By Thomas Cox | Fisher & Phillips LLP
firstname.lastname@example.org | @employeradvisor
For many job applicants, especially those with a criminal background, it is one of the most dreaded questions on a job application: “Have you been convicted of a criminal offense?” Check “the box” yes or no. Recently, there has been a movement to “ban the box” on employment applications and to delay any consideration of criminal history until a later stage in the hiring process. The “ban the box” movement has now gained national momentum.
President Obama recently directed federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective federal government employee applicants about their criminal histories on job applications. He noted that some 70 million Americans have some form of criminal record and also commented that the existence of a criminal background in many instances prevents many Americans from “getting their foot in the door” to get a job, even after having paid their debt to society.
But what about the other side of the pendulum – don’t potential employers have a responsibility to ensure that their employees are trustworthy and that its customers and employees are shielded from possible criminal activity by persons being considered for employment? How can human resources professionals and managers balance safety and business necessity in the wake of this movement? On the other hand, does “the box” have a disproportionate impact on certain protected categories of applicants, making it less likely for them to be hired?
The primary purpose of “ban the box” legislation is not to prevent employers from considering criminal background during the application process, but rather to delay when employers can ask candidates about their criminal history. This often involves waiting until after the initial application process has been completed and in many instances requires that the applicant be provided with an opportunity to provide other useful facts to consider within the context of information related to criminal background.
In some states, although “the box” is legal, these states limit the types of inquiries employers may make into the criminal history of applicants. For instance, in California, employers are prohibited from asking about expunged and other types of records. In New York, employers may not inquire about arrests or criminal accusations that are not currently pending, in addition to other limitations.
Currently, at least 19 states and more than 100 cities have “ban the box” laws preventing public employers from using “the box.” In addition, seven states, the District of Columbia and 12 cities and counties have passed “ban the box” legislation that applies to private employers. This list is growing. Finally, the EEOC has also offered guidance on the subject.
In order to comply with “ban the box” laws, a company should engage competent employment counsel to identify all applicable laws. Company policy should also be reviewed to ensure compliance with safe workplace laws and to avoid tort claims related to negligent hiring and retention. Employers might also want to consider waiting until a conditional offer is made before obtaining criminal background information. Likewise, companies may limit the use of criminal background information for certain job categories.
In summary, gone are the days when checking the box “yes” means the end of the road for an applicant with a criminal background. It looks like the “ban the box” movement is likely here to stay.