Does Banning the Box Have You Scratching Your Head?

Job Application

Still dizzy about “ban-the-box”? 

The ban-the-box initiative is a growing trend among states, cities and counties to remove from hiring applications questions about prospective employees’ criminal histories. The goal is to eliminate barriers to employment that people with prior convictions face when applying to jobs.

The ban-the-box movement is gaining momentum throughout the nation. However, restrictions vary from state to state, and even within a state, and such inconsistencies can create confusion for employers.

Jennifer Mora, shareholder in Littler Mendelson P.C.’s Los Angeles office, and Ethan Balsam, an associate in Washington, D.C., examined variations in ban-the-box laws and potential problems for employers in a Dec. 7 webinar presentation sponsored by the law firm.

Comparing Apples and Oranges

There is a lack of conformity among different ban-the-box statutes and ordinances, and this raises problems for employers, especially those that operate in multiple jurisdictions.

Ban-the-box laws generally prescribe when an employer can ask applicants about their criminal history, but state, city and county laws diverge widely. Some laws dictate that you must wait until after the initial screening of applicants (Connecticut, Chicago, Illinois, Massachusetts, Minnesota, Seattle and Vermont).

Others specify that an employer may inquire into an applicant’s criminal history at the first interview (Buffalo and Rhode Island) or after the first interview (Montgomery County Maryland, New Jersey, Oregon, Prince George’s County Maryland, Rochester and San Francisco). 

And some jurisdictions allow inquiries into criminal history only after a conditional offer of employment has been made (Austin, Baltimore, Columbia, D.C., Hawaii, New York City, Philadelphia and Portland).

Besides the general restriction on when an employer may inquire into criminal history, some statutes and ordinances also include substantive restrictions. Again, these restrictions vary by jurisdiction, with Philadelphia and San Francisco imposing seven-year look back periods, and San Francisco and Portland putting certain criminal history off limits.

Other jurisdictions mandate the existence of a relationship between the conviction and the position desired in order for an employer to consider an applicant’s criminal record. 

Factors for Individualized Review

Most jurisdictions require an individualized review of applicants with criminal histories by considering specific factors. But the problem for employers is that “not all of the factors are the same,” Mora said. “What you are required to consider in Austin, Texas, is probably going to be very different than what you have to consider in the District of Columbia.”

On Nov. 30, the Los Angeles City Council voted to pass the Fair Chance Initiative. The mayor of Los Angeles signed the ban-the-box initiative on Dec. 9.

Contrary to other ban-the-box laws, the Los Angeles initiative implements the Equal Employment Opportunity Commission’s suggested factors to consider when making an individualized review of an applicant to determine whether the criminal history is job-related and consistent with business necessity. These factors are derived from the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

Multistate Applications

The attorneys also addressed potential problems for employers that wish to use the same employment application in multiple jurisdictions.

Some employers use jurisdictional notices on such multistate applications. These jurisdictional notices indicate that if an applicant is applying to a position within a certain jurisdiction, such as San Francisco, they are to skip questions regarding criminal history.

However, this solution to the multistate application problem doesn’t work for all jurisdictions, Mora warned. Philadelphia, New York City and D.C. reject the jurisdiction notice warnings.  According to their laws, questions about criminal history can’t appear on the application, even with a warning, so there must be a different application for applicants in these areas.

D.C. Ordinance Poses Unique Problems

Balsam noted two points of interest regarding the D.C. ban-the-box ordinance.

First, the agency that enforces the ordinance, the D.C. Office of Human Rights, applies the ordinance much more broadly than the language of the statute seems to require. While the D.C. ordinance applies to applicants, the D.C. Office of Human Rights will find a violation occurred even if an individual didn’t apply.

Balsam explains that this is because the agency finds that the “mere mention of the phrase criminal background check” or question regarding criminal history on an application can serve as a deterrent to potential applicants.

Second, there are significant consequences for the agency’s broad interpretation, Balsam noted. By allowing individuals who haven’t even applied for a position to file a complaint, “predatory applicants” have emerged.

For example, of the 417 complaints alleging violations of the D.C. ban-the-box ordinance filed within the first nine months, 95 addresses accounted for all of the complaints filed. Fifty-five complaints came from one address alone, resulting in $19,500 in settlements.

According to Balsam, “you are going to see this trend continue” until the D.C. Office of Human Rights modifies its interpretation of the statute.


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