What is happening with Ban the Box.

It has been a little over 6 months since we published our first edition of the Nationwide Ban the Box Interactive Map educating the reader on the myriad of laws pertaining to ban the box / fair chance acts laws being implemented across the United States. At the time 33 states and over 150 counties and cities had implemented some form of ban the box law (removing question on application asking about previous criminal convictions, and delaying until a conditional job offer has been made).

Since the last edition there has been numerous jurisdictions that have passed ban the box laws, even educational institutions (Duke University) have jumped on the band wagon. The following ban the box laws have been passed since our first edition was published:

09/2018 – City of New Orleans, LA passed ban the box law that would affect all city applicants and contractors that provide services to the city. The ordinance bars the city and its contractors from requesting information on job applicants’ criminal history on initial employment applications and requires that criminal background checks be conducted only after an applicant has been given an initial interview.

10/2018 – State of Michigan Governor Rick Snyder placed a ban on state applicants from asking about previous criminal convictions. While a criminal history review could still happen later in the hiring process, state departments will not be able to use criminal history as an initial screen for applicants.

11/2018 – Duke University joined State University of New York and the University of California systems by no longer asking about previous criminal convictions on the applicant for employment. The new law will require the college to take a case by case approach when reviewing criminal convictions to determine suitability for employment.

12/2018 – Westchester County, NY on December 3rd the Westchester County Board of Legislators passed the “Fair Chance to Work” law. The law will eliminate questions regarding previous criminal convictions, and delay such inquiries until the first interview (also allows for background screening after the initial application). Board Vice Chair Alfreda Williams explains “The point of this legislation is to give job seekers a chance to establish a dialogue with prospective employers, not to have any dialogue cut off before it can begin,”

01/2019 – City of South Fulton, GA will no longer ask on an employment application about previous criminal convictions. South Fulton joins Atlanta, Albany, Augusta, and Columbus as the only cities to have implemented ban the box laws.

01/2019 – State of Virginia passes ban the box law for all public employment. It would bar state agencies and localities from including on an employment application a question about whether the prospective employee has ever been arrested, charged with or convicted of a crime, with certain exceptions.

We will be updating our interactive map to reflect these new laws.

Is Ban the Box Working?

It has been roughly 20 years since the first ban the box law was passed in Hawaii in the summer of 1998, a decade later Minnesota jump on board and since then it’s been spreading like wildfire!!

Majority of ban the box laws affect public sector employers (state, county, city, and entity contractors) who can no longer discriminate again a job applicant for simply having a criminal past, instead looking at the actual conviction and determine if it’s going to cause undue hardship on the employer (otherwise known as an “individualized assessment”).  Not only public sector employers must comply, but now majority of ban the box laws pertain to private employers (in some cases it affects employers with 5 or more employees).

Ban the box has caused a predicament for human resource professionals.  HR now must analyze previous convictions of ex-offenders and determine if they can employ them, while at the same time keeping their workforce safe and avoid any claims of negligent hiring.  This is a “balancing act” for businesses, but is achievable if they align themselves with competent and compliant trust advisors like a nationwide consumer reporting agency and employment law attorneys.

Majority of ban the box laws and fair chance act initiatives follow the Equal Employment Opportunity Commission (EEOC) 2012 guidance on how employers should use convictions as part of the hiring process.  Specifically, looking at three areas otherwise known as the “Green Factors”, which stem from a court case (Green v. Missouri Pacific Railroad) in which a railroad used a blanket exclusion policy that prohibited employment for anyone with a criminal history that included anything worse than a minor traffic offense.

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense, conduct and/or completion of the sentence
  • The nature of the job held or sought

Employers that operate in numerous jurisdictions throughout the country would be best served to implement a consistent across the board ban the box policy.  Where any questions pertaining to previous criminal convictions is removed from the job application, and delayed until the first interview or a conditional job offer is extended.  Additionally, if an employer is going to take adverse action based on the results of the employment background check they must conduct an individualized assessment.

According to Stephen Woods, an attorney in the Greenville, S.C., office of Ogletree Deakins “For employers that want one approach across all states and localities, the most conservative approach is to wait until after a conditional offer of employment has been made to ask about criminal convictions, require review of the background-check disclosures or completion of the background-check authorization, and run a background check,” Woods said. However, only about 35 percent of the statutes are that restrictive, he added. “The other 65 percent of the states and localities with ban-the-box restrictions typically allow inquiries and background checks earlier—after a first interview, for example.”

In the end ban the box is doing more good than harm, but not having a federal ban the box law and leaving up to the states can pose a great deal of risk for employers.

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