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. Further, 19 states 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 have 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 conditional offer of employment is extended.
Supporters argue that employer’s use of background checks excludes many applicants from jobs based solely 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’s position is 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 applicants be individually assessed.
In addressing this issue, some companies keep the criminal conviction record question in their applications but instruct applicants not to answer it if they are from the locations where it’s banned. 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.
If you are an end user of contingent workers, you probably have already addressed this issue based on a consideration of the factors noted above. But you need to take it a step further and ensure your staffing providers are aware of your policy. Your suppliers must address this issue regarding its own practices, but they also need to look at your program’s restrictions regarding the conviction record of the contingent workers you are using. Noncompliance can result in a claim being brought against both of you. There are many nuances to this issue, and consulting with employment counsel is recommended.