What to Do About ‘Ban the Box’

“Ban the Box” is a national civil-rights movement backed by advocates for job applicants with criminal convictions. Proponents of these laws believe that expanding employment opportunities for individuals with criminal convictions is a major factor in lowering recidivism rates.

Generally the laws prohibit employers from asking about an applicant’s criminal-background history until later in the interview process. Most of these laws prohibit employers from including the have you ever been convicted of a criminal offense” question on an employment application – thus “banning the box” – and instead limit employers’ ability to ask the criminal-history question until after a conditional offer of employment is made or after an applicant has been selected for an interview.

Advocates argue that “Ban the Box” laws reduce the barriers to obtaining employment for convicted criminals by allowing applicants to demonstrate their skills and qualifications prior to revealing their criminal histories.

A National Trend

In August 2014 New Jersey joined a growing number of states prohibiting employers from asking about applicants’ criminal histories early in the hiring process. Thirteen states have passed statewide “Ban the Box” hiring laws covering public employers and six of those states (Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, and Rhode Island) along with the District of Columbia, include private employers in the ban. Nationwide, almost 70 cities and counties have adopted similar laws.

In its 2012 Guidance, the EEOC  endorsed removing the criminal-conviction question from job applications. Federal legislation – The Ban the Box Act – was introduced in the U.S. House of Representatives in 2012 but died in committee.

In addition to the criminal-conviction question ban, many of the “Ban the Box” laws contain additional requirements such as a test for employers that must be undertaken before asking about criminal history, limitations on the types of records employers can consider, and notification requirements to the applicant when criminal information is being used. Compliance can be time consuming and costly.

A Unique Challenge

According to some studies, over 90% of employers conduct criminal-background checks for some job applicants and over 70% of employers conduct background checks on all potential new hires.

Most decision makers want information about criminal behavior before bringing a candidate into the organization. The rationale is easy – employers want to identify candidates who are honest when filling out their applications, find those who display a history of good decision-making and judgment, and reduce the risk of criminal behavior in the workplace and related civil liability by excluding those applicants who may be most likely to (re)engage in criminal activity at work.

Despite these legitimate and important business concerns, the current regulatory climate has changed. It’s moving toward limited inquiry into only certain aspects of a candidate’s background, and then only when the information sought is relevant to the position; and in “Ban the Box” jurisdictions only later in the application process.

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Our Advice

If you hire in a “Ban the Box” jurisdiction you likely must remove the “box” asking about criminal history from the application. Develop a screening and hiring policy in compliance with “Ban the Box” laws and advise interviewing managers and recruiters that they cannot ask about criminal convictions until permitted by the law.

Employers who hire or place workers in jobs in multiple jurisdictions or who provide access to applications on a nationwide basis, now must consider the law and policy of each location, possibly ending up with different processes depending on where they’re located.

Options include:

  1. Removing the “box” from your application and asking the criminal-conviction question as a supplement to the application only in those jurisdictions where it is not prohibited;
  2. Including the criminal-conviction question on the application but providing instructions to applicants in covered jurisdictions not to answer the criminal-conviction question;
  3. Having different applications in covered jurisdictions.

Doing nothing is not the best option. The “Ban the Box” laws have various penalties including fines.

This is also a prime opportunity to review your hiring policies and ensure that all involved in the process are trained on the latest EEOC guidance and state laws regarding handling arrest records and convictions. You should not have a blanket prohibition on hiring individuals with convictions.

Instead, make hiring decisions based on the nature of duties, the environment where the work is performed and the exposure to certain types of customers or clients.

Image: phasinphoto / FreeDigitalPhotos.net

Andria L. Ryan, is a partner in the Atlanta office of Fisher & Phillips LLP, which is one of the country’s oldest and largest firms devoted exclusively to representing employers in labor, employment, civil rights, employee benefits and business immigration law. Ms. Ryan joined the law firm in 1988. Ms. Ryan received her bachelor's degree from American University in Washington, D.C. in 1985 and received her law degree from Catholic University in 1988.

In 2005, Ms. Ryan served as Chair of the State Bar of Georgia’s Labor and Employment Law Section. Ms. Ryan is "AV" Peer Review Rated by Martindale-Hubbell. She is an active member of the firm’s Healthcare Practice Group and chairs the firm’s Hospitality Practice Group. She represents numerous employers throughout the United States in various phases of labor and employment law, including employment discrimination and harassment, wage and hour, immigration, and labor relations

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