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‘Ban-the-box’ movement making its way across the country

by Tara Eberline

Individuals from Sister Helen Prejean, author of Dead Man Walking, to former President Bill Clinton have contended that people are more than the worst thing they have ever done. It is a sentiment that many people desire—at least when viewing their own foibles. And now some employers across the country are using this argument to make it a little easier for those whose worst act resulted in a criminal conviction to later get a job.

Kansas-based Koch Industries, one of the country’s largest private employers, recently removed questions about criminal convictions from its job applications. Target and Wal-Mart have done so as well.

What is ‘ban the box’?
City by city, a new movement is changing the way job applications look, and it’s changing the way public and private employers are thinking about candidates with criminal arrests or convictions. “Ban the box” refers to the box that appears on many job applications asking applicants whether they have ever been arrested or convicted of a crime.

Though these new laws vary among jurisdictions, they generally prohibit employers from asking applicants to disclose arrests or convictions until after an interview has been conducted or a provisional job offer has been extended. The purpose of the law is to enable people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.

The “ban-the-box” movement is an effort originally organized by All of Us or None (www.allofusornone.org), a civil rights organization composed primarily of formerly incarcerated people and their families. The National Employment Law Project, a nonprofit organization focused on workplace issues, estimates that 70 million American adults—or nearly one out of every three—have been arrested or convicted. The numbers are even more staggering for people of color, as nearly 50 percent of black men have been arrested at least once by the time they turn 23 years old, and approximately one out of every three black men will go to prison in his lifetime. Statistics show that lack of employment makes it more likely that ex-offenders will reoffend, so those supporting the “ban-the-box” movement argue that employing more individuals with criminal convictions will have a positive impact on society.

The “ban-the-box” laws vary dramatically from jurisdiction to jurisdiction. Some just prohibit employers from asking about criminal convictions on the job application, while others also prohibit discussions of criminal convictions even during the first interview. Some restrict employers from looking at certain types of arrests or convictions at any point in the hiring process. And others apply only to employers with 10 or more employees, while yet others apply to all employers.

One thing all the laws have in common is that none of them prohibits employers from eventually obtaining information about an applicant’s recent criminal record and making an employment decision based on that information if it is job-related and consistent with business necessity.

States, local jurisdictions that ban the box
There are a total of 18 states representing nearly every region of the country that have adopted the policies —California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). Seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have removed the conviction history question on job applications for private employers. Additionally, more than 100 cities and counties have adopted legislation limiting employers’ right to ask about criminal convictions on job applications.

Additionally, some governors are imposing this change via Executive Order with respect to public-entity job applications, rather than passing a state law. Virginia’s governor, for example, recently issued an Executive Order to remove all questions regarding criminal history from applications for state government jobs, allowing agencies to conduct background checks on candidates only after finding them otherwise qualified for the position.

Opposing viewpoints
Opponents of the movement argue that employers are in the best position to assess when in the hiring process criminal history information is most relevant. And they note employers’ duty to employees and the public to maintain a safe working environment.

There are situations in which hiring an applicant with a criminal conviction—particularly a recent one involving violence or dishonesty—may subject your company to claims of negligent hiring or retention. And even worse, doing so could put other employees or customers at risk. Opponents also argue that this law creates yet another avenue for applicants not chosen for a position to file suit against the potential employer, leading to increased litigation costs for employers.

Challenges for employers
Like all changes in the employment-law landscape, this one is fraught with potential land mines for unwary employers. The largest challenge is that these laws vary so dramatically not only from state to state but also from city to city.

Employers wishing to run criminal background checks on applicants should work with their employment counsel on how best to manage these ever-changing requirements while also maintaining a safe and effective workforce. Together with your attorney, consult each jurisdiction’s state and municipal codes to ensure that any questions included on your job applications are lawful and that you run the background check at the proper stage of the hiring process.

Keeping these new rules in mind may expand your company’s applicant pool, help those who have truly learned from their mistakes to contribute positively to society, and help you avoid another area of potential employment litigation.

Tara Eberline is an employment law partner with Foulston Siefkin LLP. You can contact her at teberline@foulston.com.

Need to learn more? Performing applicant background checks in some form is a recommended practice. They can give you peace of mind in knowing that who hire is who he or she claims to be. And they are a useful tool for minimizing the risk of negligent hiring claims down the line. Listen to Background Checks Update: HR Best Practices Given EEOC Guidance, the FCRA & Ban-the-Box Laws on CD for guidance on how to ensure your compliance under EEOC guidance directly related to queries concerning criminal and arrest records, and the FCRA as well as recently enacted legislation across the country to illustrate how the push for “ban-the-box” has grown and the practical impact such legislation has on your rights to make inquiries into applicants’ backgrounds.