May 3rd, 2017 | Debbie Lamb, Sterling Talent Solutions

Ban the Box: Where Are We Now?

View out of the box

You hear it in the news every day…everyone has an opinion about what is going on in the country and there seems to be a complete split between political parties on pretty much every issue. But, there is one law that is getting bi-partisan support across the country: Ban the Box laws. These laws started going into effect in 1998 and have exploded in popularity in the last three years. Sterling hosted a webinar entitled “Ban the Box” in 2017: Where Are We Now? William Greenbaum and Julie Levinson Werner of Lowenstein Sandler, LLP discussed the latest information on state and local ban the box legislation.

What is Ban the Box?

Ban the Box laws prohibit employers from inquiring about prior criminal convictions until at a later point in the hiring process. The laws make it illegal to include a checkbox on a job application asking about criminal history. These laws prevent companies from asking about a job applicant’s criminal history on an application and in some cases during an interview. The criminal history questions can be asked later in the hiring process, such as after an offer is made to the applicant and can be investigated, with the consent of the applicant, during a background screening check. The ban the box law is intended to promote evaluating applicants based on their qualifications instead of automatically disqualifying convicted criminals.

Ban the Box Laws across the US

Ban the box laws are also called “Fair Chance” or “Fair Opportunity” laws. There are a variety of these laws across the country that can apply to public, private or both types of employees. Currently, over 150 cities, municipalities or counties have banned the box for public and/or private employees. Nine states have ban the box laws for both private and public employees and 16 states have ban the box laws for public employees and certain contractors.

With so many different ban the box laws across the country, compliance issues are created because the laws are not uniform or consistent from city to city or even state to state. In fact, some neighboring municipalities or metro areas will have different ban the box regulations. Some states will designate a private company and the number of employees that will be affected by the ban the box laws, while others specify all employees. Also, each city, county and state will have specific penalties and fines for disregarding the law. Two such examples are California and New York:

California: The state of California’s ban the box law does not apply to private companies, but cities such as Los Angeles and San Francisco have created much more stringent ban the box laws. San Francisco’s Fair Chance Law applies to private companies with over 20 or more employees. The Fair Chance Initiative in Los Angeles, which just went into effect, applies to all employers, including job placement and employment agencies with 10 or more employees. Employment includes temporary and seasonal work, contracted, contingent, or any form of educational or vocational training with or without pay. In both cities, employers must conduct an individual assessment of the candidate. Before taking adverse action against the applicant, the employer must perform a written assessment that links the applicant’s criminal history with the position they are hiring for. The employer must consider the nature and the gravity of the offense, the time since it occurred and the nature of the position that is being sought.

New York: New York State’s Human Rights Law prohibits employers from inquiring about prior arrests not yielding a criminal conviction and discriminating against current employees and job applicants based on prior arrests and/or criminal convictions. An employer cannot refuse to hire an applicant with a criminal record. Article 23-A of the New York Corrections Law applies to public and private employers with 10 or more employees. It requires employers to provide a written explanation for refusing to hire an applicant with a criminal record within 30 days of receiving a request. New York City goes even further by prohibiting public and private employers with at least four employees from inquiring about an applicant’s criminal background until after a conditional offer of employment is made.

Companies that do business in numerous jurisdictions could face a tough challenge complying with multiple variations of ban the box laws and regulations. Some organizations might even be less willing to conduct criminal background checks out of fear that an unintended violation might result in fines or even litigation, even though failing to do background screening could result in costly bad hires.

Be Compliant

On top of the state and local ban the box laws; there are federal employment regulations that must be complied with during the hiring process. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee. In 2012, the EEOC issued a guidance to address the use of applicants’ and employees’ arrest and conviction records in employee decisions. The EEOC rule states that before disqualifying an individual with a criminal record from employment, an employer should engage in an individualized assessment involving a dialogue with the individual as well as other factors including the facts and circumstances surrounding the offense, the age at the time of conviction, rehabilitation efforts and employment and character references.

How Ban the Box Effects Employers

Sterling believes that the employer is best able to assess their hiring needs.

Because of the many ban the box, privacy and employment laws, employers are doing a “balancing act” when it comes to their hiring processes. Companies need to keep the following in mind when creating a background screening policy to fit their needs:

  • Remove the box on the application that asks about past criminal convictions
  • Note that a conviction is not an automatic bar to employment. Falsification of an application is an automatic bar to employment
  • State the background screening record retention policy
  • Consult with legal counsel before forming any background screening policy
  • Provide a sample background screening policy to applicants

Any labor law judgments need to be taken into consideration forcing organizations to review their employment applications, interview practices and hiring processes to make sure they are compliant with the new laws. It is crucial for companies to be aware of the specific hiring regulations in their city, county and state. Even more important is that companies have to take action to comply with the regulations by talking to legal counsel and having a third party employee screening company that is up-to-date on the ban the box laws. To find more examples of state and city ban the box laws listen to the On Demand version of our webinar. The On Demand version of the webinar also qualifies for HRCI and SHRM credits.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.