What Employers Should Know About ‘Ban-the-Box’ Laws

ban-the-boxWould you ever hire a convicted criminal to work for your company? How about a person who has been adjudicated through the courts, or an individual who has served time? Each of these phrases essentially means the same thing – that a person has been found guilty of a crime in a court of law.

The problem is that how you word this question (as we just saw) – as well as what kind of crime a person has been convicted of, what kind of sentence they received, and when in the past they were convicted – can all have a dramatic impact on your perception of their potential hireability.

Protecting Employer Rights while Improving Opportunities for Candidates

Approximately one out of every twelve Americans has at some point been convicted of a crime, and nearly one out of three adult American males has been arrested at least once. In a nation as judicially active as ours, it’s not hard for a very wide range of people to run afoul of the law.

From ‘stupid mistakes’ in the teenage years to minor but legally significant convictions for traffic errors, the number of ways to become a convict in the U.S. is dramatic. And a recent study identified more than 38,000 punitive regulations and provisions that make it difficult for people to overcome the impact of carrying a criminal conviction in areas ranging from employment to housing, and from voting to obtaining credit.

Eliminating the Question about Criminal Convictions from Employment Applications

One standard practice on virtually every employment application for has been to include a checkbox or yes/no statement next to the sentence, “Have you ever been convicted of a crime?” And in response to this question, many employers have historically eliminated applicants who answer in the affirmative.

As a result, a national movement called “Ban-the-Box” has sought to eliminate this practice and achieve reform in this area of hiring in order to improve access to employment.

As of August 2014, 66 cities and counties and 11 states as well as the District of Columbia had passed ‘Ban-the-Box’ legislation. While legislation varies between jurisdictions, generally speaking these laws:

– Require employers to remove the check box on employment applications asking whether the candidate has ever been convicted of a crime.

– Require hiring managers to put off asking about a candidate’s criminal history until after an interview has been conducted or a provisional job offer has been extended.

In addition, some states also restrict employers from using criminal history as a sole disqualifier for employment; require employers to notify a job candidate if they are rejected for consideration on the basis of their criminal history; provide a copy of the documentation used to determine the presence of a criminal history to the candidate for their review; and/or restrict employers from making a hiring decision on the basis of criminal history unless the record has a rational relationship or clear connection to the duties of the position being sought.

States in the Northeast who have implemented some form of Ban-the-Box law include Connecticut, Delaware, Maryland, Massachusetts, New Jersey and Rhode Island. Within the Commonwealth of Pennsylvania, the City of Philadelphia has also implemented its own Ban-the-Box ordinance, applicable within the city’s jurisdiction. This is a good example because even if your company is not based in one of these jurisdictions , should you have a remote employee, sales rep or field office in one (such as Philadelphia), you are subject to these laws.

How One Ban-the-Box Ordinance Works

So, what does this mean for you as an employer? Let’s take the Philadelphia ordinance as a good example. In Philadelphia, Ban-the-Box regulates employer hiring practices as follows:

– Requires employers to remove questions about criminal convictions from job applications.

– Requires employers to avoid asking questions about criminal convictions during an applicant’s first job interview.

– Requires employers to delay performing a criminal background check on a given candidate until after the applicant’s first job interview.

– Requires employers to never make employment decisions (including termination decisions) on the basis of a closed case that did not result in a criminal conviction.

At same time, the Philadelphia ordinance allows the following practices by employers:

– Employers may ask a candidate about a criminal record after an application is received and after a first interview has been completed.

– Employers are not required to guarantee a job to a person with a criminal conviction.

– Employers are not subject to civil monetary or other judgments when a candidate files a human rights complaint with the City of Philadelphia, although employers may be fined by the City of Philadelphia itself. In addition, the Philadelphia ordinance exempts employers with fewer than ten employees, or those employers engaged in government criminal justice functions such as law enforcement, prisons and courts. It also specifically enables employers to evaluate and research criminal background for any position in which state or federal law proactively requires such action by the employer.

Preparing Proactively to Stay in Step with Changing Laws

Over the next 2-3 years, many analysts following the field expect a majority of states to enact Ban-the-Box laws, which means that the smart thing to do is to prepare now and make changes in your hiring practices across the board.

Smart steps to take now may include:

1. Removing criminal conviction questions from your standard application form.

2. Making sure that all existing versions of your standard application form are updated and revised accordingly, and that all prior versions are destroyed or deleted.

3. Implementing a written hiring policy that includes specific guidelines for when questions about criminal history are appropriate to ask. Remember that employers may legally identify criminal history information during a standard background check, so verbally asking this question may or may not be necessary depending upon your hiring process and specifics.

4. Providing guidance to all hiring personnel on how, when and what to ask (or not ask) regarding such questions, and requiring written indications (on a form or report) that a given candidate’s application has been received, and that a first interview has been performed/completed.

5. Implementing a written procedure for responding to the identification of a criminal history either through voluntary verbal indication by the applicant, or through the background check process. This should include any procedures you may wish (or be required) to institute regarding notification of the applicant.

6. Ensuring that hiring decisions are not made solely on the basis of criminal history, and that any decision to disqualify a candidate based even in part on this factor are documented and clearly connected to the job requirements and objectives.

7. Reviewing documented hiring procedures and standards to ensure that policies do not indicate that convicted persons should be eliminated from consideration across the board. These so-called ‘blanket’ statements could subject an employer to liability and the potential of a lawsuit from the U.S. Equal Employment Opportunity Commission (EEOC).

8. Ensuring that your organization stays informed about proposed and enacted Ban-the-Box in the states, counties and local jurisdictions in which you do business – including locations where you have a field office or remote personnel. For example, the State of Maryland has passed a Ban-the-Box law but within that state, a number of counties are considering ordinances that may apply additional regulations to employers above and beyond the state’s requirements.

Some trade organizations have responded to the Ban-the-Box movement with counter efforts designed to slow, stop or reverse such legislation. These include the National Retail Federation, some chambers of commerce and a number of other business organizations nationally, as well as at the state and local levels.

However, regardless of how you may feel about the issue, the important priority is to ensure that your hiring processes are prepared to operate effectively in an environment of change on this issue. By proactively implementing Ban-the-Box strategies now, you can stay ahead of the shifting seas of regulatory change; increase internal awareness within the company on this important issue; and enable your organization to transition effectively so that your team becomes comfortable and effective with a new approach.

Selected Sources:

Ban-the-Box Movement Goes Viral

Ban-the-Box: An Overview for Private Employers

Growing ‘Ban-the-Box’ Movement Impacts Hiring Practices

What it Means to ‘Ban-the-Box’

Paying a Price, Long After the Crime

“Ban-the-Box” Employment Law Gains Ground in 2014

Ban-the-Box: Philadelphia Commission on Human Relations

Editor’s Note: This article provides general information based upon HR Best Practices and does not constitute legal advice. Consult a human resource professional or speak with your attorney for questions specific to your circumstances.

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