To Ban or Not To Ban - From Volume 11 Issue 6 of CI Times

Apr 3

Does your organization have a check box on your hiring documents next to the question: Have You Ever Been Convicted of a Crime?

For many of us, this question and the “box” has been a staple in our hiring process and most of us are used to seeing it on every job application. In recent years it also appears on many background check forms. However, employers and job candidates are seeing this change rapidly in many cities and states across the country. And, to complicate matters more, these changes are not consistent from jurisdiction to jurisdiction. These changes are happening through state and local legislative measures and are commonly referred to as "Ban The Box" legislation. At the Federal level, the EEOC (Equal Employment Opportunity Commission) endorsed the removal of this question from early in the hiring process as best practices in its 2012 guidance for employment decisions.

It is estimated that more than 70 million US adults have a criminal history. Ban the box initiatives are an effort to increase the employability of anyone previously convicted of a crime, thus reducing recidivism rates. Sometimes referred to as anti-discrimination policies, these initiatives can also affect the chances of persons with a criminal history receiving housing, by applying requirements to fair housing standards.

But don't let the name fool you, even if you don't have a "box" to check on your hiring documents, these initiatives apply if you plan to ask a job candidate in any way about their past criminal activity, before a specific point in the hiring process. Like the legislation itself, that point also varies from jurisdiction to jurisdiction. Some jurisdictions have also incorporated hiring policies modeled after the EEOC guidance requiring an employer to demonstrate that the conviction record restrictions are directly related to the job and that applicants are individually assessed for the position. In New York the EEOC guidance is very similar to Article 23-A law requirements.

Variations among the various laws include –

Type of employer the law applies to (public and/or private).
Size of employer the law applies to (4 or more employees, 15 or more employees, all sizes of employer of a certain type, etc.).
Can always ask about criminal past at a certain point in the hiring process (after interview or after conditional job offer).
Documentation requirements of decisions made on criminal data in some jurisdictions.
Copy of background report supplied to the subject required in some jurisdictions.

Pros of Ban the Box Initiatives -

Allows applicants with a criminal history to get further in the hiring process.
The “box” discourages individuals with a criminal history from even applying.
Candidates are initially evaluated on job qualifications not past criminal activity.
Eliminates possible discriminatory hiring processes.
Employment is a significant factor in reducing recidivism.

Cons of Ban the Box Initiatives -

Allows applicants with a criminal history to get further in the hiring process.
The “box” discourages individuals with a criminal history from even applying.
Some versions conflict with federal and state laws.
Puts safety of the workplace and client protection as an afterthought.
Eliminates the discharge opportunity afforded when an applicant with a criminal history does not disclose the conviction which is later found.
Creates duplicate compliance efforts to comply with all hiring laws.
Eliminates a relied upon integrity test during the hiring process in regards to truthful disclosure on hiring documents.
Waste of time for human resource professionals and job applicants.

Some organizations, such as Target and Wal-Mart, have implemented "Ban The Box" throughout their organizations whether or not the business is in a jurisdiction with “Ban The Box” legislation To allow Commercial Investigations clients a choice, we have created a new version of our consent forms that do NOT ask criminal history questions. So, based upon the legal advice of your lawyer you can choose the best form to assist your hiring process as modified by any “Ban The Box” legislation that applies to you. Is this a phase or a here to stay initiative? Only time will tell.