June 24th, 2022 | Chris Christian, Director of Compliance, Sterling

The Recent Evolution of Ban the Box/Fair Chance Laws

Background Checks

Ban the Box and Fair Chance laws, while the specific requirements may vary, require that employers first consider a job candidate’s qualifications without the stigma of considering their criminal record history until after the application process, job interview, or conditional job offer. The policies are designed to address the possibility of discrimination by providing job applicants with a fair chance at employment regardless of their criminal history. In 1998 Hawaii became the first state to pass the first “Ban the Box” law in the country. Since that time, Ban the Box/Fair Chance laws have evolved into much more complex laws which are now placing greater requirements on employers’ hiring and background screening practices. Overall, there are roughly 35 states and numerous cities/counties that have adopted some variation of a Ban the Box/Fair Chance law impacting private employers. Let’s explore these topics broadly with an eye toward staying up-to-date on the latest compliance developments.

Emergence and Evolution of Ban the Box/Fair Chance

When the first Ban the Box/Fair Chance laws emerged, they were primarily focused on prohibiting private and public employers from asking the applicant about their criminal history on the job application. Over the course of two decades, state and local jurisdictions have enacted Ban the Box/Fair Chance laws with requirement variations. In 2012 the US Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the consideration of criminal history records in employment decisions, and recommended that employers conduct an “Individualized Assessment” to determine if any criminal history discovered is job-related. Requirements similar to the EEOC’s Enforcement Guidance on conducting individualized assessments began showing up in state and local Ban the Box/Fair Chance laws, as well as other provisions.

In more recent years we have seen a variety of different models of Fair Chance laws emerge. The latest trend is that state and local jurisdictions are layering in their own unique requirements by increasing specific steps in the background screening process. However, this is making the laws more complex for employers to comply with. In addition, we are seeing a trend of jurisdictions expanding existing laws by imposing new, more stringent requirements than the original versions. Here are some examples of the evolving requirements we are seeing in these state and local laws:

  • More advanced EEOC-style individualized assessments presenting different and/or additional factors which employers must consider
  • Required use of specific forms/notices
  • Adverse action notice content and timing triggers, which are additional and/or different from the federal Fair Credit Reporting Act (FCRA) adverse action requirements
  • Changes in the timing of when a background screening may occur

Jurisdiction Recent Examples

Illinois “Employee Background Fairness Act” 2021 (SB 1480)

  • Makes it a civil rights violation for any employer to improperly take adverse action against an individual based on their conviction record
  • Employer may not consider conviction records except in certain circumstances and after conducting an individualized assessment. Must be a substantial relationship between offense and job position, considering specific factors
  • Requires specific pre-AA and final AA notices content:
  • Provide the disqualifying conviction/s and reason why disqualifying
  • Explanation of applicant’s/employee’s right to respond and submit evidence to challenge the accuracy of the conviction record and/or any evidence of rehabilitation
  • A copy of conviction record
  • The process the employer has for applicant/employee to challenge employer’s decision
  • Right of applicant/employee to file a complaint with the Illinois Department of Human Rights
  • Must allow five days between pre-adverse notice and final adverse notice for candidate response before making a final decision

New York City, NY – Fair Chance Act Amendments 2021 (Bill No. 1314-A)

  • Redefines definition of “conditional offer of employment”
  • An offer of employment (or a promotion or transfer) that can only be revoked based on 1) results of criminal background check, 2) a medical exam, 3) other info employer could not have reasonably known before making conditional offer
  • Expands definition of “non-convictions” that cannot be considered
  • Expands scope to independent contractors
  • Creates a bifurcated screening process:
  • First step – receive and evaluate non-criminal information
  • Second step – receive and evaluate criminal information
  • Updates and expands the individualized assessment process to create a distinct list of factors to use when considering:
  • (A) pending arrests or criminal charges of applicants or employees and;
  • (B) criminal convictions of current employees
  • Allows employer to place an employee on unpaid leave for a reasonable amount of time while employer conducts individualized assessment process
  • Expands the timing between the pre-adverse action notice and final adverse action notice to five business days

Philadelphia, PA – Fair Criminal Record Screening Standards 2021 (Bill No. 200479)

  • Expands scope to include independent contractors, gig workers, and current employees
  • Allows employers to ask about an employee’s pending criminal charges only if certain criteria are met:
  • The criminal offense bears a relationship to the employee’s duties or;
  • The criminal offense could pose unacceptable risk to employer
  • Inquiries into criminal history required by federal and state laws must still be delayed until a conditional offer has been extended

Compliance Takeaways

Employers should monitor state and local laws that may impact their screening policies and procedures, making sure to review those policies and procedures on a regular basis. Employers should also reassess their screening procedures in these jurisdictions, since the laws may have changed since their original enactment. In addition, employers should consult with legal counsel about their screening programs as they relate to Ban the Box/Fair Chance jurisdictions.

This blog post is part of Sterling’s Compliance blog series, diving into compliance trends, best practices, and updates.

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.