United States: Ringing In 2018 With New Ban-The-Box Laws

Last Updated: January 10 2018
Article by Rod M. Fliegel and Molly M. Shah

Over the past few years, employers have come to expect new ban-the-box laws, and 2018 is no exception: one state law was amended and one new local law was enacted. In late December 2017, New Jersey expanded its previously-enacted ban-the-box law, and the City of Spokane, Washington enacted a new ban-the-box ordinance. While the New Jersey amendment became effective immediately, the portions of the Spokane ordinance dealing with private employers go into effect on June 14, 2018, but will not be enforced with penalties until January 1, 2019.

These changes mirror those being seen around the country. Though these changes are not as extensive as those recently enacted in California,1 they are still important changes and could require revisions to employers' application processes and documents. Covered employers should become familiar with these new laws and consider the action items set out below.

New Jersey's Amendments to Its Ban-The-Box Law

Effective December 20, 2017, New Jersey amended its ban-the-box law that went into effect in March 2015.2 These amendments added express prohibitions regarding expunged criminal records and clarified the types of job applications at issue in the March 2015 law.

When the New Jersey law went in effect in 2015, it prohibited many private employers from including questions about criminal history in job applications and during the "initial employment application process" (i.e., from the employer's first contact with the applicant, whether via application or other means, through when an employer has first interviewed the applicant, whether in person or by other means). Employers can still make a criminal history inquiry after the initial employment application process has concluded (i.e., post-interview).

Effective immediately, the amendments also prohibit private employers from asking about applicants' expunged criminal records on job applications or during the "initial employment application process." As with the initial law, employers can make such an inquiry after the initial employment application process has concluded (i.e., post-interview). The amendments also clarify that online job applications are included in the general prohibition against criminal history questions on job applications.

Spokane's New Ban-The-Box Ordinance

The City of Spokane also enacted its own ban-the-box ordinance at the end of December that governs when private employers can ask about and consider applicants' criminal histories. The provision of the ordinance dealing with private employers goes into effect on June 14, 2018, but the City Council has indicated that it will not impose fines for violations of the ordinance until January 1, 2019.3

The ordinance defines the term "Employer" as "any individual, partnership, association, corporation, business trust, contractor, temporary staffing agency, training and apprenticeship program, job placement, referral and employment agency, or any person or group of persons acting directly or indirectly and within the city limits of Spokane, in the interest of an employer in relation to an employee."

The ordinance defines the term "employment" as "any occupation, vocation, job, or work for pay, including temporary or seasonal work, contracted work, contingent work and work through the services of a temporary or other employment agency; or any form of vocational or educational training, whether offered with or without pay."

The ordinance prohibits covered employers from including language in job advertisements that effectively excludes people with arrest or conviction records, such as "no felons." Like many other ban-the-box laws, employers also cannot include questions about arrest or conviction histories on job applications.

The ordinance places further restrictions on the timing of criminal history inquiries – whether made directly to the applicant or not. That is, employers cannot ask applicants about their arrest or conviction records or perform or procure any type of criminal background searches until after the individual has participated in an in-person or video interview or received a conditional offer of employment.

Like other ban-the-box laws, this ordinance does not prohibit employers from declining to hire applicants with a criminal record or discharging employees with criminal records, but employers cannot disqualify individuals from employment solely because of a prior arrest or conviction unless it is related to "significant duties" of the job or disqualification is otherwise allowed by the ordinance. The ordinance also prohibits employers from rejecting applicants for failing to disclose a criminal record before initially determining the applicant is otherwise qualified for the position (i.e., before they meet the basic criteria for the position as set out in the advertisement or job description).

The ordinance includes some exceptions. It does not apply to employers hiring employees with unsupervised access to children under the age of 18 or vulnerable adults or persons as defined by applicable law. Nor does it apply to employers who are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant's arrest or conviction record for employment purposes; to any General Authority Washington law enforcement agency; or where criminal background checks are specifically permitted or required under state or federal law.

Recommendations

Employers with employees in New Jersey and Spokane, Washington should assess whether they are covered by these changes, and, if so, whether they need to do the following:

  • Revise job applications, interviewing guidelines and policies and procedures for background checks;
  • Revamp the sequencing and timing of events in the hiring process; and
  • Implement guidelines and documentation that comply with the new law.

Employers throughout the U.S. should continue to monitor developments in these and other areas of the country, including and in particular developments related to lawsuits by the EEOC4 and under the Fair Credit Reporting Act.5

Footnotes

1 For more information on California's extensive statewide ban-the-box law, see Rod Fliegel and Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017).

2 See Rod Fliegel, Philip Gordon, and Keith Rosenblatt, New Jersey Agency Issues Regulations on Statewide "Ban-the-Box" Law, Littler Insight (Jan. 20, 2016); Rod Fliegel, Philip Gordon, and Keith Rosenblatt,  New Jersey's "Opportunity to Compete Act" Continues the Nationwide "Ban-the-Box" Trend, Littler Insight (Aug. 12, 2014).

3 The text of the ordinance can be found at https://static.spokanecity.org/documents/citycouncil/current-agendas/201....

4 See Rod Fliegel and Allen Lohse, The EEOC Continues to Press Litigation Under Title VII Concerning Employer Criminal Records Checks, Littler Insight (Dec. 21, 2017).

5 See, e.g., Rod Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017); Rod Fliegel and Allen Lohse, Ninth Circuit Revisits Article III Standing For An Alleged FCRA Violation, Littler Insight (Aug. 15, 2017); Rod Fliegel, Ninth Circuit is the First Appellate Court to Rule on "Extraneous Text" in a FCRA Background Check Disclosure, Littler Insight (Jan. 25, 2017); Rod Fliegel, Weathering the Sea Change in Fair Credit Reporting Act Litigation in 2014, Littler Insight (Jan. 6, 2014); Rod Fliegel and William Simmons, The Swelling Tide of Fair Credit Reporting Act (FCRA) Class Actions: Practical Risk-Mitigating Measures for Employers, Littler Report (Aug. 1, 2014).

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.

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