Ban the Box Laws: Is Your Company Compliant? - March 30, 2015
By: Julie Levinson Werner, Senior Counsel, Lowenstein Sandler LLP
The explosion of ban-the-box laws around the country is poised to become the employment law trend of 2015. Ban-the-box laws typically prohibit employers from inquiring about a candidate’s prior criminal convictions on a job application. Different laws require businesses either to wait until after they have conducted a first job interview or have extended a conditional job offer. With more than 60 states, cities, and/or counties enacting ban the box legislation with varying thresholds, varying requirements, and varying exceptions, compliance may be challenging to those employers even with the best of intentions.
Some cities like Washington D.C. prohibit employers from asking about a candidate’s prior criminal record until after a conditional job offer has been extended. Other jurisdictions, such as the State of New Jersey and the City of Philadelphia, allow employers to inquire about a candidate’s prior criminal history but require them to wait until after they have conducted an initial job interview. In Massachusetts, San Francisco and Seattle, before taking adverse action and declining to hire a candidate with a criminal record, employers must follow a process similar to the process under the Fair Credit Reporting Act. In those locations, before rejecting a candidate because of his or her criminal record, employers must provide the applicant with a pre-adverse action notice and a copy of the criminal history report. The employer also must give the applicant sufficient time to refute the results and/or submit any mitigating factors.
Even in jurisdictions without formal legislation, employers must be mindful of the EEOC’s Guidance on Arrests and Convictions. The EEOC’s Guidance encourages employers to engage in an eight-part individualized assessment of a candidate’s prior criminal record before disqualifying the applicant from employment. These factors include the facts and circumstances surrounding the offense, the individual’s age at the time of the conviction, rehabilitation efforts, any correlation between the conviction and the position sought, and character references. The EEOC’s goal is to help offset the disproportionate impact that consideration of an applicant’s criminal record may have on minorities.
In New York State, which does not have a formal ban-the-box law, consideration of these factors has been a requirement for many years. There, employers are prohibited from inquiring about arrests not yielding a criminal conviction and from discriminating against applicants with a conviction unless there is a direct relationship between the position sought and the person’s criminal offense.
In sum, the public policy of the ban-the-box laws focuses on providing a fair chance to applicants with prior criminal convictions. On the other end of the spectrum, employers must be proactive in their review of a candidate’s background to avoid claims of negligent hire, reputational harm, and injury to the workplace. To learn more about ban the box legislation and to see whether it impacts hiring in your location, watch our on-demand webinar.