Learning & Development, Recruiting

Ban-the-Box Laws on the Increase

Indiana recently became the first state in the nation to prohibit all local ban-the-box laws. Senate Bill 312, signed into law by Gov. Eric Holcomb, outlaws city and county legal entities from enacting local ban-the-box legislation in order to unify legislation at the statewide level.

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A uniform law will make it easier for employers, according to one expert.
“The new law in Indiana will create an easier legal environment for businesses to operate regarding governance of pre-employment background screening and the use of criminal background records,” says Adam Almeida, president and CEO of CriminalBackgroundRecords.com, a third-party background screening company.
Nevertheless, employers that go it alone in Indiana and elsewhere may face challenges.
“The ultimate takeaway and most urgent, immediate impact on business is that laws governing the use of public records, such as criminal history, change. It is critical that when an impactful event such as the Indiana law occur pre-employment background screening policies are reviewed,” says Almeida. “A best practice is to work with a well-qualified third-party background screening company that specializes in employment background checks in order to maintain full compliance with existing and pending law.”

About State and Local Laws

Ban-the-box laws “prohibit employers from asking questions of applicants regarding previous criminal history (and discriminating against them based on their answer) too early in the hiring and recruiting process,” explains Bridget Miller in a recent Recruiting Daily Advisor article.
The “box” has to do with a box on a job application that a person is supposed to check if he or she has ever been convicted of a crime. Banning the box means doing away with this question, at least initially.
Depending on the law—and laws vary greatly—an employer may not ask about criminal history until after the first interview or until a conditional offer of employment is made. Some laws likewise require a delay in a criminal background check.
Laws have been enacted in effort to give job seekers who have been convicted of a crime an opportunity to be considered for employment without bias. Civil rights and fair chance advocates say ban-the-box works.
But again, the laws are not universal. They vary by state, and by county and municipality. According to the National Employment Law Project (NELP), a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting low-wage and unemployed workers, more than 150 counties and cities have adopted ban-the-box laws.
To further complicate the issue, some laws apply to only public sector employers, while others apply to private employers as well. In addition, guidelines for compliance are sometimes based on number of employees.

About the EEOC

There is currently no federal ban-the-box law. However, the U.S. Equal Employment Opportunity Commission (EEOC) has established “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”
Title VII applies to employers with 15 or more employees; a “covered employer” is an employer that meets this definition.
The EEOC guidance states that although having a criminal record is not listed as a protected basis in Title VII, “a covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis.”
As an example, the EEOC indicates there is a disparate treatment liability when a covered employer rejects an African American based on his criminal record but recently hired a white applicant with a comparable criminal record.
Title VII, the guidance notes, prohibits “not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking.”
The EEOC looks at biased statements, inconsistencies in the hiring process, and employment testing processes, among other things when a claim is brought against an employer.
“Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population,” the guidance notes. The objective of the guidance, Title VII, and the EEOC is to further equal opportunity for all.

Paula Paula Santonocito, Contributing Editor for Recruiting Daily Advisor, is a business journalist specializing in employment issues. She is the author of more than 1,000 articles on a wide range of human resource and career topics, with an emphasis on recruiting and hiring. Her articles have been featured in many global and domestic publications and information outlets, referenced in academic and legal publications as well as books, and translated into several languages.

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