In yesterday’s Advisor we began to explore ban the box laws. Today, more on that topic.
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Employers should be aware of the laws that are in effect in all jurisdictions of operation. Many employers have opted to create their own policies company-wide, which are in compliance with the strictest of any laws at any local level, to ensure legal compliance. But even then employers should be careful, as many of the laws have conflicting requirements in different jurisdictions.
Employers also need to be aware of their restrictions and be sure to train everyone involved in the hiring process to ensure that everyone knows when these types of queries can be presented and what employers can and cannot hold against an applicant in terms of criminal history. Employers also need to be sure to train hiring teams on anti-discrimination laws in general and ensure that they’re not creating a situation where hiring teams inadvertently discriminate by making assumptions about applicants, even in the absence of criminal history inquiries up front. (This is, in fact, one of the biggest problems associated with “ban the box” initiatives – in the absence of data about criminal history, those involved in the hiring process may be more likely to discriminate based on stereotypes.)
Employers understandably still want to conduct background screenings – and they still can – they just need to be aware that some questions cannot be asked until later in the hiring process to ensure that no one is unfairly excluded too soon. Employers are not required to hire someone who has a criminal history that would present a clear problem, such as a history of financial fraud working at a bank. But they are required in most cases to not unfairly eliminate candidates up front without first giving them a chance.