Ban the Box Laws
Most employers use background checks when considering an applicant for employment. Federal law does not prohibit employers from asking applicants about their criminal history or conducting a criminal background check as long as compliance requirements are met. However, many states and local jurisdictions have enacted prohibitions or restrictions on the use of criminal background checks for employment purposes. When an employer utilizes background checks for employment purposes, the employer must ensure compliance with the applicable federal, state, and local laws.
The state statutes and county and local ordinances that prohibit or restrict background checks for employment purposes are referred to as Ban the Box laws. In jurisdictions that have enacted Ban the Box laws, employers cannot ask applicants to disclose criminal history on the job application. In some jurisdictions Ban the Box laws further restrict employers from asking questions about criminal history including arrest records, convictions that have been sealed, dismissed, expunged or statutorily erased, or participation in a diversion program, until a later time in the hiring process, such as after a first interview with an applicant or a conditional offer of employment has been made.
Ban the Box laws are specific by state statutes and local city and county ordinances. Currently more than half the states and many cities and counties have enacted Ban the Box laws. Ban the Box coverage protects public sector employees and in many jurisdictions coverage has been extended to private sector employees. Ban the Box laws may impose different and/or additional employer obligations for disclosures, notices, and adverse action requirements in hiring processes than required by the federal Fair Credit Reporting Act (FCRA). Compliance to requirements at the appropriate governing level can pose a challenge for employers. It is imperative employers conduct due diligence for specific requirements for their jurisdictions.
Ban the Box laws seek to prevent employment hiring discrimination against persons with a criminal history. A hiring process should not be structured to disqualify an applicant before the applicant has the chance to qualify on his merit. The Ban the Box laws help provide an opportunity for those individuals to compete fairly in the job application process by an initial screening based on their qualifications and ability to perform the job, rather than a screening based on questions on the application. The applicant’s past criminal history should not serve to keep the applicant from a chance for qualifying for employment. Ban the Box requirements that eliminate any disclosure on the application form about an applicant’s criminal history and restrict inquiries about criminal history until a time further into the hiring process offer an applicant the opportunity to discuss his history with the employer. In theory this process provides the applicant a better chance for employment.
Negligent Hiring Risk
Background screenings of applicants are considered a business necessity for many employers in various types of business as a critical risk reduction measure against claims of negligent hiring. Negligent Hiring holds an employer responsible for the conduct of an employee if the employer failed to use due care in the hiring and retention of the employee.
Under a negligent hiring doctrine, employers have the duty of care to assess the nature of employment, the degree of risk that the employment poses to third parties, and to conduct reasonable background investigations to ascertain the applicant is competent and able to perform job duties.
A reasonable care doctrine holds the employer responsible to evaluate applicants and employees in light of known risks and foreseeable risks that may pose a threat to third parties. If the duty of care is breached by the employer and that breach was the cause of injuries to a third party, the employer may be liable for negligent hiring.
The Equal Employment Opportunity Commission (EEOC) and Ban the Box
The Equal Employment Opportunity Commission issued updated guidance in its 2012 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 regarding the use of arrest or conviction records in employment decisions.
Ban the Box laws expand this EEOC guidance for employers. As referenced by the Guidance, an employer, by not asking an applicant to disclose criminal history initially on the application form, would be more likely to objectively assess the relevance of an applicant’s conviction as it became known if the employer is already knowledgeable about the applicant’s qualifications and experience. Deferring inquiries to a later time such as the applicant interview allows an employer to evaluate an applicant’s basic qualifications.
Fair Chance Laws and Ban the Box
In some jurisdictions Ban the Box laws have requirements and restrictions beyond the application process. State and local Fair Chance laws have been enacted to regulate how criminal information is utilized in the hiring processes.
Seattle
Seattle’s Fair Chance Employment Ordinance restricts how employers can use conviction and arrest records during the hiring process and course of employment within City limits. Restrictions under Seattle’s Ordinance:
- Prohibit categorical exclusions in job ads (e.g., Does not allow statements like, “Felons need not apply.”)
- Limit criminal history questions on job applications and criminal background checks until after an employer conducts an initial screening to eliminate unqualified applicants.
- Require employers to have a legitimate business reason to deny a job based on a conviction record.
- Require an opportunity for an applicant or employee to explain or correct criminal history information.
Employers are required to consider certain factors to determine whether there is a legitimate business reason for rejecting an applicant or taking an adverse action against an employee due to criminal history, pending criminal charges, or conduct related to an arrest.
A legitimate business reason exists if the employer, after considering the following factors, believes in good faith that the criminal conduct underlying a conviction or charge will either:
- Have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held, or
- Harm or cause injury to people, property, or business assets.
The factors that the employer must consider are:
- The seriousness of the underlying criminal conviction or pending criminal charge;
- The number and types of convictions or pending criminal charges;
- The time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration;
- Any verifiable information provided by the individual related to his/her rehabilitation or good conduct;
- The specific duties and responsibilities of the position sought or held;
- The place and manner in which the position will be performed.
New York City
New York City has enacted the Fair Chance Act (FCA) that requires all public and private employers to wait until they offer an applicant a job before they ask about an applicant’s criminal conviction history or conduct a background check. An employer will evaluate the applicant using existing New York law that prohibits discrimination based upon criminal records. Under that law, employers have to consider, among other things:
- The specific duties and responsibilities of the job and the bearing, if any, of the person’s conviction history on his or her fitness or ability to perform them;
- How long ago the offense occurred, how serious it was and the person’s age at the time;
- The person’s evidence of good conduct, achievements and positive life changes; and
- The employer’s legitimate interest in protecting property, specific individuals, or the general public.
California
The California Fair Chance Act is considered one of the strongest ban the box laws in the country and requires most public and private sector employers to delay background checks and written and verbal inquiries about conviction history until after a candidate has been selected and offered the job.
After a conditional offer an employer can ask about the applicant’s conviction history and run a conviction background check. To revoke the job offer, the employer must follow certain steps:
- Consider the nature and age of any conviction and whether it is directly related to the job duties;
- Notify the applicant in writing of the employer’s intent to revoke the job offer (attaching a copy of the conviction background check report) and allow the applicant at least five business days to respond;
- Review any response from the applicant and again notify the applicant in writing if the employer ultimately decides not to hire him/her.
Takeaway
Employers will need to assess their screening policies for criminal background checks in light of EEOC guidance and, as applicable, state and local Ban the Box laws for use of criminal background checks. A policy that allows for individualized assessments provides opportunity for applicants to explain a conviction and takes into consideration the nature of the crime, the time elapsed, and the nature of the job before making employment determination may protect business interests and the rights of applicants. A policy that categorically rejects all applicants with criminal convictions from consideration for employment is discriminatory.