Just last week, Mark Wahlberg filed a formal petition with the Commonwealth of Massachusetts seeking a pardon for his 1988 criminal convictions for assault and battery by a dangerous weapon and possession of marijuana, amongst others. These crimes occurred well before Wahlberg became the public figure we all know from his work as an actor and film/television producer. Heck, these crimes happened before Wahlberg and his Funky Bunch were giving us all good vibrations and letting us know it’s about that time to bring forth the rhythm and the rhyme.
There has been some blowback from certain individuals about Wahlberg’s petition, particularly and understandably from advocates for the victims of his crimes. From an employment perspective, however, what is interesting are the reasons that Wahlberg is seeking a pardon. In his petition, Wahlberg talks about the “formal recognition” an “official public redemption” would offer. But his petition also states that his criminal history prevents him from obtaining a concessionaire’s license in California and elsewhere, a likely troublesome issue in light of his “Wahlburgers” joint venture with his brothers (“Our family, our story, our burgers” – catchy isn’t it?). In addition, Wahlberg states that his criminal record precludes him from obtaining positions in law enforcement and that a pardon would help him continue his efforts to help at-risk individuals through his current involvement with law enforcement and other charitable ventures. While we like to think otherwise, there are some laws and regulations that even famous people cannot circumvent.
The use of an individual’s criminal background in employment practices has been a hot topic for years. Certain positions, such as law enforcement as alluded to by Wahlberg, cannot be obtained by law, regulation, or other rule by those with specific criminal histories. In addition, employers face a tricky balance in determining whether a criminal background should be assessed in making an adverse employment decision or refusal to hire. In 2012, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance about the use of an applicant’s or employee’s criminal background in hiring or employment-related decisions. The EEOC’s guidance provided that use of criminal histories could have a disparate impact certain minority groups and therefore be unlawful under Title VII of the Civil Rights Act of 1964 unless the employer conducts an assessment for the following factors before making an employment decision: (1) the nature and gravity of the offense, (2) the time that has passed since the offense, conduct, and/or completion of the sentence, and (3) the nature of the job held or sought. In addition, many states have their own requirements for when and how criminal background checks can be used.
While these issues have been around for a while, what has started to gain traction is local and state “Ban the Box” laws. These laws effectively ban the “box” in the application form that asks applicants to answer questions regarding their criminal history, putting further restrictions on when criminal inquiries can be made during the hiring process and what cannot be put in advertisements for available positions.
In New Jersey, Governor Chris Christie signed The Opportunity to Compete Act (known as Ban the Box Law) on August 11, 2014, and it is will become effective March 1, 2015. Briefly, the law prohibits employers from making criminal inquiries (either orally or through an application) until the first interview has been completed. The New Jersey law also prohibits job postings or advertisements that state the employer will not consider applicants who have been arrested or convicted of one or more crimes or offenses. Fortunately, the law doesn’t have a private cause of action, but imposes escalating civil penalties for each offense, and provides a voluntary disclosure exception to permit employers to inquire about criminal history if the applicant voluntarily discloses it during the application process or first interview.
Many other states including Massachusetts, Hawaii, Minnesota, Rhode Island, Delaware, and Illinois have their own version of the ban the box law, and a number of municipalities have passed ban the box ordinances, such as Philadelphia, Baltimore, San Francisco, and others. Employers should be familiar with the prohibitions in the applicable ban the box law in their jurisdiction as they can vary from state to state and municipality to municipality.
So a word of advice using terminology the great thespian Mark Wahlberg would appreciate. Employers are not Invincible and it doesn’t always happen to The Other Guys, it could happen to you. Although you may believe all this legislation comes from the out-of-touch minds of business model Transformers whose intellect would make them more appropriate residents of the Planet of the Apes, these laws are Happening and could result in The Perfect Storm of liability. So rather than Fear all this regulation, keep up to date on compliance measures and if you do so, your business will not be The Departed, but rather could be the Lone Survivor. And rather than spending sleepless nights worrying about liability and litigation costs, your evenings will be carefree Boogie Nights, where you can celebrate your business’s success and good fortune with the rest of your Entourage.
