Is Your Business Subject to a “Ban-the-Box” Law?

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Roughly half the U.S. population lives in areas where government entities must incorporate “ban-the-box” policies into their hiring practices. The “box” refers to the empty square on a job application next to the question that begins, “Have you ever been convicted…?” Applicants are expected to check the box or not check it, depending on their legal histories.

Now over 100 cities and 21 states have banned the inclusion of that box on their job applications. Seven states — Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island — have taken the approach further by requiring private employers to comply with the same policy.

Advocates of “fair chance” legislation, as it’s also known, are pushing hard to get more states to adopt this as a universal requirement. Many states that have added the policy regarding public employees are logical candidates for making the requirement universal.

In 2012, the Equal Employment Opportunity Commission (EEOC) issued detailed guidance on the subject of how employers should deal with job applicants who have arrest and conviction records. Specifically, the EEOC addressed how it would view employer policies that enforce Title VII of the U.S. Civil Rights Act. State and local ban-the-box laws often are based on this EEOC guidance.

Good for Business

Ban-the-box advocates argue that these rules benefit employers as well as prospective new hires. “Removing job barriers helps the economy and is good for business,” suggests the National Employment Law Project. They point out that several large employers — including Starbucks, Target, Walmart, and Koch Industries — have dropped the practice of asking job applicants about criminal convictions, even where they’re not required to do so. Whatever the reason for this voluntary action, smaller employers may view it as an endorsement of the policy.

To be clear, ban-the-box laws don’t prevent employers from rejecting job applications from convicted criminals. Rather, they block employers from asking applicants very early in the hiring process (that is, on an application form or in the first interview) about their criminal histories. For example, New Jersey’s law, which took effect in March 2015, includes a black-out period as soon as either the job applicant or the employer contacts the other party about a possible job.

However, employers can ask applicants about criminal convictions after the employer has conducted a first interview by phone, in person or by other means. The hope and theory is that, by this point, the employer would’ve given the applicant an opportunity to demonstrate qualifications that might outweigh any concerns about criminal history. In other words, the applicant wouldn’t have been rejected preemptively.

Note: Some state ban-the-box laws, including those in New Jersey and Illinois, exempt small employers — those having fewer than 15 employees — from the statute’s requirements.

EEOC Guidance

Even if your business isn’t currently covered by such a law, it’s important to know how the federal government stands on the issue. According to the EEOC, a policy for hiring or not hiring people with criminal records may be applied equally among all demographic groups and still violate Title VII of the Civil Rights Act. That is, the effect of a particular policy may be to exclude people of a particular race, national origin or other group. Assuming there’s no underlying business necessity, such a policy will not likely stand up to scrutiny.

To determine whether your hiring policy satisfies the Civil Rights Act, the EEOC will consider the degree to which you “individualize” your assessment of job candidates, instead of painting them with a broad brush. When you reach the point of discovering that a job applicant has been convicted of a crime, you need to give that person the chance to explain why the conviction isn’t relevant to the hiring decision.

Suggested Factors

Here’s a list of factors the EEOC suggests you take into account:

  • The circumstances surrounding the offense or conduct,
  • The number of offenses for which the individual was convicted,
  • Age at the time of conviction, or release from prison,
  • Evidence that the individual performed the same type of work, after the conviction, whether with the same or a different employer, with no known criminal conduct,
  • The length and consistency of employment history before and after the offense or conduct,
  • Rehabilitation efforts, for example, education/training,
  • Employment or character references and any other information regarding fitness for the particular position, and
  • Whether the individual is bonded under a federal, state or local bonding program.

The EEOC also will look at investigation criteria they call “Green factors,” as outlined in the 1977 ruling by the U.S. Court of Appeals for the Eighth Circuit in Green v. Missouri Pacific Railroad (549 F.2d 1158). Green factors include:

  • The nature and gravity of the offense or conduct,
  • The time that has passed since the offense, conduct and/or completion of the sentence, and
  • The nature of the job held or sought.

Do a Preemptive Policy Check

Even if you don’t do business in a ban-the-box state or locality, it’s smart to review your hiring policies periodically. Be sure your practices don’t incorporate discrimination towards any demographic, otherwise your company could be vulnerable to accusations of unfair treatment. Bad practices may also keep you from hiring applicants who are perfect for the job, in spite of past brushes with the law.

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