Jul 17, 2014

Ban the box has gone viral.

And while the removal of this little check box has potentially made life easier for job seekers with a criminal past, it has created much confusion and frustration for employers.

If you haven’t been in the loop, “ban the box” is the catchy phrase that refers to removal of the check box on a job application asking whether a candidate has been convicted of a crime. Ban the box shows no signs of slowing down, and it’s creating new headaches, not to mention real risks, for employers across the country.

Identifying the problem

Here’s the main problem: Ban the box is a slogan. It’s a cause. It’s championed by groups with a worthy goal, but the name is deceiving.

Ban the box is almost never just about the job application. Supporters claim that ban the box is needed to help ex-offenders get back into the workforce, but in reality, the scope of most of these laws goes well beyond the check box on the job application.

Ban the box has become a platform for enacting all sorts of restrictions on employers, raising the stakes for potential litigation, fines, and penalties.

Bills are given names that suggest they will solve all sorts of unemployment woes, using phrases like “Right to Work,” or “Equal Employment for All,” or “Fair Chance.” But in reality, these laws throw up barriers to hiring, complicating the process for employers.

Instead of paving the way for restored citizens, they restrict information that is otherwise lawfully used by employers to make important hiring decisions.

Hiding in the Box

Most ban the box ordinances do much more than just ban a check box.

Most of these laws contain more requirements like additional notice requirements, job-related screening tests similar to those already covered by the EEOC guidance, and limits on the scope or type of criminal record that can be considered.

No two versions of ban the box are the same, and they often conflict or overlap with existing anti-discrimination laws, the Fair Credit Reporting Act (FCRA), and other laws requiring or relating to background screening. Given all of the different versions of ban the box, it’s no wonder that there’s so much confusion.

Factors to watch out for

Here are a few of the “hidden” factors to watch out for in ban the box legislation:

  • Type of employer/employee relationship: Statutes and ordinances can vary on whether ban the box applies to job candidates of public employers, contractors of public entities, or employees or independent contractors of private employers. Bills that apply broadly to public and private employers can have a devastating impact on small businesses, often creating a new cause of action for employers to be sued as well as racking up statutory fines and damages.
  • Job related screening test: Statutes and ordinances often include language establishing a test for employers that must be established before asking about criminal history. These tests may include some variation of the EEOC’s “Green” factors, delineating factors such as the nature and type of offense, time passed since the conviction, and nature of the job sought or held. Some use terms like “relationship to the job” or “rational relationship.” Standards may be different from established laws and create standards that differ from federal guidance.
  • Limitations on arrest or specific types of criminal records: Another trend with ban the box is the inclusion of limitations on the types of records employers can consider in a specific jurisdiction. Again, these limitations may conflict with FCRA requirements, or existing laws that allow or restrict information used in the hiring process. They may also conflict with state laws prohibiting the hire of ex-offenders for certain regulated jobs, like banking or health care.
  • Notification of Denial and copy of record: Some ban the box laws and ordinances are calling for notification of the applicant when criminal information is being used, and often requiring that the employer provide the applicant with a copy of the record. This requirement is a duplication of the adverse action requirement that already exists as a protection under the FCRA. Other jurisdictions require the inclusion of an individualized assessment, which may be similar to the suggested process in the EEOC Guidance.

The impact on employers

In an already challenging economy, ban the box adds more complexity to hiring in the United States.

Employers now have to comply with a dizzying number of variations on banning the box, not only from state to state, but also city to city and county to county.  Companies doing business in multiple jurisdictions now have to consider the law and policy of each location, possibly having different processes depending on where they’re located.

This also means that employers are being forced to move through the hiring process with insufficient information, even when a criminal past would clearly make a candidate ineligible (based on the nature of the job or a regulatory requirement).

In many jurisdictions, the laws create a private cause of action for violations, increasing the risk of litigation and the potential for hefty awards of damages. Some employers mistakenly believe that if they remove the check box from the application, they’re covered. Not so.

Other ways to accomplish the goal

I’m all for second chances. And while ban the box does not prevent an employer from doing a background check, one very real consequence is that employers may simply choose to do less screening out of fear of an unintended violation.

However, there are other ways to accomplish a positive result.

Alternative policy initiatives that will assist restored citizens (without punishing employers in the process) include tax credit programs for hiring ex-offenders, certificates of rehabilitation for qualified workers, and the expansion of expungement opportunities.

This was originally published on the EmployeeScreen IQ blogEmployeeScreen IQ is not a law firm, and the contents of this article are not intended to be a substitute for legal advice.