“Ban the Box” Bandwagon Rolls On

Angela Preston

Ban the Box Employment Background Checks

The movement to “ban the box” shows no signs of slowing down. New Jersey, Rhode Island, North Carolina, Minnesota and Michigan are all considering new bills for statewide bans on the practice of asking applicants to check a box on their job application indicating whether they have a criminal conviction. We can hardly keep up with the influx of proposed new laws limiting criminal history in one way or another. Here is a run-down:

New Jersey
The most comprehensive and far-reaching proposal is in the State of New Jersey. On February 7, 2013, three New Jersey Senators introduced “The Opportunity to Compete Act,” (“OCA”) which would eliminate the check box that requires job applicants to disclose their criminal history and would also prohibit advertisements discouraging those with criminal records from applying. The bill is modeled after the recent ordinance that was passed in the city of Newark. The bill, as proposed, will significantly complicate the hiring process in the State of New Jersey.

The bill says that an employer can only consider a job applicant’s criminal history after the employer makes a conditional offer of employment. After extending a conditional offer, employers may consider convictions for murder, arson, sex offense requiring registration, and terrorism, as well as any pending criminal charges. Employers may not consider:
•    convictions for most crimes of the first through fourth degree for which an applicant was released from custody over ten years ago;
•    any arrest or accusation that did not result in a conviction;
•    any record that has been erased, expunged, or sealed;
•    any juvenile delinquency adjudications; or
•    any violations of municipal ordinances.

The bill mirrors much of the recent EEOC guidance on the use of criminal records, but takes it to a new level by dictating which crimes may or may not be considered, and requiring employers to consider mitigating factors in each and every instance, such as any evidence of the applicant’s rehabilitation, the accuracy of the records, the amount of time since the candidate’s release from custody, and the nature and circumstances of the crime on a case by case basis for every candidate before rescinding a conditional offer.  The bill requires that employers “make a good faith effort” to discuss any concerns or questions it may have with the candidate.

The law would also exceed current Federal notice requirements under the Fair Credit Reporting Act, imposing a new layer of significant and burdensome procedures. If an employer makes an adverse decision based on information from a candidate’s criminal history, the bill not only requires the employer to send the applicant “in one package, by registered mail” written notice of the decision, a copy of the results of the background check, but also requires a completed “Applicant Criminal Record Consideration Form” (provided by the statute), and a “Notice of Rights” (also provided by the statute).

The candidate then has 10 business days to appeal the rejection but does not require the employer to hold the position for the candidate during that time. If the position is still open, however, the employer must consider any additional information the candidate provides.

New Jersey employers should be alarmed. Not only does the law place significant new burdens on employers, it ups the ante by including civil penalties ranging from $500 to $7,500 per violation based on the type of violation and size of the employer (although the OCA would not apply to small employers with less than five employees, employment involving (on average) less than 15 hours of work per week, and employment that is not (in whole or substantially) physically performed within New Jersey). There is, however, both a state and Federal safe harbor for employers who are required by statute to consider results of criminal background checks.

Here are a few others:

Michigan
On March 5, Michigan State Rep. Fred Durhal (D-Detroit)  and ten co-sponsors introduced House Bill 4366 .  It is a straightforward ban-the box bill that would prevent employers from asking about felony convictions on a job application. The bill would apply to both public and private employers, but provides an exemption for state and federal requirements.

North Carolina
On March 5, 2013 State Rep. Marcus Brandon (D-Guilford) and several other North Carolina state lawmakers introduced HB 208, a straight forward ban the box bill,  restricting employers from asking potential employees if they’ve been convicted of a crime.

Rhode Island
Rep. Scott Slater, D-Providence and Rep. Michael Chippendale, R-Foster, Glocester and Coventry, are co-sponsors of SB 357, which would prohibit asking about prior convictions on employment applications except in the cases of state or federal law requirements. The law outlines specific situations where an employer may inquire about criminal history and dictates factors that must be taken into account if criminal history is a determining disqualifier. Lauren Conners blogged on this bill here last week.

Minnesota
On February 11, 2013, S.F. 361 and  H.F. 498 were introduced as companion bills by Sen. Bobby Joe Champion (DFL-Minneapolis) and Rep. Tim Mahoney (DFL-Hyacinth), respectively. These bills limit reliance on criminal history for employment until the interview, extending current law that applies to public employment to private employers. Employees with criminal history can submit a certificate of rehabilitation: “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the employment sought or the occupation for which the license sought.”  No one can deny that person a job if such a certificate is presented.  Evidence of prior criminal history cannot be introduced as evidence against an employer if the employer hired in accordance with Ch. 364, and violations are civil rights violations.

 

States are not the only ones taking action–local initiatives are on our radar as well.  Syracuse has tabled its proposal for a city-wide ban, but Seattle’s ordinance is still pending. Currently, California, Connecticut, Hawaii, Massachusetts, Minnesota, New Mexico and Washington DC have passed legislation limiting criminal background checks during the hiring process. Additionally, over 40 cities and counties including Atlantic City and Newark have passed some sort of “ban the box” reforms. The ban-the-box trend continues to move into the private sector, and it is imperative that employers understand how these proposed laws will impact their hiring process and ability to find qualified candidates.

Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
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