OPM to Propose Ban-the-Box Rule in May 2016

By Roy Maurer Nov 30, 2015
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The Office of Personnel Management (OPM) plans to propose a rule in May 2016 prohibiting federal agencies from asking applicants about their criminal background information until they are referred to a hiring manager.

The modified hiring regulations would “better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for federal employment,” the agency said. Hiring managers will be able to request exceptions when there are “legitimate, specific, job-related reasons” why agencies may need to disqualify candidates with criminal histories from particular jobs.

President Barack Obama directed OPM on Nov. 2, 2015, to remove from federal job application forms the check box requiring applicants to indicate if they have a criminal history, and delay criminal history inquiries until later in the hiring process—a practice that is commonly known as banning the box.

Melissa Sorenson, executive director of the National Association of Professional Background Screeners (NAPBS) said that her organization commends the federal government for its efforts to reintegrate people into the workforce. “In its capacity as an employer, the federal government is best positioned to identify appropriate changes to its hiring process that allow for reintegration while maintaining a process that mitigates risk.”

Sorenson explained that “delaying the box” to a later phase in the hiring process is “one way employers can demonstrate their support of reintegration while continuing to verify an individual’s background by asking about criminal history later in the process and completing a background check to help identify that the individual is an appropriate fit for the position.”

NAPBS is concerned however, with the number of ban-the-box bills introduced throughout the country and the many variances contained within them. “The sheer volume of ban-the-box bills that continue to be pushed through jurisdictions at all levels of state and municipal government in as many formats and with as many varying requirements as there are jurisdictions is problematic in that not only does it delay the hiring process but makes compliance a near impossibility for employers operating in multiple jurisdictions,” Sorenson said.

Momentum for ban-the-box policies has grown exponentially in recent years. Currently, 19 states have adopted the policies, at least for the public sector: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont and Virginia. Seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have also removed the criminal history check box on job applications for private employers.

“Ban the box for federal agencies is an initial step, but we are urging the administration to cover federal contractors and to adopt fair-chance hiring principles, which would incorporate EEOC [Equal Employment Opportunity Commission] guidelines,” said Michelle Natividad Rodriguez, a senior staff attorney at the National Employment Law Project (NELP) based in Oakland, Calif.

The White House supports extending ban-the-box policies to cover the hiring practices of federal contractors.

On Oct. 7, 2015, the Senate Homeland Security and Governmental Affairs Committee voted unanimously to approve the Fair Chance Act, which would ban federal contractors from asking job applicants to disclose their criminal histories before making conditional job offers.

Covering federal contractors would greatly extend the impact of the federal policy, given that nearly one in four U.S. workers is employed either by a federal contractor, a subcontractor or the federal government, said NELP Executive Director Christine Owens.

Under the proposed legislation, once a conditional offer of employment has been made, an employer would be permitted to ask about the applicant’s criminal record and revoke the offer based on the results of a criminal background check. The proposed law includes exceptions for “sensitive positions,” including law enforcement and national security positions.

NELP is advocating that the new OPM policy make explicit that federal agencies should abide by 2012 EEOC guidelines which require employers to take into account the age of the offense, the nature of the offense and whether the nature of the offense is directly related to the job; and to conduct an individualized assessment providing the candidate an opportunity to demonstrate why he or she should not be excluded from consideration.

While the ban-the-box movement has been gaining ground, it still has many critics. Banning the box unfairly places a burden on employers, said Mike Coffey, president of Imperative Information Group, a national background screening company based in Fort Worth, Texas.

“Ban-the-box advocates are winning the rhetorical battle by falsely suggesting that employers’ criminal history inquiries are merely check boxes without any opportunity to provide offense details and that employers, when they see a checked box, routinely eliminate the candidate without any additional consideration,” he said. “The allegation is that employers view a 10-year-old shoplifting conviction the same as a 2-year-old sexual assault conviction. If an employer isn’t going to hire someone because of the risk associated with past conduct, the level of charm a candidate brings to the interview should not and typically will not change the ultimate outcome.”

Banning the box only delays the decision to eliminate a candidate from employment consideration, Coffey said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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