[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:
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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."
C.
Job applications. Job applications shall not inquire into an applicant's
conviction history.
D.
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.
E.
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.
F.
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.
G.
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:
(1)
Whether the conviction is directly related to the duties and responsibilities
of that employment position;
(2)
Whether the position offers the opportunity for the same or a similar
offense to occur;
(3)
Whether circumstances leading to the conduct for which the person
was convicted will recur in the position; and
(4)
The length of time since the offense occurred.
H.
Pre-adverse action notice. If an applicant's conviction history contains
information that may be the basis for an adverse action, HR shall:
(1)
Identify the conviction item(s) that are the basis for the potential
adverse action;
(2)
Provide a copy of the conviction history report, if any;
(3)
Provide examples of mitigation or rehabilitation evidence that the
applicant may voluntarily provide; and
(4)
Provide the applicant with an individualized assessment as described
below.
I.
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.
J.
Evidence of mitigation or rehabilitation. Evidence of mitigation
or rehabilitation may be established by:
(1)
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
(2)
Any other evidence of mitigation or rehabilitation and present fitness
provided, including, but not limited to, letters of reference.
K.
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.
L.
Appeal. Applicants may appeal the final decision to the Director
of Human Resources.
M.
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.
N.
Data collection.
(1)
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:
(3)
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.
O.
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.[1]
[1]
Editor's Note: Former Art. II, Child Abuse and Neglect Check,
adopted 11-13-2020 by Ord. No. 50-2020, which immediately followed, was
repealed 6-16-2021 by Ord. No. 24-2021]
