In the past few years, there has been a "ban the box" movement growing steadily across the country and perhaps even in your state. Last November, President Obama issued an executive order directing federal agencies to ban the box, to prevent inquiries into criminal histories of potential government employees on job applications. Although many federal agencies had already taken steps to delay these inquiries until later in the hiring process, Obama directed the Office of Personnel Management to issue guidance to apply such measures to all government agencies.
Last April, Obama asked private employers to join his Fair Chance Business Pledge to break down employment barriers for applicants with criminal records in the private sector. Companies who agree to the pledge choose to voluntarily implement policies like "banning the box,” training human resources staff on making fair decisions regarding applicants with criminal records; ensuring internships and job training are available to individuals with criminal records; and using reliable background check providers to help ensure accuracy.
At this time, there is no federal law that prohibits all employers from asking prospective employees about criminal convictions, but nationwide over one hundred city and county municipalities have passed ban the box legislation to better ensure employers consider a job candidate’s qualifications first, without the stigma of a criminal record. Such legislation varies with regard to coverage, exceptions, and timing. It is important for employers to continue to be aware of all applicable legislation and regulations in their area.
Additionally, the Equal Employment Opportunity Commission (EEOC) has issued guidance entitled "Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964." In the guidance, the EEOC states that if an employer is to "establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." Employers are encouraged to review the guidance when developing hiring procedures.
Ban-the-box laws generally to do not prohibit an employer from performing a background check for criminal convictions on a post-offer, pre-employment basis. To better ensure compliance with the Federal Fair Credit Reporting Act and applicable state laws, employers may consider using an accredited background check agency to obtain the background report.
It is vitally important that employers review their employment applications to determine whether revisions are necessary to comply with applicable local and/or state “ban the box” legislation and the use of background checks. Other best practices include:
- Maintaining up-to-date job descriptions which may be used to better ensure candidates meet minimum skills, experience, education, and licenses needed for the job in question.
- Training all managers on hiring practices to ensure only lawful non-discriminatory inquiries
are made during the hiring process.
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