North Carolina Ban the Box
November 2nd, 2020 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate
On August 18, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 158, “Furthering Fair Chance Policies in State and Government Employment” (the “Order”) which takes effect on November 1, 2020. Intended to increase reliance on merit in employment decisions, the order proclaims that departments, entities, boards, commissions, or committees over which the Governor has oversight (“State Agencies”) must remove criminal history questions from employment applications and may not inquire into an individual’s criminal history or conduct background checks until after the completion of an interview. Furthermore, State Agencies may not consider the following in employment decisions:
- Expunged or pardoned convictions
- Charges or convictions that do not relate to the employment
- Arrests that did not result in convictions
- Charges resulting in dismissals or not guilty verdicts
The Order states that state public employment decisions which are based on criminal history must be due to that history’s demonstrable relation to the job or consistency with business need. As such, State Agencies are required to establish criteria for considering criminal history information, leveraging the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, assistance with the implementation of which is to be provided by the Office of State Human Resources (OSHR).
Exemptions from the requirements of the Order apply to positions for which criminal convictions preclude individuals from employment including:
- Positions which require security clearance or access to sensitive public safety and security information
- Positions requiring certification by the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff’s Education and Training Standards Commission
- Positions subject to the Prison Rape Elimination Act
The Order additionally clarifies that employment decisions based on criminal history information are permitted when preempting state or federal law prohibits persons with certain convictions from particular positions.
Compliance with the Order is to be managed by the OSHR, and no private right of action is established. Although the Order only applies to State Agencies, the State Department of Administration will be reviewing the feasibility of extending similar policies to state contractors and will be reporting its findings by January 31, 2020. Compliance with the order is encouraged, but not required for agencies not under the Governor’s oversight, counties, municipalities, other political subdivisions, and private entities.
North Carolina employers should review their hiring policies and screening programs in response to the Order and consult with their legal counsel. Sterling clients who would like to modify their screening program in light of the Order should contact their account representative. Employers nationwide are encouraged to stay informed on the growing trend of Ban the Box and Fair Chance hiring initiatives and remain abreast of these and other employment laws in jurisdictions where they hire and are located. Other jurisdictions which have recently banned the box or initiated other fair chance measures include Waterloo, IA; Suffolk County, NY; Maryland; and St. Louis, MO; in addition to the Federal Fair Chance Act which bans the box for federal agencies and contractors.
The full text of the Order can be found here.
The information contained herein is for informational purposes only. Clients are encouraged to consult with their legal counsel on the impact of this new law. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice.
This and other important legislative updates can be found on the Sterling website: https://www.sterlingcheck.com/resources/compliance-updates/
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.