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The recent spread of ban-the-box laws is changing the way potential employers screen applicants.
These laws generally forbid employers from asking job candidates about their criminal record at the outset of the hiring process.
“It’s been a very successful movement. It’s been bipartisan,” National Employment Law Project Program Director Maurice Emsellem told Bloomberg BNA March 15. “It’s about de-stigmatizing people” so “people with records are not locked out of the labor market.” Emsellem said one in three adults in the U.S. has a criminal record.
“Ban the box has had real legs” in getting “that box off the initial application,” James Reidy, a partner at Sheehan Phinney Bass & Green in Manchester, N.H., said. He spoke March 14 at a conference hosted by the Society for Human Resource Management. “Currently, 24 states have some form of ban the box,” Reidy said. Sixteen counties and cities do, too, he said, and Massachusetts is considering banning the disclosure of first offenses.
Ninety-two percent of employers perform background checks on at least some of their employees, Reidy said. In some instances, the law may require an employer to do a criminal background check, such as when hiring a child care worker or worker who needs a security clearance.
For a thorough search, “you want to know where they lived, and you want to go back as far as possible,” Reidy said. Many people think an employer can’t search records more than seven years old, but in fact an employer can go back as far as it wants. An employer also may use unsealed juvenile records unless state law prohibits it, he said.
The most common practice is for an employer to select a final candidate and make a job offer contingent on an acceptable criminal background check, Reidy said.
When an employer hires an outside contractor to perform its background searches, the contractor must comply with the Fair Credit Reporting Act, and the employer can be liable for the contractor’s “missteps,” Reidy said. Employers should beware of hold harmless clauses in search company contracts and either negotiate that provision “or get another vendor,” he advised. Even when an employer does its own background searches, it’s a good idea to follow the FCRA because many state laws mimic it, Reidy said.
The Fair Credit Reporting Act requires an employer to obtain an applicant’s consent to perform the criminal record check. If an employer decides not to hire an applicant because of a background check, the employer must provide a copy of the record and give the applicant an opportunity to review and rebut the record, Reidy said.
An employer must have a neutral process for considering the criminal record. It should focus on convictions rather than arrests unless the arrest is still relevant, Reidy said. The employer should take into account the nature and gravity of an offense, its relationship to the type of job being sought, and the amount of time that has passed.
If an applicant tells a prospective employer in the initial interview that he has a criminal background, “they’ve opened the door,” so you “can talk about it,” Reidy said. He suggested thanking the applicant for disclosing the information and telling him it won’t be considered until later in the hiring process. The employer should note the admission in the file without listing it as a disqualifier. An employer probably can disqualify a person who lied when asked about criminal convictions, Reidy said.
Philadelphia has a ban-the-box law. Ryan Hancock, an employment counsel at Willig, Williams & Davidson in Philadelphia, discussed Philadelphia’s ordinance with Bloomberg BNA March 15.
“The purpose of the statute is to give people a fair chance at hiring,” Hancock said. During the recession, “when the job market shrank, any sort of criminal record became a mark” that caused potential employers “to throw in the trash can” applications from people with criminal histories.
“It’s wrong. It generally has a disparate impact on populations—mostly African American and Latino—that have been overly arrested and convicted and incarcerated at higher rates,” Hancock said. “Literally, people were getting rejected for a warehouse sweeping job for a conviction that happened 15 years ago. That’s ridiculous.”
Under the Philadelphia law, an employer can ask about criminal history and “run a background screen” only after making a conditional job offer, Hancock said. An employer must consider the duties of the job in question, the applicant’s job history and character references, the type of offense and the length of time since it occurred. An employer can consider only convictions, not mere arrests. The law allows an employer to reject a candidate “only if the employer concludes the person would be a risk to the business or other people.”
Some employers may worry that hiring a person with a criminal record could make them liable if the person breaks the law, but Hancock said adhering to these procedures could protect an employer from a negligent hiring lawsuit. “Following the law is the absence of negligence,” he said.
Hancock said “most employers comply” with Philadelphia’s ban-the-box law. Often the city will send errant employers a letter explaining the law. “If we can do it through a letter, that’s great,” Hancock said. Most lawyers “would rather the employer do the right thing” so they don’t have to sue.
Hancock said recent social science data “shows that once somebody has been crime free for a while,” a criminal history is “not an indicator” of future criminal behavior.
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