August 8th, 2017 | Debbie Lamb, Sterling Talent Solutions

Ban-the-Box Legislation Continues to Grow Throughout The US

Ban-the-box legislation is continuing to grow throughout the United States. In April 2017, a bipartisan group of US Senators and Representatives introduced a federal Ban-the-Box legislation, Fair Chance Act (S. 842/H.R. 1905) and the REDEEM Act (S. 827/H.R. 1906). The bill would ensure job seekers who have a conviction record in their past are not unfairly shut out from federal employment because of a past criminal record, but rather considered on their qualifications for the position. The bill would require both the federal government and federal contractors to remove the conviction history question from their job applications and defer criminal history questions and background checks to the end of the hiring process.

Currently, 28 states and over 150 cities, municipalities or counties have banned the box for public and/or private employees. Until the bill is voted upon, states, cities and municipality Ban-the-Box laws continue to be in effect. The latest states to pass Ban-the-Box legislation include Indiana, Pennsylvania and Vermont.

What are Ban-the-Box Laws?

Ban the box laws, also referred to as “Fair Chance” or “Fair Opportunity” laws, prohibit employers from inquiring about prior criminal convictions until a later point in the hiring process. The Ban-the-Box laws make it illegal to include a check box on a job application asking about criminal history and prevents companies from asking about a job applicant’s criminal history on an application and in some cases, does not allow employers to ask about criminal convictions during an interview. The criminal history questions can be asked later in the hiring process, such as after an offer is made to the applicant and can be investigated, with the consent of the applicant or during a background screening check.

Newly Enacted Ban-the-Box Laws

Indiana

Indiana Senate Bill 312, a state-wide ban-the-box legislation which went into effect on July 1, 2017, bans counties, municipalities and townships from passing their own Ban-the-Box legislation. This includes the city of Indianapolis, which had previously enacted a Ban-the-Box law. Indiana Senate Bill 312  states that these localities may not prohibit employers from making an inquiry regarding criminal history information during an initial application for employment and criminal history may not be introduced against employers in a civil action based on the conduct of employees if:

  • The criminal history information does not bear a direct relationship to the facts underlying the civil action;
  • The records of the criminal case have been sealed;
  • The criminal conviction has been reversed, vacated, or expunged;
  • The employee or former employer has received a pardon for the criminal conviction; or
  • The arrest or charge did not result in a criminal conviction.

At the time of signing the bill, Indiana Governor, Eric Holcomb, announced he would sign an executive order banning the box for Indiana state jobs, removing questions about prior arrest and criminal history from job applications for public sector positions.

Pennsylvania

In contrast to Indiana’s Ban-the-Box law restrictions, Pennsylvania has enacted the  Fair Chance Hiring Policy, a new Ban-the-Box regulation for state agencies to remove criminal history questions from non-civil service employment applications in Pennsylvania. The Pennsylvania Office of Administration provides guidance on the ordinance and anticipates the policy also to be applied to civil service applicants by the end of 2017. The purpose of the new law is to “establish a Commonwealth-wide hiring policy that affords opportunities to individuals with past criminal records to be judged on their skills and qualifications and not solely on their criminal history, by removing the criminal history question from the non-civil service employment application.”

The Fair Chance Hiring Policy states that the “Secretary of the Office of Administration hereby establishes, and Commonwealth agencies shall implement and maintain, a fair-chance hiring policy that removes the criminal history question from the commonwealth’s employment application, based on the following:

  • Consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment is prohibited.
  • In making hiring decisions, the hiring entity shall consider the public interest of ensuring access to employment for individuals with criminal records.
  • This HR Policy shall not affect positions in which a criminal conviction makes an applicant ineligible under the law. This HR Policy also shall not apply to employment positions responsible for the safeguarding or security of people or property, law enforcement, or those involving contact with vulnerable populations. All departments, agencies, boards, commissions, and councils shall utilize the online job application system as required by ITPBUS008. No department, agency, board, commission, or council shall utilize its own job application form or questionnaire unless such form or questionnaire is approved by the Secretary of the Office of Administration.”

Vermont

Vermont’s Ban-the-Box law, H. 261, removes questions about criminal records from initial job applications for both state and private employment in Vermont. The updated legislation follows a 2015 Executive Order signed by the governor that limited Ban-the-Box policies for state jobs.

H. 261 “prohibits an employer from requesting criminal history record information, including arrests, convictions or sentences, on the initial employment application form, unless the individual is applying for a position for which state or federal law creates a mandatory or presumptive disqualification for employment, based on convictions for certain offenses, or the employer is subject to an obligation imposed by state or federal law not to employ an individual convicted of certain offenses.”

Employers may still question applicants about their prior criminal records during a job interview or once the applicant has been deemed otherwise qualified for the position. The prospective employee, if eligible for the position under state or federal law, must be given the opportunity to explain the criminal history record information and the circumstances regarding any convictions.

The Reality of Ban-the-Box Laws

Sterling Talent Solutions conducted a survey of more than 500 U.S.-based employers in 33 industries to ask about their use of background screening. The Sterling Talent Solutions’ Background Screening Trends & Best Practices Report 2017 provides a snapshot of the U.S. employment landscape and reveals key insights on screening practices, priorities and challenges. Sterling asked survey participants if they currently asked job applicants about criminal convictions on the application. 48% of the respondents to our survey stated that they ask on the application if a candidate has been convicted of a crime. We wanted to know more details on why they answered that way:

  • We only ask in states where the question is allowed prior to an employment offer.
  • We leave a voluntary explanation space on the application
  • We ask if they have been convicted of or have pleaded guilty to a specific list of offenses that could disqualify them from working with us. This list is determined by the entities that issue our licenses to operate.
  • We have to be careful what we ask due to Ban-the-Box laws.

With so many different Ban the Box laws across the country, compliance issues are created because the laws are not uniform or consistent from city to city or even state to state. In fact, some neighboring municipalities or metro areas will have different Ban the Box regulations. It is crucial for companies to be aware of the specific hiring regulations in their city, county and state. Even more important is that companies have to take action to comply with the regulations by talking to legal counsel and having a third party employee screening company that is up-to-date on the ban the box laws. To find more examples of state and city Ban the Box laws listen to the On Demand version of the Sterling Talent Solutions webinar “Ban the Box: Where Are We Now.”

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.