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Sep 12, 2014

Cue the Western music….

A lot of employers are nervous about a new villain riding into town called “Ban the Box.” It refers a movement that has been successfully convincing legislators to force employers to remove the box on job applications that asks applicants the question “Have you been convicted of crime?

There has been a real showdown between advocates and opponents of Ban the Box, oftentimes with employers caught in the middle.

So what are the pros and cons of Ban the Box, and how do organizations avoid having things turn ugly?

The Good

Ban the Box does not affect an employer’s ability to obtain information about an applicant’s criminal history; it only changes when in the hiring process such information can be revealed.

Proponents of Ban the Box point to the statistic that one in four adults have some type of criminal record. An employer’s blanket exclusion policy can have negative impacts on thousands of ex-offenders who are attempting to re-enter society as productive citizens.

Allowing an applicant the opportunity to successfully fill out an application and come in for an interview where he/she can explain the circumstances of the offense, as well as any attempts at rehabilitation can prove to be a win-win situation for both applicants and employers.

Moving from a corporate exclusion policy to a policy that looks at applicants on an individual basis allows hiring managers the freedom to consider the nature of the offense, how much time has passed, and how the criminal record pertains to the specific job description.

The Bad

Enter the bad guy. Unfortunately, when it comes to legislation nothing is ever easy. If allowed to go awry, Ban the Box can wreck havoc with an organization’s hiring process.

The unfortunate trend in Ban the Box legislation is leading to:

  • A more complex hiring process — Unfortunately Ban the Box legislation does a lot more than ask employers to get rid of a box on an application. Several states now require employers to post and in some cases supply applicants with notices. Other states require some form of “job-related screening test” that requires employers to show a correlation between the crime and the relationship to the job. Additional states limit what criminal information is available for employers to use as a part of the hiring process.
  • Unnecessary delays in the hiring process — In the business world time is money. Forcing an employer to have an extended hiring process, when clearly it is not appropriate to have an individual with a conviction, can put an unnecessary burden on a company. This is particularly true with small businesses that rely on the ability to place people quickly. For example, Ban the Box legislation would be a huge problem for a small cleaning service that does not have extra money to spend on multiple interviews and background screening, just to find out (after a conditional job offer )that an applicant has a history of burglary charges and can clearly not be placed in a position of trust.
  • Multiple and overlapping laws – There are over 60 cities and counties as well as 12 states that have passed some type of Ban the Box legislation. Unfortunately for employers, none have passed exactly the same legislation. This can lead to a huge headache if you have offices in multiple locations and are forced to develop different practices to accommodate the specific legislation for each individual location. Furthermore, the legislation often overlaps and occasionally contradicts previous requirements from Fair Credit Reporting Act (FCRA) legislation, EEOC guidelines, and certain state laws.

The Ugly (and how to avoid it)

The ugly consequence of this type of legislation is that some employers have thrown up their hand in defeat and are opting out of conducting criminal background checks on their potential employees. This leads to the next ugly fact that just because this legislation has passed does not mean negligent hiring lawsuits have gone away.

Our clients and employees trust us to do our due diligence to keep them safe from individuals that may cause them harm. Our reputation depends on our ability to do just that.

So how can we avoid an ugly situation?

  • Alter, but by no means discontinue, when you ask about an individual’s criminal history
  • In instances where an applicant does have a criminal record, ask yourself three important questions: the nature of the offense, how long ago it occurred, and how it pertains to the job.
  • Stay abreast of local legislation and encourage lawmakers to pass sensible legislation that does not restrict an employer’s need to know.
  • Consult your legal counsel as to how to best apply Ban the Box legislation to your hiring process

Until we meet again, safe hiring and happy trails!

Note: None of the information contained herein should be construed as legal advice. You should consult your attorney or legal department if you want assurance that this information, and our interpretation of it, is appropriate to your particular situation.