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Reviewing Policy

Question: How urgent is this? How soon do you recommend that we review and revise our criminal history policies?

Answer: Time is of the essence, said Williams, who believes that anyone with a broad generalized policy is at high risk for challenge. Certainly the larger your company, the more chance there will be that you could be challenged, so she believes it's a very smart practice for everyone - all companies - to take another look at their criminal screening policy to determine if it needs to be revised, and if so, to immediately go about taking the steps to do so.


Question: What happens if a community denies housing based on a screening report that contains inaccurate information about an applicant's criminal history?

Answer: When the denial takes place, Richer explained that it's the community's responsibility as a user of consumer reports under the FCRA to provide the applicant with an "adverse action" notice, which would direct him to the screening company that provided the information to the housing provider.

The applicant has the right to a free disclosure of the contents of the report and to dispute any inaccurate and non-updated information found within the report. The screening company then has 30 days to verify that the information is accurate and belongs to that consumer. If the information can't be verified, it would be removed from the report. The applicant would get a corrected copy of that report and could also request that a corrected version of the report be sent to the original inquirer (the community).

This is one reason for having a very active appeal process, Williams said. If you get the wrong person's record, which does happen occasionally, the appeals process allows the person to come forward and show that that is not his record and it was a mistake, and allow you to undo the rejection immediately.

Look-Back Period

Question: How far back should we go in considering criminal convictions? When should the look-back period start-on the date of conviction or the date the applicants left incarceration?

Answer: Depending on the status of the record (conviction, pending case, etc.), the look-back period date may vary, Richer said. The look-back period could start on the date of release from incarceration, but remember: That information may not be readily available in some states, so it can be challenging to base your look-back period on that particular date. You may want to craft a policy that includes multiple types of dates based on the information available from the criminal source, Richer said.

Every company needs to decide this for itself, Williams said, but you could include the date of conviction, and also the date of release-with the same or lower look-back period. For example, you could set the look-back period to be seven years from conviction of the crime, and three or four years from release from incarceration (or whatever number of years you choose). In states where you may have difficulty getting that data, Williams said that it will be something to work out with your screening company.

Question: How do we determine what is considered a reasonable look-back period?

Answer: To determine a reasonable look-back period for your community, Richer recommends consulting with your legal counsel, your resident screening provider, and perhaps peer communities. Some of the recommended best practices include longer look-back periods for more serious crimes (that would include incarceration) and shorter look-back periods for less serious crimes or misdemeanors. Several AmRent customers have selected up to 20-year look-back periods for very serious crimes, seven to 10 years for serious crimes, and three to five years for less serious crimes.

Question: How would you handle convictions for serious crimes, such as murder or rape, when the recidivism rate is so low, but the danger posed of that low percentage of offenders is extremely high?

Answer: Many housing providers are considering the safety, reputational, and financial risk when making these decisions, Richer said. Although the recidivism rates for murder and rape may be lower than other crimes (according to some statistics), you'll have to determine what legitimate, substantial, and non-discriminatory interest would be achieved with a policy that restricts housing based on the reputational risk of admitting a person with one of these crimes in his past.

It may be prudent to apply a reasonable look-back period that includes incarceration time, Richer suggested. In addition, your individualized assessment process might consider the amount of time since release from incarceration, evidence of criminal events since release, housing and employment history, as well as rehabilitation programs. This particular category has been challenging for many communities to reconcile.

Pending Charges

Question: What should we do if the criminal record shows there are pending charges against an applicant?

Answer: Pending charges are different from records of arrest, but Richer and Williams warned that they still should be handled carefully with respect to the new HUD policy guidance. One option would be to treat applicants with pending charges somewhat similar to the way you would treat them if they had a conviction on those charges. Serious consideration should be given to the risk associated with the criminal offense and the impact to the community. It can get tricky when the charges are not severe, so you should consult with your legal counsel.

FAQ: Rehabilitation Program

Question: If an individual has completed a rehabilitation program, should we allow residency?

Answer: Your company policy might consider rehabilitation program completion as one factor in your individualized assessment process, Richer explained. The completion of a rehabilitation program alone might not be sufficient to mitigate all the risk associated with a particular crime. You might also consider how long ago the crime occurred and if the applicant has committed other related or non-related crimes since the original crime or after the rehabilitation program.

Conditional Approval

Question: Can a criminal background check be approved with conditions-for example, accepting the application, but with a condition that the applicant can't be arrested for that offense during the calendar year?

Answer: Accepting an applicant with conditions is one of the best practices suggested under the HUD policy guidance, Richer said. When considering whether to do so, you'll need to consider how you'll monitor future criminal activity and complete the eviction process once the applicant becomes a resident (all at a cost to you). Richer said you should consult with your legal counsel whether the benefit of this condition outweighs the administrative burden and costs of managing the enforcement.

Postponing Access to Criminal Records

Question: What is the reasoning behind the recommendation to run criminal reports after other screening has been completed?

Answer: The thought process is if you are not "viewing" criminal records until other qualifying criteria have been met (such as credit, rental history, employment verifications, and the like), then you will reduce the number of times that you are disqualifying applicants for housing based on previous criminal histories, Richer said. You are also likely to reduce the frequency of individualized assessments, which are time-consuming, costly, and require judgmental review of the applicant's circumstances surrounding the criminal record.

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