United States: New Year, New Ban-The-Box Laws

2017 is shaping up to be a year of continued growth for ban-the-box laws nationwide.  It's time for employers to get creative and develop strategies for hiring outside "the box."

What Are "Ban-The-Box" Laws?

Ban-the-box laws are aimed at delaying the point in time during the hiring process when you can ask applicants about their criminal history. The "box" being "banned" is the one an applicant must check on the initial application disclosing prior criminal history ("Have you ever been convicted of a crime?"). The underlying concern about these inquiries is that employers often automatically discard applications when the "yes" box is checked, adversely impacting certain groups of applicants in a discriminatory way.

Given the near-continual process of interviewing and hiring at businesses with high turnover, the hospitality industry is particularly affected by ban-the-box laws. As these new laws continue to spread and evolve, it is necessary to pay attention and re-strategize your hiring practices to keep up. Currently, 24 states and over 150 cities and counties have adopted statewide ban-the-box policies. Nine states now require private employers to remove conviction history questions from job applications altogether. While the first wave of these laws applied only to public employers, many are now being extended to private employers as well.

An increasing number of jurisdictions are adopting policies that take ban-the-box laws a step further, such as incorporating the stringent best practices of the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance on the use of arrest and conviction records in employment decisions, or adopting creative strategies such as targeted hiring. These "fair chance" laws require employers to consider the job-relatedness of a conviction, time passed, mitigating circumstances and rehabilitation evidence before making a hiring decision.

The Evolution Of Ban-The-Box Policies

Since the ban-the-box movement began in Hawaii in 1998, this civil rights initiative has become increasingly widespread. In 2016 alone, employers in Connecticut, Vermont, Austin (TX), and Los Angeles (CA) were forced to comply with ban-the-box laws. Here is a quick summary of the most recent of these laws.

Austin, Texas

The Austin City Council passed the Fair Chance Hiring Ordinance on March 24, 2016. This ordinance prohibits most employers from asking questions about or considering an applicant's criminal history until after it has extended a conditional offer of employment. The ordinance appears broad enough to arguably cover all types of workers, including temporary, seasonal, contract, and contingent workers, as well as those participating in a vocational or educational training program such as an apprenticeship.

In addition to the restriction on the timing of inquiries as to an applicant's criminal history, Austin employers also may not publish job information stating that criminal history automatically disqualifies a candidate from consideration. Employers also may not refuse to consider an applicant who submits an application without providing criminal history information. The ordinance further prohibits Austin employers from taking adverse action against an applicant based on criminal history unless the employer has a "good faith belief that the individual is unsuitable for the job based on an individualized assessment conducted by the employer."

Vermont

Vermont's ban-the-box law was passed in May 2016 and will go into effect July 1, 2017. The definition of "employee" under Vermont's law appears broad enough to arguably protect independent contractors. Further, Vermont's law requires employers to wait until an interview or until they have deemed the applicant qualified for the position before inquiring about the individual's criminal history.

However, Vermont employers can ask about criminal convictions on the employment application if: a federal or state law creates a mandatory or presumptive disqualification for the position based on a conviction for one or more types of criminal offenses; a federal or state law or regulation directs an employer not to employ a person who has been convicted of one or more types of criminal offenses; or the application questions are limited to the types of criminal offenses subject to the disqualification or obligation. Unlike other similar laws, Vermont's law does not address whether employers are prohibited from seeking an applicant's criminal history as part of a background records search or investigation.

Connecticut

Connecticut's ban-the-box law was passed in June 2016 and went into effect on January 1, 2017. It permits employers to make criminal background inquiries if they are obligated pursuant to federal or state law to do so for the position in question, or if a position requires a security, fidelity, or equivalent bond.

Contrary to other ban-the-box laws, Connecticut's law appears to permit the inquiry at any time during the hiring process as long as it is not on the initial employment application. Another notable difference is the Connecticut law appears to permit alternative types of inquiries into criminal history during the application process, such as criminal background checks conducted by a consumer reporting agency.

Los Angeles, California

Los Angeles very recently enacted its own Fair Chance Ordinance, which just took effect on January 22, 2017. The Los Angeles Ordinance is among the most restrictive in the country for private employers. It prohibits employers with ten or more employees from inquiring about an applicant's criminal history until after making a conditional offer of employment. But it doesn't stop there.

An employer doing business in Los Angeles may not withdraw a conditional offer of employment or otherwise refuse to employ an applicant based on criminal history until after completing a written assessment. The written assessment must "effectively link" the applicant's specific criminal history with risks inherent in the duties of the prospective job.

In accordance with EEOC guidance, an employer must also allow an applicant to complete the "Fair Chance Process" prior to taking any adverse action due to conviction history. This process requires employers to provide the applicant with a written notification of the proposed adverse action, a copy of the written assessment, and any other information supporting the proposed action. The applicant then has a chance to provide documentation regarding the accuracy of the criminal history report, which the employer must consider and use to complete another written assessment. If the employer still decides to move forward with the proposed adverse action, it must provide the applicant with notice and a copy of the final assessment.

How To Navigate Ban-The-Box Laws

So how should employers navigate the national maze of ban-the-box laws, particularly if operating in multiple cities or states with varying – and sometimes conflicting – ban-the-box laws? While many employers are concerned by the rate at which ban-the-box laws seem to be spreading, there are several potential solutions.

At a minimum, you should evaluate whether you need to revise your existing employment application to remove "the box" and any questions related to criminal history. Similarly, you should review tangential hiring documents, such as job advertisements, for parallel improper language.

Second, you should review your hiring process and procedures to ensure compliance with ban-the-box laws, including the timing of criminal background checks. This may also include a review of policies and procedures as they relate to hiring workers from staffing agencies to address any potential joint employer issues.

Third, you should consider providing training to employees who conduct job interviews or are involved in hiring decisions to ensure that they don't make premature inquiries into an applicant's criminal history. This may include preparing written objective guidelines for interview questions and hiring procedures.

Finally, it may be prudent to identify risks inherent in specific job duties so an applicant's specific criminal history can be "effectively linked" to those risks should that situation arise. This, too, may require written objective documentation memorializing potential links between crimes and specific job duties.

Conclusion

Overall, the national legislative trend continues to embrace banning the box. Given the cost and administrative headache of complying with different laws across the country, and the seemingly inevitable spread of these laws into your place of business, you might consider placing limits on obtaining and using criminal background information now, even if the law in your jurisdiction does not yet require it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions