A growing number of states and cities have adopted new laws that restrict employers from asking for criminal history during the initial phase of the hiring process. Also known as “Ban the Box,” these laws prohibit employers from asking applicants to check a box on a job application indicating whether or not they have a criminal record.
What does this mean for employers? What steps should employers take to protect themselves?
Variations in the Law
“Ban the Box” was conceived so that employers would first consider the candidate’s qualifications without the stigma of a criminal history. While that’s the premise of this regulation, there are a number of variations in the states and cities that have passed these laws, including variations that affect which employers are covered.
For example, California’s “Ban the Box” regulation just went into effect on July 1. It is only applicable to employers with five or more California employees. Their new law prohibits employers from inquiring about previous convictions if “that inquiry has an ‘adverse impact’ on individuals on a basis protected by California's antidiscrimination law (e.g., gender, race, and national origin).”
Also recently passed, Vermont’s “Ban the Box” law allows employers to question applicants about their criminal records during the job interview or once the applicant has been deemed otherwise qualified for the position, but the applicant must be given the opportunity to explain their record.
The issue of criminal background checks goes beyond “Ban the Box.” Even states that have not passed “Ban the Box” laws may have other legal considerations, such as regulations that fall under the Equal Employment Opportunity Commission. For example, although Wisconsin does not technically have a “Ban the Box” law, it does regulate the questions that an employer is permitted to ask on a job application.
Steps Employers Should Take
It’s clear that employers have a number of legal considerations during the hiring process. Because there is not a “blanket” policy that satisfies the requirements of every jurisdiction, employers should consider the following:
• Assess whether the nature of the job requires an inquiry into criminal history.
• Put procedures in place for how hiring practices and criminal record inquiries will be handled.
• And most importantly, work closely with legal counsel to ensure full compliance with “Ban the Box” and other employment laws.
To reduce employment risks, many businesses pass the responsibility onto a staffing agency, such as Advantage Resourcing. By doing this, you can rely on staffing experts to guide you in a direction that aligns with the law. They recruit, screen, and hire the people you need and the contractors become employees of the staffing agency, not your company.
Bottom line, “Ban the Box” and other employment laws vary from state to state and, often, city to city. Make sure that your organization is guided by legal counsel who are well-versed in the laws in your area and for your type and size of organization.