"Ban the Box" Continues to Gain Momentum

For years employers have been asking about an applicant’s criminal history and not hiring someone who has one. Some employers used these questions because of the nature of their industry. For example, financial service institutions must comply with heightened background check regulations and schools and daycares cannot hire anyone convicted of certain crimes. Some employers used these questions because they would rather not take a chance on an applicant with a history of problematic behavior like violence, theft, or drug convictions. Finally, other employers used these questions to screen applications, concluding that they had a lot of qualified applicants and could afford to be choosy.

Given the recent tide of state and local laws banning such questions on applications, employers need to ask themselves “Can we ask a job applicant about criminal history?” As with so many legal questions, the answer is “it depends” on where you or your employees work. You need to determine whether you operate in a jurisdiction that precludes criminal history questions until you have reached certain points in the hiring process.

This movement—commonly referred to as “Ban the Box” —has a growing membership, with the following states currently banning the box in some form:

Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

If you operate in any of these states, check the law to determine: (1) whether the law applies for both public and private employers; (2) whether it only applies to employers who meet a threshold number of employees; and (3) at what point in the hiring process you can ask about criminal history.

States, Cities, and Counties Have Passed Variations of “Ban the Box” Making It Difficult for Employers to Adopt Consistent Hiring Practices

Knowing what an employer can and cannot do in each jurisdiction has proved difficult because the restrictions lack consistency. What started out as an initiative to literally ban a box on employment applications asking whether an applicant had ever been convicted of a crime has morphed. Laws now place a variety of restrictions on employers, the two major ones being (1) an employer’s ability to consider and use criminal history information when making hiring decisions, and (2) when an employer can inquire about an applicant’s criminal history. To boot, the restrictions may be different for public and private employers.

First, regarding an employer’s consideration and use of criminal history information, some Ban the Box laws do not mention an employer’s restriction on how to use an applicant’s criminal history, while others require the employer to examine certain factors. New York City, for example, requires employers to consider eight specific factors when evaluating criminal history information during the application process. Even still, some jurisdictions, like San Francisco, ban the consideration of certain convictions completely for crimes that have been decriminalized since the original conviction.

Second, jurisdictions also restrict when employers can take certain actions, including (1) asking about an applicant’s criminal history, (2) providing disclosures and requiring an applicant to fill out a background check authorization form, and (3) conducting the actual background check. Although jurisdictions restrict these actions until different steps in the hiring process, they typically adopt one of four approaches, permitting the inquiry:

• after a candidate is deemed qualified,
• after a candidate is selected for an interview,
• during or after an interview, or
• after a conditional employment offer is made.

The variations between laws and ordinances make it difficult for employers to have consistent practices across jurisdictions. To deal with this issue, employers can adopt the most conservative approach in all states in which they do business. Depending on the employer’s footprint, that could require employers to wait until after a conditional offer of employment to ask about criminal convictions, require an applicant to authorize a background check, and actually run that check, which could slow down the hiring process. Alternatively, employers can review the state laws and any city and county ordinances to determine what it cannot do and when. This latter approach is much more time and labor intensive but will allow the employer to learn of any prior convictions earlier in the application process (which could save time).

The Most Recent State to Ban the Box: Colorado

Colorado is the most recent state to ban the box for private and public employers. Beginning as early as September 1, 2019, Colorado employers will be prohibited from asking prospective workers about their criminal history on job applications. The Colorado law specifically forbids public and private employers from:

• Advertising that a person with a criminal history may not apply for a position;
• Placing a statement in an employment application that a person with a criminal history may not apply for a position; and
• Inquiring about an applicant’s criminal history on an initial job application.

Fortunately, these restrictions do not apply when: (1) the law prohibits an individual with a certain criminal history from holding a particular job; (2) the employer is participating in a program to encourage employment of people with criminal histories; or (3) the employer is legally required to conduct a criminal history record check for the specific job.

The law takes effect on September 1, 2019 for employers with eleven or more employees and on September 1, 2021 for all other employers. The Colorado Department of Labor and Employment (CDLE) will enforce the law and can issue warnings and orders of compliance for violations. If violations continue after warnings or orders, the CDLE may impose civil penalties. There is no private cause of action under the law, so job applicants cannot bring their own lawsuits.

Of importance, the law does not take away an employer’s ability to uncover whether a job applicant has a criminal history. Colorado employers are still allowed to run background checks on prospective workers at any time and can still ask about the applicant’s criminal history during the interview. The law instead focuses on giving a job applicant the opportunity to sit face to face with a prospective employer and explain his or her criminal history in person. With the law’s effective date quickly approaching, employers who operate in Colorado should check their job postings and applications to ensure they do not run afoul of this new law.

Takeaways

It does not appear that the movement is slowing down given the number of states, cities and counties that have passed Ban the Box laws in the past twenty years. To ensure they are in compliance, employers should periodically check to see if their jurisdiction has adopted a Ban the Box law. For employers in numerous jurisdictions with these laws, they should decide whether to take a jurisdiction-by-jurisdiction approach or a lowest common denominator approach. Either way, employers need to stay vigilant to make sure they are not running afoul of any state laws or local ordinances. A couple of resources to check your state or locality are the Society for Human Resource Management (https://www.shrm.org/resourcesandtools/legal-and-compliance/state-andlocal-updates/xperthr/pages/ban-the-box-laws-by-stateand-municipality-.aspx) and the National Employment Law Project (https://www.nelp.org/publication/ ban-the-box-fair-chance-hiring-state-and-local-guide/).

The original article, ""Ban the Box” Continues to Gain Momentum," first appeared in DRI: The Job Description on August 8, 2019.