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate."
Job applications. Job applications shall not inquire into an applicant's conviction history.
Examination process. A list of eligible applicants will be created based on examination results, and the list will be sent to the hiring department. The hiring department will conduct interview(s) and select an individual from the list of eligible applicants.
Notice of rights. Once an individual has been selected, the hiring department shall notify Human Resources (HR), and HR shall send the individual a conditional offer letter, notice of rights under this policy, and a request for authorization to conduct a background check, if so required.
Limitation to conviction history. HR shall not use or access the following criminal records in relation to a background check: records of arrest not followed by a valid conviction, sealed, dismissed, or expunged convictions, misdemeanor convictions where no jail sentence can be imposed, and infractions.
Conviction history inquiry. If required, HR shall consider job-related convictions only. If a statute explicitly requires that certain convictions are automatic bars to employment, then those convictions shall be considered as well. Otherwise, no person shall be disqualified from employment, solely or in part because of a prior conviction, unless it is a job-related conviction. In determining if a conviction is job related, HR shall consider:
Whether the conviction is directly related to the duties and responsibilities of that employment position;
Whether the position offers the opportunity for the same or a similar offense to occur;
Whether circumstances leading to the conduct for which the person was convicted will recur in the position; and
The length of time since the offense occurred.
Pre-adverse action notice. If an applicant's conviction history contains information that may be the basis for an adverse action, HR shall:
Identify the conviction item(s) that are the basis for the potential adverse action;
Provide a copy of the conviction history report, if any;
Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide; and
Provide the applicant with an individualized assessment as described below.
Individualized assessment. A job-related conviction shall not be the basis for an adverse action if the applicant can show evidence of mitigation or rehabilitation and present fitness to perform the duties of the position sought. The applicant shall have 10 business days, after issuance of the notice, to respond with any information rebutting the basis for the adverse action, including challenging the accuracy of the information and submitting mitigation or rehabilitation evidence. HR shall hold the position open until it makes the final employment decision based on an individualized assessment of the information submitted by the applicant and the factors recommended by the EEOC.
Evidence of mitigation or rehabilitation. Evidence of mitigation or rehabilitation may be established by:
Evidence showing that at least one year has elapsed since release from any correctional institution without subsequent conviction of a crime; and evidence showing compliance with terms and conditions of probation or parole; or
Any other evidence of mitigation or rehabilitation and present fitness provided, including, but not limited to, letters of reference.
Final notice. If HR makes an adverse decision, the applicant shall be informed of the final decision, the appeal process, and that the applicant may be eligible for other City positions.
Appeal. Applicants may appeal the final decision to the Director of Human Resources.
Confidentiality. Any information pertaining to an applicant's background check obtained in conjunction with the hiring process shall remain confidential, and shall not be used, distributed, or disseminated by the City or any of its agencies, or its vendors, to any other entity, except as required by law.
The Human Resources Department shall maintain a record of the number of positions requiring background checks and, for those positions, shall maintain a record of the number of applicants:
The Department shall also regularly conduct a confidential, anonymous survey of employees in positions in which background checks are not conducted to determine the number of people with records hired.
Audit. The Human Resources Department shall conduct a quarterly audit and submit a report to the City Council which will review the City's hiring practices in an effort to ensure that people with records are not unreasonably denied employment with the City.