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More cities and states are limiting criminal history inquiries in the hiring process
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Ban-the-box laws are popping up across the country, but opinions vary on whether such laws actually accomplish their objectives.
"Ban the box" refers to a grassroots effort to remove the check box on job applications that asks if a candidate has ever been convicted of a crime. Laws that limit criminal record inquiries are also referred to as "fair chance" laws.
Twenty-four states and more than 150 cities and counties have passed such a measure, according to the National Employment Law Project (NELP), a worker advocacy organization based in New York City.
The point of ban-the-box laws is to conduct a job interview first to see if someone is qualified and then do the background investigation and the analysis of whether a conviction is job-related, according to David Ritter, an attorney with Barnes & Thornburg in Chicago.
If the employer goes through the hiring process in that order, it's more likely that the candidate will know if the background check affected the outcome of the selection process, Ritter explained.
"Robust fair-chance employment laws ensure a fairer decision-making process by requiring employers to consider job-relatedness of a conviction, time passed, and mitigating circumstances or rehabilitation evidence," NELP said in a publication on its website.
[SHRM members-only toolkit: Conducting Background Investigations and Reference Checks]
Critics of ban-the-box laws, however, say that they don't work. Ban the box "doesn't help many ex-offenders, and actually decreases employment for black and Hispanic men who don't have criminal records," wrote Jennifer Doleac, an assistant professor of public policy and economics at the University of Virginia, in an article posted on the Brookings Institution website.
Without the box on the application, employers may be more likely to guess that black and Hispanic men have a criminal record, said Doleac, who has conducted research in this area.
Pamela Devata, an attorney with Seyfarth Shaw in Chicago, said that most employers had already removed the criminal history question from their job application form after the Equal Employment Opportunity Commission issued criminal history guidance in April 2012.
The state and local ban-the-box laws place additional restrictions on employers as to when they can ask about criminal records, what their job postings must or cannot say, and what analysis employers must undertake when considering taking adverse action based on a criminal record, Devata added.
Rod Fliegel, an attorney with Littler in San Francisco, said it is difficult when performing a statistical analysis to determine the causal relationship between ban the box and hiring, especially when considering how complex the hiring process can be. However, ban-the-box laws are sensitizing employers to the need to be judicious in the hiring process, he added.
"Most employers make hiring decisions based on good faith, and the ban-the-box laws do typically encourage employers to conduct an interview or go further in the application process before requesting criminal background information," said Jay Hux, an attorney with Fisher Phillips in Chicago.
Ban-the-box laws present challenges for employers because there are so many different laws, and there is some variation between them, Hux said.
As an example, he said, some apply only to public employers and others apply to private employers with a certain threshold level of employees.
In California, the statewide ban-the-box law applies only to public employers, but San Francisco's local ordinance applies to private employers with 20 or more workers. Effective Jan. 22, a Los Angeles ordinance will apply to private employers with 10 or more workers.
Some laws cover more than just when an employer can ask about criminal history, Devata said. "Some also provide what information employers must give to applicants in a pre-adverse action or adverse action letter and also have different time periods that employers must allow an applicant to respond and/or keep a job open before taking action."
Furthermore, Devata said, some ban-the-box laws contradict one another. "For example, in New York City, an employer cannot mention that it will [conduct] a background check or evaluate criminal history at any time before a conditional offer," she said. "Contrast this with Los Angeles and San Francisco that both require a specific posting indicating that criminal history will be reviewed and what that means."
For multijurisdictional employers, the biggest challenge is balancing the need for simplicity with the need to be compliant, according to Fliegel. Employers have to look at whether they want to accommodate the variations or align their hiring process with the most restrictive law, he said.
That's not a simple decision, he added, because the most restrictive laws also impose a lot of work on the employer.
Ritter noted that the general theme of ban-the-box laws is one of fairness. "Employers shouldn't think: 'OK, now we have to hire former criminals.' "
Hiring candidates with criminal backgrounds isn't permitted for some industries and occupations, and ban-the-box laws take that into account, he explained. The laws typically require employers to look first at a candidate's qualifications and then look to see if there is a disqualifying factor, such as a criminal conviction within a certain time frame that is relevant to the job, he said.
If a bank-teller candidate was convicted of embezzlement last year, it's likely that the candidate can legitimately be screened out. "But what if the candidate got into a bar fight 10 years ago?" Ritter asked. There is a dialogue and an analysis that the employer should go through to make the determination.
Know the Law
"The first step for employers is to assess where they do business and where they hire individuals and review the laws in those jurisdictions," Hux said. Once employers determine what laws affect them, they should review their employment application and hiring process and make any necessary changes, he added.
Employers may need to add specific language on the application, and they should also be aware of any notice requirements if they do deny employment based on background information, Hux explained.
Fliegel noted that employers should look beyond ban-the-box laws to other laws on background screening.
"It's a good idea to do a checkup for 2017 and make sure you're compliant with all relevant background laws."
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