Across the country, states and municipalities have been enacting “Ban the Box” laws. These laws prohibit employers from asking prospective employees about criminal records on employment applications and, in some cases, dictate when in the hiring process an employer can conduct a criminal record check.
Ban the Box laws are certainly well-intentioned. By removing questions about criminal history from employment applications, people with criminal records face fewer barriers to employment. By banning the box, otherwise-qualified individuals are not automatically disqualified by employers simply for having a criminal history.
But how that affects you as an employer, and your potential liability when you hire someone, is a little more complicated.
Who is a criminal?
According to the FBI, 73.5 million people in the United States have been arrested on a felony charge. The bureau considers all of them to have a criminal record, even if the arrest did not lead to a conviction. That would mean that, by the FBI’s standard, approximately 30% of the adult population in the U.S. have a criminal record. The bureau doesn’t have a comprehensive system to track misdemeanors.
If we can’t determine with absolute certainty how many adults have criminal records, we can say how many ex-offenders are released from prison each year: more than 650,000, according to the United States Department of Justice.
So what happens if the employment process is allowed to discriminate against them and they are unable to re-enter the workforce? What happens if they check a box that asks if they’ve been convicted of criminal activity on a job application and, because of that, aren’t hired? They’re at a much higher risk of chronic unemployment or re-engaging in criminal activity.
Unintended consequences and concerns for employers
What does this well-intentioned law mean for you as an employer?
First, the question is, what does the Ban the Box law say in your jurisdiction? Thirty states and more than 150 cities and counties have enacted Ban the Box laws, and the laws are far from consistent. They vary widely, depending on the size of the employer, whether or not the employer is a public entity, the employer’s industry, or if the employer has public contracts.
Second, while most of these laws do not prohibit an employer from conducting a criminal record check, they vary as to when in the hiring process an employer may legally conduct one. The differences in these laws can be complicated to navigate. These variations can also cause significant compliance issues if an employer has a wide geographical footprint.
Ban the Box doesn’t lower your liability
Here’s the rub: Ban the Box laws could make employers more open to negligent hiring or retention lawsuits if an employer decides to take a chance on an individual with a criminal history. Ban the Box laws do not absolve employers from the liability that comes from hiring or retaining a bad employee.
On the flip side, Ban the Box laws could make employers more likely to face discrimination claims if they do not hire an individual with a criminal history. As Ban the Box laws generally push criminal history checks to later in the hiring process, job applicants could be more likely to believe that they are qualified candidates. If they are eventually disqualified later in the process after a criminal history check, the perception could be that they were discriminated against because of their criminal history.
If this sounds like “damned if you do, damned if you don’t,” here’s how to protect yourself.
How to limit your liability
- Consult with your employment attorney to ensure that you are compliant with your local Ban the Box laws. Double-check what to do if your company hires people in multiple jurisdictions, or if you operate in a jurisdiction where you are subject to both state and local Ban the Box regulations.
- Carefully review your hiring practices to determine what criminal history and other information are necessary and relevant for the job position(s) you are hiring for. Have clear, justifiable, consistent guidelines for what types of criminal offenses would disqualify a candidate and retain hiring records. Some jurisdictions, such as New York City, make it mandatory for an employer to disclose the analysis used in disqualifying a job candidate. Even if your jurisdiction doesn’t require such disclosure, document everything in writing.
Partner with a background screening firm capable of providing you the quality and depth of information necessary to make sound hiring decisions. Also, make sure your background screening partner is well versed in the Fair Credit Reporting Act (FCRA) and other local regulations to ensure that the firm only reports criminal record information to you in accordance with the law. Ultimately, responsibility for compliance falls to the employer.
One Response
Great article. Private businesses without in-house counsel or well-qualified HR will have a hard time wading through these regulations. Right now, the Massachusetts authorities seem to be targeting the bigger employers, but mid-sized private employers will surely be next. And if you need to or want to do a CORI check, you are far better off using a professional screening agency.