Thirty-three states and 150 municipalities and counties have enacted “ban-the-box” laws precluding employers from including questions about criminal history on employment applications. In many of these states, ban-the-box statutes apply only to public employers, but 13 states (including some of the most highly populated, such as California and Illinois) and 18 municipalities and counties have applied them to most or all private employers as well. These laws have gained substantial bipartisan support, and more states and localities (and possibly the federal government) will likely enact ban-the-box statutes in the coming months and years. As a result, employers need to understand what these laws require—and what they do not.
What Is Required?
Ban-the-box laws prevent employers from including questions about a prospective employee's criminal history on their initial employment application. The idea is to prevent applicants from being automatically eliminated from consideration by employers early in the screening process. Delaying questions about criminal history increases the chances that employers will consider all relevant factors. Some factors include the amount of time that has passed since the applicant's conviction, whether the conviction was for a crime that could be related to the applicant's potential job duties, and whether there is evidence of mitigating circumstances or rehabilitation. The precise requirements of these laws vary, with some allowing employers to inquire about criminal history after an initial interview and others only permitting the inquiry after a conditional job offer has been extended.
What Is Not Required?
Ban-the-box statutes do not preclude employers from making inquiries about job applicants' criminal history or from deciding not to hire a candidate based on that candidate's criminal history, which could potentially result in the hiring of dangerous criminals. Instead, they delay background checks until later in the hiring process.
Considerations for Small Businesses
- Ban-the-box laws may require owners and managers of small businesses to spend more time during the hiring process than was required before the enactment of these laws. There is also the possibility that a small business owner could spend substantial time conducting one or more interviews with a job candidate who is ultimately deemed unsuitable because of the applicant's criminal history. For example, a jewelry store owner may not want to hire an applicant who has multiple recent robbery convictions. However, in light of the low unemployment rate and the related difficulty in finding well-qualified employees, the additional investment of time may pay off. A 40-year-old candidate who made a mistake at 18 years old but who has been a pillar in the community for decades may turn out to be an excellent employee.
- However, small businesses should not wholly neglect the background check process. Employers still need to conduct a thorough background check to avoid claims of negligent hiring if, for example, a new hire with a criminal history commits a similar crime at work, causing harm to other employees or to customers. If a business decides to hire a candidate with a criminal history, it is necessary to evaluate and document the nature of the applicant's crime, whether it is relevant to the type of work the applicant will be doing, when it was committed, and whether the applicant has been rehabilitated.
- If a small business decides not to hire an applicant based upon his or her criminal history, it is also essential to document the reasons for that decision. The Equal Employment Opportunity Commission (EEOC) provided guidance for employers to ensure that the consideration of arrest and conviction records in employment decisions does not violate the Civil Rights Act of 1964. Employers are prohibited under the Civil Rights Act from treating information about criminal history differently for applicants based upon their race or national origin or from adopting a neutral policy that has a disparate impact upon some individuals who are protected under the Civil Rights Act. According to EEOC guidance, an employer generally can comply with the Civil Rights Act by developing a targeted screening process that considers the nature of the crime, the time elapsed since the crime was committed, and the nature of the job, and an individualized assessment for any candidate identified by the screening process.
- Businesses that operate in more than one jurisdiction may need to comply with different requirements. For example, the state of Maryland does not currently have a ban-the-box statute; however, the city of Baltimore, Montgomery County, and Prince George's County have varying local ban-the-box requirements applicable to private employers.
We Can Help
If you are confused about your legal obligations in the hiring process, we can provide guidance to help ensure that your procedures comply with state and federal law. We can also help you develop a system for documenting the reasons underlying your hiring decisions. Please call us today to set up an appointment to discuss these or any other employment-related concerns.