How “Ban the Box” Could Affect Your 2017 Hiring

Taking effect January 22, 2017, private employers in Los Angeles, Calif. will be required to “ban the box”—postpone questions about an candidate’s criminal history—until a conditional job offer is extended. Los Angeles joins seven other cities which have passed this ordinance; eight others have added the decision to their schedules. Read this Workforce Compliance article to learn how Ban the Box could affect your hiring process, and know what to expect next from Arnall Golden Gregory LLP. Original article below & credit to: Montserrat Miller, WorkforceComplianceInsights.com

Will Ban the Box Measures Spread at the Local Level—Employment Trend 2017?

By Montserrat Miller on December 21, 2016 POSTED IN BAN THE BOX, CRIMINAL HISTORY RECORDS Los Angeles is the latest major city to pass a Ban the Box measure (Ordinance 184652) applicable to private employers. It will become effective January 22, 2017 and will be enforced beginning in July 2017. Other major cities with Ban the Box laws include:

• Austin, TX
• New York City, NY
• Philadelphia, PA
• Portland, OR
• San Francisco, CA
• Seattle, WA
• Washington, DC

And don’t forget that eight states have Ban the Box measures on their books which are applicable to private employers—HI, IL, MA, MN, NJ, OR, RI, VT. What is Ban the Box? In its most basic form it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions). Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check. Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. At least in theory that’s what is supposed to happen as a result of Ban the Box measures, which are often referred to as fair hiring policies. But, nothing in life is simple. Often, Ban the Box measures go beyond simply requiring employers remove the criminal history question from the job application and they include additional requirements, such as requiring:

• Employers conduct an individualized assessment if criminal history is discovered during a background check (e.g., Austin, San Francisco, Los Angeles).
• Employers advise the candidate the reason for their decision to not hire if it includes criminal history information (e.g., Chicago, Portland, San Francisco, Seattle, Washington, DC).
• Employers provide a specific amount of time to allow the candidate to review and respond to criminal history information discovered as a result of a background check (e.g., Philadelphia, San Francisco).
• Employers provide disclosures about the law (e.g., Philadelphia, San Francisco, Washington, DC).
• Employers cannot have restrictive language in their advertisements (e.g., Seattle).
• Important although above bullet points cover some of the key requirements, they are not exhaustive as Ban the Box measures are similar but not identical.
• And, and, and (yes, I meant three and’s), don’t forget that as a private employer you must also comply with the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) if you receiving background check reports from a third-party background screening company.

For employers in a jurisdiction that has a Ban the Box law it’s important to understand what your obligations are. A comprehensive background screening policy will assist any employer seeking compliance with federal and state law. If that is on your “to do” list for 2017, we can assist in developing policies and procedures.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.