The other week, a large C2 client asked our HR staff to review its employment application. As a federal contractor, the client has employees in multiple states and for consistency prefers to utilize a single employment application for all its locations. When we revised the application to remove the question that asked applicants to “check the box” if they had ever been convicted of a crime, the client pushed back. As a federal contractor, many of its employees either operate in secure facilities or need security clearances. They were shocked that we would suggest removing that question. As we had to explain to our client, the landscape has evolved rapidly with respect to asking about applicants’ criminal histories.
A. The Current State of the Law
In 2012 a large U.S. beverage producer was ordered to pay $3.3 million and provide job offers and manager training to resolve a claim of race discrimination filed by the Equal Employment Opportunity Commission (EEOC). The EEOC found cause to believe that the criminal background check policy disproportionately discriminated against African American candidates. The EEOC determined that 300 candidates were excluded from permanent employment because under the company’s former policy, applicants who had been arrested pending prosecution were not eligible to be hired for a permanent position, even if they had never been convicted of an offense.
Compounding the EEOC’s position, an increasing number of cities and states have adopted a fair chance hiring policy known as colloquially as “ban the box.” Currently, about 25 states and over 150 cities have adopted “ban the box” policies barring criminal history questions from government employment applications. However, this policy does not just apply to the public sector. Currently, nine states require private employers to remove all conviction history questions from job applications, and that number is on the rise, with Vermont and Connecticut joining the list in 2017.
With dizzying amounts of variations in these laws, employers (especially those, like C2’s client, that operate in multiple states) must be proactive, as failure to comply can result in lawsuits and fines that can stretch into the hundreds of thousands of dollars.
B. What is Ban the Box?
In 1998 Hawaii passed the first “ban the box” law in the United States, prohibiting public and private employers from inquiring into an applicant’s criminal record until after a conditional offer of employment has been extended. The slogan “ban the box” derives from the question on employment applications inquiring about an applicant’s criminal history. This question is often seen in the form of a checkbox that candidates use to indicate if they have ever been convicted of a crime but often offers no opportunity for the candidate to provide additional details.
Since 1998, this movement has grown exponentially. State and local laws seek to remove conviction inquiries from job applications so that candidates are given a fair chance to compete for a position without the stigma of a criminal record. Removing “the box” from the initial application encourages employers to consider candidates based on merit, rather than discarding an application automatically due to a conviction without knowing the age of the offense or its relevancy to the position for which the candidate is applying. It is estimated that 70 to 100 million- or as many as one in three Americans- have some type of criminal record. Proponents of “ban the box” point to studies that show employment is a major contributing factor in reducing recidivism rates.
C. Example of a Recent Ban the Box Law
Effective January 22, 2017, the city of Los Angeles enacted the Fair Chance Initiative Ordinance, one of the most stringent ban the box laws in the country. The Fair Chance Initiative Ordinance affects all private employers with ten (10) or more employees in Los Angeles. This law not only prevents employers from asking a candidate about criminal history until a contingent offer letter has been sent; if an employer discovers a criminal history, it must perform a written assessment that effectively links the specific aspects of the criminal history with risks inherent in the job sought by the applicant. Various factors must be considered, including the gravity of the offense, time that has elapsed, nature of the offense, and nature of the position sought. Before an employer can take any adverse action, they must engage in the “Fair Chance Process” which involves providing the applicant with written notification of the adverse employment action as well as a copy of the written assessment and any other documentation supporting the adverse action. The applicant must be given five (5) business days to provide documentation correcting or mitigating their criminal history information. If documentation is provided the employer must conduct another written assessment and inform the applicant of their decision. The position must remain open during this time.
As part of this law, multi-state employers should either completely remove questions regarding criminal history from all employment applications or amend the application to say “candidates located in Los Angeles should not answer this question.” Starting July 1, 2017, fines associated with LA’s Fair Chance Initiative Ordinance range from $500 for the first violation up to $2000 for subsequent violations.
D. The EEOC’S Guidance on Applicants’ Criminal Records
Title VII of the Civil Rights Act prohibits discrimination based on race, color, religion, national origin, and sex. The EEOC has adopted the position that since minorities, specifically Hispanic and African-American males, are convicted of crimes at a higher rate than Caucasian males, an employer’s use of background checks in the hiring process may disproportionally disqualify those individuals for employment. The EEOC has released examples of best practices for employers who want to use applicants’ criminal history as part of the hiring process, which include the following:
- Employers should eliminate practices or policies that exclude people from employment based on criminal records;
- Employers should not consider an arrest record that did not lead to a conviction; and
- Employers should conduct an individualized analysis in utilizing conviction records in making employment decisions.
An individualized analysis should take into consideration factors such as age at the time of conviction, rehabilitation, facts and circumstances surrounding the offense and evidence that the individual performed similar work, post-conviction, without incidents of criminal conduct.
E. How can employers avoid potential Ban the Box pitfalls?
As more and more states adopt “ban the box” legislation employers should keep a close eye on the jurisdictions in which they do business. Employers can do the following to help ensure compliance:
- Determine which laws apply to your business;
- Revise and reprint employment applications if necessary;
- Review hiring policies and provide training to managers;
- Understand how to read background checks correctly;
- Document hiring decisions based on criminal history; and
- Stay up to date on any changes that may affect how/when you conduct criminal background checks.
It is imperative for employers to remember that each state and local law may contain different requirements, and failure to comply can be a costly mistake. C2 continues to monitor the proliferation of these laws to help ensure that our clients remain in full compliance.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.