HR Management & Compliance, Recruiting

Laws That ‘Ban the Box’ on Job Applications Keep Trending

“Ban the box.” It’s not just a catchy phrase, but represents a law that restricts employers from asking a job applicant about his or her criminal history during the initial employment application.

The ban-the-box law — a state, county and city mandate that requires employers to remove the criminal record disclosure box from job applications — has become a legislative trend and affects both public and private sector employers.

Last month, Baltimore, Md., and Rochester, N.Y., became the most recent cities to each enact a ban-the-box ordinance.

Increasingly, employers are restricted from asking applicants to disclose criminal history

While the Baltimore and Rochester ordinances apply to private employers, 12 states — California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island — and more than 60 counties and major cities — from Atlanta, Boston and Chicago to Philadelphia, San Francisco (also private) and Seattle — have adopted similar laws for government employment, according to a Ban the Box report by the National Employment Law Project.

In addition, Hawaii (the first state to ban the box in 1998), Massachusetts, Minnesota and Rhode Island all have extended statewide “ban the box” laws to include private employers, according to NELP’s Statewide Ban the Box Resource Guide.

Georgia plans to ban the box from applications for most state jobs by executive order as soon as next month, according to spokeswoman Sasha Dlugolenski, a spokesperson for Georgia governor Nathan Deal (R). Legislation also is pending in New Jersey.

Washington, D.C. City Council member Tommy Wells has said that he wants D.C. to extend the city’s 2010 law banning the box on city employment applications to private businesses.

Some of the nation’s biggest employers, such as Wal-Mart and Target, also have banned the box, according to a report by Jeffrey Stinson of The Pew Charitable Trusts.

Rochester and Baltimore ‘Ban-the-Box’ Ordinances

The Rochester ordinance, which becomes effective on Nov. 18, 2014, prohibits private employers from requiring an applicant to disclose or reveal any criminal conviction information during the “application process.”

Baltimore’s Fair Criminal-Record Screening Practices ordinance bans private employers from inquiring about or conducting a criminal background check on an applicant until after an employer has essentially completed the hiring process and conditionally offered a position to an applicant.

The restriction applies to any employer with 10 or more employees within the city of Baltimore, whereas the Rochester “Ban the Box” ordinance applies to any private employer that employs at least four persons in any position where their primary place of work is located within the City of Rochester.

The Rochester “application process” begins when the applicant inquires about employment and ends when an employer has conducted an initial employment interview or made a conditional offer of employment. The employer may inquire about a criminal conviction no earlier than after the “initial interview.”

“Initial interview” means “direct contact by phone or in person, between the applicant and the prospective employer to discuss the employment being sought or the applicant’s qualifications.”

If the employer does not conduct an interview, the employer must inform the applicant whether a criminal background check will be conducted before employment is to begin and must wait until after it has extended a conditional offer of employment before conducting the criminal background check or otherwise inquiring into the applicant’s criminal history.

Rochester is the second city in New York, after Buffalo, to enact such legislation.

Employers still must comply with Article 23-A of the New York State Correction Law and Fair Credit Reporting Act when considering an applicant’s prior convictions in determining suitability for employment, says Jackson Lewis attorneys Richard Greenberg and Clemente J. Parente.

Article 23-A of the New York State Correction Law permits the withdrawal of a conditional offer employment when the employer reasonably determines that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought or that hiring the candidate would pose an unreasonable risk to property or to the safety of individuals or the general public. Recent U.S. Equal Employment Opportunity Commission guidance under federal discrimination law is similar, Greenberg and Parente report.

Unlike some other ban-the-box laws, the Baltimore ordinance does not require that employers provide any additional notices to applicants other than those required under the Fair Credit Reporting Act, nor does it limit how far back an employer can review, according to Seyfarth Shaw attorneys Paul Kehoe and Pamela Q. Devata.

What Should Employers Do?

Each of the ban-the-box laws is different, says Kehoe and Devata, relative to:

  • when the criminal history question may be asked;
  • what types of convictions can be asked about;
  • how far back an inquiry may extend; and
  • what exceptions apply.

With so many questions surrounding the application and administration of these new and proposed ban-the-box laws, employers should have discussions with their background screening providers to ensure that they are only obtaining information that they can use in a hiring decision, says Kehoe and Devata.

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