To institute fair hiring practices concerning past convictions, there is a growing movement referred to as “Ban the Box”. This article offers a snapshot into the genesis of the movement and current trends in legislations, regulations, and ordinances that will have a direct impact on hiring practices across the country.
Defining the Issue
As most people who work in the background screening industry know, employment applications typically have a box dedicated to asking about an applicant’s prior criminal history. However, in many cases, the facts show that people who are willing and able to do a job will have their applications discarded or otherwise rejected based on a past criminal history, even if the crime occurred years ago and has no relation to the employment tasks at hand.
And often, a person with a prior criminal history has no recourse or protection against this type of action, as the only other options would be to leave the field blank or to lie, both of which would also be detrimental to a person’s chance of employment. Therefore, a person with a past criminal history may be subject to immediate bias from a potential employer even if the applicant is otherwise qualified for the position.
The “Ban the Box” movement, which currently happens at a state and local levels, is an effort to ensure an applicant with prior criminal history has a fair chance at employment. By banning the box from employment applications, the applicant would presumably be given fair review and would not be subject to revealing his or her prior criminal history until the client makes an offer to the applicant that is conditional upon a background check report that meets the hiring criteria of the employer.
In some cases, employers may argue that these “Ban the Box” measures will mean they will be unable to pre-screen employees to weed out applicants whose prior offenses render them poor candidates for certain job functions (for example, an applicant with a history of embezzlement who applies for a cashier job), causing these employers to have to spend more money on hiring.
However, advocates believe these measures will provide fairness in the application process and will give potential employees the opportunity to interview for a particular position to determine if they are the right fit, without immediately disqualifying them due to past criminal history. In doing so, many perfectly qualified employees will then have a fair opportunity for employment, regardless of their prior criminal history.
Legislative Trends for Ban the Box
The United States Equal Employment Opportunity Commission (EEOC) enacted guidance on the consideration of arrest and conviction records in employment decisions and recommends that employers not ask about previous criminal history and, when these employers do make such inquiries, they limit the questions to offenses that relate specifically to the job in question. However, this is limited to suggested practices and is not currently federal legislation.
Noticeably, two cities have enacted “Ban the Box” measures that are somewhat in line with the EEOC guidance.
Ban the Box in Newark, NJ
For example, an ordinance in Newark, NJ, allows an individual to contest a hiring decision that was made on the basis of the applicant holding a prior criminal record. The employer is required to notify the prospective employee of the decision, provide a copy of the criminal background check, and offer a written notice that details the convictions that relate to the position for which the applicant has applied. The prospective employee then has ten days in which to reply to an Applicant Criminal Record Consideration Form for reconsideration and may also send supplemental materials to help support his or her viability as a strong employee. The employer then has an opportunity to review the materials and reconsider.
Ban the Box in San Francisco, CA
In San Francisco, CA, an employer is required to perform an individualized assessment of the applicant and can consider only directly-related convictions. Additionally, the employer must consider the time that has elapsed since the conviction or unresolved arrest and must also consider mitigating factors such as inaccuracy and mitigating factors. If the employer does opt to exclude someone based on such information, the employer must provide the prospective employee with the background check and the items that have led to that decision. The law is required to be posted in every job site in San Francisco in several different languages
Other Ban the Box Provisions
Other cities, municipalities, counties, and states recently enacted or are considering enacting various “Ban the Box” measures. Some apply to employers in the public sector only and some apply to employers in the public and private sectors. In Macon-Bibb County, GA, Commissioner Al Tilman is proposing that convicted felons no longer be required to check the box that asks about their criminal history. He believes this alone will create less discrimination against convicted felons, though each applicant would still be subject to a background check. Georgia as a whole no longer requires job applicants to disclose their criminal histories on employment forms; it applies only to those seeking work with state agencies and would prohibit those agencies from using a prior criminal history as an automatic disqualifier for job applicants. In New Jersey, recent legislation now limits the timeframe in which an employer may make an inquiry about a criminal conviction, which applies to both the public and private sectors.
Portland, OR, is currently considering preventing employers from inquiring about a prospective employee’s criminal history until after making the employment offer, and in Virginia, Governor Terry McAuliffe has signed legislation into effect that requires the state’s Department of Human Resources Management to remove questions about criminal histories from employment applications. At the federal level, criminal justice reform advocates are presently encouraging President Barack Obama to sign “Ban the Box” legislation into effect.
Individuals, legislators, and other groups across the country are becoming increasingly aware of the need to offer a fair chance at employment to people who have prior criminal history. At ClearStar, we believe in fairness in hiring and work with companies to ensure best practices in background checks that also conform to local, state, and federal law. As the move toward more “Ban the Box” provisions continues, we look forward to being part of the dialogue as we champion both the rights of applicants and the best interest of employers.