Review Your Criminal Screening Criteria

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If you haven't done so already, pull out your resident selection criteria and take a close look at the evaluation standards for applicants with criminal records. Depending on what it says, you may need to make some changes right away. Then review it in detail - and get help from your attorney, resident screening company, and other advisors to ensure that it complies with HUD guidelines. Richer offered some key best practices:

Remove any ban based on arrests. The first thing to do is to check whether your policy includes any ban based on arrest records, Richer said. HUD's guidance clearly states that records of arrest should not be used to deny housing or terminate a lease. There may be circumstances where a criminal event has occurred and the arrest record might justify further research into the behavior, but an arrest alone can't be used to deny housing eligibility.

Include statement of the purpose served by criminal screening. When documenting your resident selection policies, include a statement that the policies serve to reduce risk to your communities and residents. As you review your policies and make adjustments, be prepared to show that your policies are set to improve your communities' and residents' safety, and that the policy is substantial, legitimate, and has no discriminatory interest.

Remove blanket/generalized felony bans. Check whether your policy includes any "blanket" exclusions for all convictions or all felonies. Those policies are likely to be challenged by disparate impact claims.

Determine most serious and violent crimes. Replace any generalized felony or conviction bans with only the most serious or violent crimes that accomplish your goal of reducing risk. These may include both felony and misdemeanor crimes as long as consideration has been given to the nature of the crime.

Include look-back periods and exit from incarceration. Keep recidivism rates in mind when setting look-back periods. Look-back periods may be based on the conviction date or the date of exit from incarceration.

Address applicants with multiple unrelated violent and nonviolent felony convictions. A pattern of criminal activity may present a risk to your community (especially if it's recent), so you may want to consider the number of criminal events within a period of time. The events may be unrelated, but a pattern of crimes may show a propensity toward risky behaviors over a short period of time or within a recent period of time.

Remember the FCRA. Add language that informs applicants that when criminal records are found, they may have an opportunity to appeal and provide circumstances surrounding the criminal events.

As you review your policies and make adjustments, keep in the back of your mind the goal you have-to demonstrate that your policies are set to improve your community's and resident's safety, and that the policy is substantial, legitimate, and has no discriminatory interests, Richer says. You will also want to consider if there is any less discriminatory practice that could achieve the same goal.

And don't forget, your policies may come under scrutiny from testers, she warned. Take the time to train your staff properly, and for them to properly communicate your policy regarding criminal records. You want to be sure your policy isn'tbeing communicated in an abbreviated fashion, and that your staffers aren'tdiscouraging applicants with criminal histories from applying to your communities.

Appeals of Rejections/Individualized Assessments

In addition to developing a complex policy that includes a graduated tier of look-back periods that relate to the seriousness of the crimes, Williams said that another way to defend your criminal history policy is to include in the policy a description of an applicant's right to appeal a rejection.

Each rejection should inform the applicant that she has a right to obtain a copy of the criminal record on which the rejection is based. If you use a third-party screening company, these records should be provided by your screening company.

Decide who in your company will conduct these appeals, Williams suggested. It often proves useful to assign appeals to the same person or persons so they can develop some expertise in how to conduct these hearings, including the factors that prove to be the strongest to indicate a rejection should be maintained or reversed.

Williams often uses the term "individualized assessment" when reviewing whether an applicant is able to explain mitigating circumstances that may change the original determination to reject an application due to a criminal record. There are a number of factors that can be considered during the appeal, including:

  • The seriousness of the criminal offense;
  • The relationship between the criminal offense and the safety and security of residents, staff, or property;
  • The length of time since the offense, with particular weight being given to significant periods of good behavior;
  • The age of the household member at the time of the offense;
  • The number and nature of any other criminal convictions; and
  • Evidence of rehabilitation.

If you are holding an apartment, this process obviously needs to be completed as soon as possible, so it's a good idea to put time limits on all aspects of an appeal, Williams said. In conventional housing, if it is going to take more than a week or two for the hearing and decision to occur, Williams said it makes sense to move forward with leasing the apartment to another applicant. In federally funded housing, the result may be different due to HUD's appeal requirements.

There has not been a defined time frame by HUD, so Richer said it will depend on your housing availability and the length of the waiting list. In some cases, it may make sense to hold the apartment for a few days. If the time period expires, the apartment becomes available to another qualified applicant. You could set a reasonable time frame for the applicant to provide the necessary information for your appeal and provide him with the "next available" apartment in the event that the initial time frame expired.

During the presentation, Williams was asked whether this process was taking the housing industry back to a subjective review of the applicant. Those concerns were legitimate, she said. The federal government is asking housing providers to consider whether their criminal history policies reflect a genuine concern for safety or are merely based on generalized stereotypes of the dangers posed by ex-offenders.

While the country works to address difficult problems with the criminal justice system, Williams said that housing providers are tasked to treat applicants with criminal records somewhat similarly to residents who request reasonable accommodations. As you know, these are decided on a case-by-case basis, and companies are developing employees with expertise to make these decisions. Due to the seriousness of this issue, Williams suggested that housing providers devote a similar commitment to administering criminal history screening policies and give applicants an opportunity to explain their individual situations.

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