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Ban the Box Legislation Points to a Greater Need for Background Screening

 

Ban the box legislationMany who have filled out a job application have encountered “the box” -- it’s a little square, usually located toward the end of an employment application, next to a question that asks, “Have you ever been convicted of a criminal offense?

A spreading “ban the box” legislative push across the nation posits that asking an applicant if he/she has had a criminal history in the initial stages of hiring causes unfair discrimination toward those with previous criminal convictions. Proponents of “ban the box” legislation argue that a standard employment policy of asking if an applicant has committed a crime, in the initial stages of the application process, indirectly contributes to recidivism, and potentially causes disparate impact on protected classes under Title VII of the Civil Rights Act of 1964. Supporters contend that “ban the box” legislation will directly contribute to more equal hiring practices and, in turn, potentially lead to better communities.

The movement to enact “ban the box” legislation is growing along with federal pressure from the U.S. Equal Employment Opportunity Commission’s (EEOC) enforcement guidance report entitled, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”. The EEOC recommends in the aforementioned guidance report that companies proceed with caution when evaluating an applicant’s hire eligibility based on criminal record history. When assessing the criminal records history of an applicant’s background report, employers are advised by the EEOC to consider the job for which the applicant has applied, the amount of time that has since elapsed from the date of the criminal offense(s), as well as the nature, gravity, and scope of the criminal offense(s).            

Six States have Currently Enacted Statewide Ban the Box Legislation

Colorado

House Bill 1263 states that employers may not inquire about an applicant’s criminal history until a conditional offer of employment has been made.

Minnesota

State law H. F. 1301 states that a public employer may not inquire into an applicant’s criminal history until the applicant has been selected for an interview by the employer.

New Mexico

Senate Bill 254 states that a board, department, or agency of the state may not make an inquiry regarding an applicant’s criminal history on an initial employment application. The law further mandates that the aforementioned state agencies are prohibited from taking an applicant’s criminal conviction history into consideration unless that applicant has been selected as a finalist for the position.

Hawaii

House Bill 3528 states that an employer, employment agency and/or labor organization cannot discriminate against an applicant due to an applicant’s “court and arrest record”.

Connecticut

House Bill 5207 states that, “a person shall not be disqualified from employment by the state [of Connecticut] or any of its agencies, nor shall a person be disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate or registration is required to be issued by the state [of Connecticut] or any of its agencies solely because of a prior conviction of a crime.”

Massachusetts

Massachusetts General Laws Chapter 151B, Section 4, 804 CMR 3.01 places restrictions and limitations on what an employer can and cannot ask on an initial employment application regarding criminal record histories.

Additionally, many counties and cities have also enacted “ban the box” legislation, or similar legislation that restricts and/or limits what employers can and cannot include on an initial employment application. The National Employment Law Project has a resource guide, updated as of November, 2012, that highlights county and city legislation.

Employers Still at Risk for Negligent Hiring Claims
Pre-employment background screening plays a more important role than ever in the hiring process now that “ban the box” legislation is sweeping the United States. It is important for employers to note that active “ban the box” legislation does not exempt employers from claims of negligent hiring -- it is certainly not a green light to remove background screening from the hiring process. Conversely, employers now have to be even more thorough in their pre-employment background screening programs because there will not be a possibility to know of an applicant’s criminal history until after the initial stages of the hiring process. Although an employer may not be able to ask an applicant up-front about his/her criminal history in the state in which the employer is hiring, that does not mean that a criminal background check should not be performed.

Background Checks more Important than Ever
Employers are given, now more than ever, the role of assessing each job position in individual terms, and of creating an individualized assessment policy that incorporates and determines which background investigation searches will need to be ordered and reviewed for each job position for which the employer recruits. It may be advisable for employers who want to maintain compliance with their jurisdiction’s “ban the box” legislation, and for employers who desire to take the lead from the EEOC’s guidance report,  to consult with accredited background screening companies to develop customized background screening packages which meet employers’ business needs for each job position.

Employment Background Investigations (EBI) works with employers globally to provide a full range of comprehensive and legally compliant criminal background check solutions.  Our "Just One Solution" suite of background screening, drug testing, occupational healthcare, and electronic form I-9 services will help reduce the risks and liabilities of a bad hire!  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements.  EBI is not providing legal advice or counsel and nothing provided in this document should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

Comments

I think Minnesota has the right idea on this subject; ok to ask during the interview but not on the application. Candidates should view the question as an opportunity to present the employer with an example of accepting responsiblity and focus on what they took away from the experience. "I was young and I made a bad decision but I took responsiblity for my actions and here's what I learned from it."
Posted @ Thursday, February 14, 2013 9:55 AM by Missy
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