Suppose you own, or are the President of Supercareful Employers, Inc (” Supercareful”). You have long had a policy of asking on your job applications whether your applicants have ever been convicted of a crime, and tell them to check either the “yes” or “no” box. You also have included in your application a warning that anyone who knowingly lies on their application can either be rejected for or terminated from employment with Supercareful. Let us now suppose that Andy Applicant checked “No”, but you ran a background check and found out that seven years ago he was convicted for drug possession. You reject him for the job, not, you argue, because of his criminal history, but because he lied on his application. Since you included language in your application that allows you to reject or terminate anyone who knowingly lies on their application, you may now do so, right? Depending on where you are employing people, not only might you not be allowed to do so, but you may also be subject to fines and/or lawsuits. Let’s take a look at how and why that is so.
“Ban the Box”. This phrase has all but become a mantra in many circles. What does it mean and how is it relevant to employers? Our example includes an employer who includes a question about criminal history with two check boxes. Legislation prohibiting this practice is known as “ban the box” legislation, referring to that check box. In those places with such legislation or seeking to pass such legislation, the proponents do not want employers to be able to ask applicants about criminal history on the application. Let’s talk a bit about where such legislation exists, why, and, then, finally let’s do what The Emplawyerologist usually aims to do: explore how it impacts employers on a day-to-day level.
Congress introduced a bill for federal “ban the box” legislation last year. Minnesota was the first state to pass such a law on May 11, 2009. New Jersey (my home state) just introduced a similar bill a few weeks ago. Statewide “Ban the Box” legislation is currently in effect in Massachusetts, California, Colorado, Connecticut, New Mexico, Hawaii and Rhode Island. Many localities, perhaps lacking the patience to wait for their state or federal government, have passed their own local ordinances. Among the many cities and counties are Philadelphia, Pittsburgh, Boston, Atlantic City, NJ, Newark, NJ, San Francisco, Detroit, Michigan. In all, at least 43 cities and/or counties have passed “Ban the Box” legislation. If you employ people in those states or localities you may be limited in how and when you can inquire about an applicant’s criminal history
Why do I say you “may” be limited in your ability to inquire about an applicant’s criminal history? Laws may vary somewhat between states and localities. In some states, such as California, Colorado, Connecticut and Minnesota the “ban the box” law applies only to state employment. In many of the localities that have passed “ban the box” legislation, the law applies to both public and private employment. In other words, employers need to be aware of whether the states and localities in which they are employing people have “ban the box” laws. If so, the next inquiry is whether the employer is a state or local agency (or in some cases, has contracts with state or local agencies). Employers will then need to ascertain if state and/or local laws apply to public employers, private employers or both.
Does the fact that a state or locality has a “ban the box” law mean that you can never inquire about an applicant’s criminal history? The answer is a resounding “NO!” Ban the Box laws generally prohibit asking about criminal history at the initial application phase. Therefore, employers in states or localities with Ban the Box laws cannot ask about criminal history on a job application. Ban the Box states and localities prohibit this practice, generally, to ensure that applicants are at least “pre-qualified” before asking about criminal history. Proponents want employers to speak with applicants and discuss qualifications first. Therefore, most Ban the Box laws will postpone the employer’s ability to inquire about criminal history either until it conducts an initial interview (this is the EEOC’s position as well) or extends a conditional job offer. As a result, applicants who never reach either stage will not be the subject of such inquiries.
Before I provide a list of do’s and don’ts for employers there is one more important point I want to emphasize: Ban the Box legislation is usually accompanied by laws that limit how and when employers may conduct and use information from background checks to make hiring decisions. Some states essentially mirror the EEOC position and guidelines. (Click here and here for a review). Some, such as Massachusetts, are actually more stringent. As such, the term “Ban the Box Legislation” is a bit of a misnomer to the extent that those using the term are also referring to this type of legislation. One more point: the legislation applies to the state/locality in which the applicant is or would be employed, not where s/he resides.
Suppose you are an employer in a state and/or locality with a “ban the box” law that applies to you. What should you do? While the answer will largely depend on your application process, here are at least a few “Do’s and Don’ts” that should be of some help:
- DON’T: Include questions about criminal history on your job application if you employ people in a state and/or locality with Ban the Box legislation;
- DO: Strongly consider revising your job applications if they include such a question and you employ people in Ban the Box states or localities;
- DO: Include clear exclusions for certain states or localities if you also employ in non-Ban the Box States or localities (e.g. applicants for Massachusetts employment do not answer).
- DON’T: Ask applicants about their criminal history over the phone or prior to pre-qualifying them for the job.
- DO: Check the laws in the state(s) and localities where you are employing people and, of course, consult either with in-house counsel or competent, local employment counsel to ensure that you are in compliance.
- DO: If you employ people in places without a Ban the Box Law that applies to you, keep an eye out in case the bill in Congress passes, as that law, if passed, will apply nationwide.
Next week we will move on and delve into pre-employment aptitude and personality tests , so join us at the same time, same station next week!
Are you in the staffing industry? Do you use staffing agencies to meet your staffing requirements? If so, click here to read my post about “temps” rights under the FMLA on The Staffing Stream , a blog by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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