Changing Background Check Laws Present Gray Area for Senior Living

Criminal background checks are woven into the fabric of senior housing employment practices: They ensure caregivers are fit for their positions, and ultimately protect the vulnerable resident population. But changes in the regulatory landscape may require some operators to adjust their hiring procedures.

For most senior housing types, operators are required by federal and state laws to conduct background checks for employees who perform direct patient care. These requirements apply to licensed communities, such as assisted living, memory care, skilled nursing and these components of continuing care retirement communities (CCRCs).

However, a rising wave of new legislation may affect independent living operators, which don’t require licensing in most states.

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“There’s been a lot of attention raised by civil rights groups getting employers away from asking about criminal backgrounds — that may come into direct conflict with senior housing providers’ hiring and retention policies,” says Tomek Koszylko, co-author of a recent special issue brief published by the American Seniors Housing Association (ASHA) and law firm Hanson Bridgett LLP.

Banning the box

Cities nationwide have passed “ban-the-box” laws that prohibit private employers from asking about an applicant’s criminal history in the initial stages of a job application. Because independent living is largely unlicensed and is not subject to federal laws requiring they conduct background checks, operators in some cities may find themselves having to abide by new restrictions.

Eleven states have enacted statewide ban-the-box legislation and more than 60 county and city jurisdictions have enacted similar laws at the local level. But most of these laws only apply to public employers and agencies. However, Buffalo and Rochester, N.Y., San Francisco, Calif., Seattle, Wash., Newark, N.J., and Philadelphia, Penn., are among the cities whose new legislation affects private employers, including senior housing operators, though even in these cases, the laws will not apply to licensed senior housing, such as assisted living.

In these cities, unlicensed independent living providers may need to change their employee application processes to comply with local legislation.

Instead of disqualifying someone with a criminal background after seeing it on the candidate’s application, operators might be prohibited from asking on an initial job application whether the prospect has a criminal history or not. In this case, if the applicant were otherwise qualified for the position, the laws may require the operator to first interview the candidate before accessing his or her criminal history. After the interview, the provider could then choose to disqualify the candidate based on relevant prior convictions.

“They may, in these [locations], find themselves under the thumb of these ‘ban-the-box’ laws and may have to add a second layer of review,” says Koszylko, of the application process. “But depending on the local laws, they may find themselves in an exception for businesses that serve vulnerable adults or other exceptions based on business necessity or public safety.”

Exemption from the rules

Though these laws vary widely from city to city, in many cases, independent living providers can find loopholes in the ban-the-box laws and prove they are exempt from them, as long as their background checks are job-related and there is legitimate need to exclude candidates with certain criminal history, such as elder abuse, fraud, theft or violent crimes. This exemption is known as a “business necessity” — in other words, the background check is necessary in order for the senior housing operator to protect its residents.

Criminal background checks satisfy the business necessity requirement when an employment position implicates public safety, or when an employee comes into contact with a vulnerable population, according to ASHA’s report.

So even though there is a wave of new rules dictating when in the application process an employer can ask about an applicant’s criminal history, in many cases, independent living operators can still prove that they are exempt from the laws, Koszylko says.

But if providers aren’t sure whether they fall under an exemption, they should seek clarification in writing from the state or local agency tasked with enforcing the law, says Alayna Waldrum, housing legislative representative at LeadingAge.

“We would recommend they seek legal assistance in developing the request in order to lay out the case for conducting background checks, and to make the best possible argument that it is carefully tailored to address concerns about resident safety and exploitation,” she says.

In general, independent living operators should limit the scope of their background checks to employees whose positions are considered sensitive, to exclude job candidates only for those types of crimes that would be relevant to the position and to consider the length of time since the candidate was convicted or served out the sentence for the crime in question, the brief states.

The gray area

Despite loopholes in the ban-the-box laws, senior housing providers should still be cognizant of the changes, as they may come into play when hiring contractors or outside agencies, experts say.

“When serving vulnerable populations, housing providers should be particularly attentive to any screening requirements that contractors working in [or] on the property may use for their hiring processes,” Waldrum says.

ASHA’s special issue brief follows guidance issued in March by the Equal Employment Opportunity Commission, regarding the proper use of background checks for current or prospective employees.

The guidance stated that it is not illegal for an employer to ask about an applicant’s background or to require a background check, but that the employer must comply with federal anti-discrimination laws, specifically Title VII of the Civil Rights Act of 1964.

Ban-the-box laws go a step further by dictating when in the application process it’s acceptable to ask about criminal history.

“You would find yourself in a very different situation if you didn’t background-check enough,” Koszylko says. “For the safety of the residents, there needs to be some level of background checks.”

Written by Emily Study

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