Across the United States, approximately 100 cities and counties have adopted “ban the box” laws, making it illegal for an employer to request an applicant’s conviction history at an early stage in the hiring process. There are currently 19 states that have adopted ban the box policies for public employees: California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oregon (2015), Rhode Island (2013), Vermont (2015), and Virginia (2015). Seven of those states have removed the conviction history question on job applications for private employers as well: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island.
As shown by the dates of adoption noted above, this is a recent phenomenon. Prior to 2010, only Hawaii and Minnesota had such a law on the books. Six states added ban the box laws in 2015 alone, with multiple states considering doing so. President Obama has also directed the Office of Personnel Management to take action where it can to modify its rules to delay inquiries into criminal history until later in the hiring process, while federal legislation is also being considered that would prohibit federal agencies and contractors from asking about a job applicant’s criminal history until a condition offer of employment is received.
Supporters argue that employer’s use of background checks excludes many applicants from jobs solely based on their conviction history, and also contributes to high rates of recidivism because of those barriers in finding employment. The Equal Employment Opportunity Commission (EEOC) also has weighed in on the matter, recommending that questions regarding criminal history be removed from job applications. The EEOC has taken the position that criminal history questions can disproportionately impact minority groups, and that employers must be able to demonstrate how the conviction record is directly related to the job in question. The EEOC also requires that applicants be individually assessed.
In addressing this issue, some companies have chosen to add provisions in their application instructing applicants not to answer the criminal conviction record question if they are from certain states/cities/counties. Other companies, such as Target and Koch Industries, have chosen to remove the question entirely from the job application.
In determining how you should proceed, you should evaluate the scope of your business, the location of the job, and the potential residence of applicants. If the job is located within a jurisdiction that bans the box, or possibly if the applicant resides in a ban the box jurisdiction, you need to evaluate how best to address this issue — whether removing the question entirely or adding specific instructions on when not to respond.
End users of contingent workers probably have already addressed this issue based on a consideration of the factors noted above. Staffing firms, meanwhile, have to address this issue regarding their own practices, but also need to look at what, if any, restrictions their clients are placing regarding the conviction record of the contingent workers they are supplying. If a client is requiring you to utilize criteria (i.e., conviction record factors) that would violate the law, a claim will likely be brought against both of you. There are many nuances to this issue and consultation with employment counsel is recommended.
