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For National Employers: It May Be Time to “Ban the Box”

July 7th, 2014 | Sterling

The completion of a job application is the first important step in the background check process. Employers use the application to collect basic information from an applicant to begin their evaluation of that individual for employment. One historically important question that has frequently appeared on job applications: “Have you ever been convicted of a crime?” The answer to that question may be viewed as one of the most important items of information on the application. Employment decisions have often been determined by the honesty and severity of any information provided in an applicant’s answer.

As background checks have become a standard process in corporate America over the past 20 years, concerns have developed that individuals with criminal convictions have become unemployable. The intent of a background check should always be to find the right person for the right job, not to unilaterally exclude anyone with a conviction.

Over the past few years, a movement has been spreading rapidly across state and local governments, that seeks to address the concern that individuals who indicate a prior criminal conviction on their application may be automatically excluded from the pool of applicants who progress to the interview stage. This movement has led to laws, known as “Ban the Box” laws, that prohibit or restrict questions regarding prior arrests and convictions on job applications. Laws that “Ban the Box” now exist in eleven states and over fifty counties and cities. The adoption of this type of law is expected to continue at a rapid pace.

“Ban the Box” laws can be a compliance nightmare for multi-jurisdictional companies. The challenge…how to keep up with the number of unique laws that have requirements that vary significantly from one another!

Some laws simply prohibit the check box for whether the applicant has a conviction;

Some laws apply only to public sector employees;

Some laws prohibit only certain types of questions;

Some laws permit asking about convictions only after the job interview or post job offer;

…and there are even more variations!

So what is an employer to do? If you are a regional employer, you may have a relatively easy time understanding the laws of specific area. For national employers, the laws are changing so rapidly, it has become increasingly difficult to create and maintain job applications that are compliant with state and local laws. For multi-state employers, the task of keeping up with the growing number of “Ban the Box” laws has become unmanageable.

With dozens of jurisdictions currently considering their own “Ban the Box” laws, it may be time for your company to also “Ban the Box”.

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.