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Thinking Outside the Box: Can Private Employers Still Ask About Criminal Histories?


Last May, our NewsFlash discussed the United States Equal Opportunity Commission’s recently issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (the "Guidance"). The Guidance applies to employers that are subject to Title VII of the Civil Rights Act of 1964 (i.e., public employers and private employers with 15 or more employees) and focuses on employment discrimination based on race and national origin. According to the EEOC, "an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended." Among the items addressed in the Guidance are the distinction between an arrest and a conviction, and determining whether a criminal conduct exclusion is job related or consistent with business necessity.

A hot topic this year is the push to "ban the box." If you have not heard, "ban the box" refers to the legislative initiative of removing the check-box on job application forms that asks job applicants about their criminal history at the initial stages of the hiring process and delaying background checks until later stages of the hiring process. Believing that the "box" itself promotes an unfair hiring practice which has a disproportionate impact upon certain minorities, a minority of jurisdictions around the county have passed "ban the box" legislation that prohibits questions regarding criminal history and background checks until after the potential employer has determined an applicant has met the minimum job requirements of the open position. Many of the ban the box laws on the books in the jurisdictions listed are modeled off of the EEOC Guidance.

Ban the box legislation, however, is not a one size fits all discussion, and many misconceptions have arisen about the scope and application of these laws. Typically, for the most part, ban the box legislation only applies to "public employers," such as state, city and county governmental agencies. Presently, only twelve states (CA, CO, CT, DE, HI, IL, MD, MA, MN, NE, NM, and RI) have passed ban the box legislation - only four of which (HI, MA, MN and RI) have made their law applicable to private, non-governmental employers. Approximately sixty additional counties and cities nationwide have also adopted ban the box legislation. Again, although the vast majority of these counties and cities limit the ban the box restrictions to public employers - Newark, NJ and Philadelphia, PA have expanded their ban the box restrictions to include private employers as well. In fact, Philadelphia prohibits even asking about criminal background until after the first interview. Newark, in addition to limiting background inquiries until a conditional job offer is made, also limits the number of years in which an employer can look back into the applicant’s history. Most jurisdictions with ban the box laws exempt law enforcement and other positions with mandated background checks, such as school districts, and permit these employers to leave the criminal conviction box on an application. As with the EEOC Guidance, these exceptions indicate a general willingness for flexibility depending on the sensitivity of the position.

While the premise behind ban the box legislation is well intended, unless an employer is statutorily required to ban the question about previous criminal convictions from the job application (and most private employers are not banned at this time), careful consideration should be given before eliminating the question from the application. Why? Because most employers already understand that summarily dismissing an applicant from consideration simply because of a past criminal history may be legally problematic. Many employers are also very open to giving second chances to applicants who have made mistakes in the past but have maintained an impeccable record since that time. On the other end of the spectrum, if the nature of the crime, the time elapsed, and the nature of the job (coupled with an individualized assessment of the applicant) suggest that the applicant would not be an appropriate hire, then employers should be able to make this determination before they have incurred the time, expense and possible loss of other qualified candidates because they waited until the end of the hiring process to ask the question.

In closing, not all employers have to "ban the box" – but employers who operate in multiple jurisdictions should be careful to monitor this developing area of law. We recommend that employers first determine which, if any, of the current ban the box laws apply to your business. We also recommend that all employers review (or establish) a policy to follow with regard to conducting background checks and the criteria to follow for reviewing criminal background histories. Educating your employees on these policies is also crucial and if you have questions about your business, and the extent to which this issue may impact you, we are here to answer those questions or any other employment issue you are confronting.

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