Ban the Box Has Jumped the Shark: It’s Getting Ugly Employers

Nick Fishman

Ban the Box- Criminal Background Checks

If you are in the talent management space, you know that there has been an explosion of “Ban the Box” laws that have popped up at the federal, state and local levels over the last few years.  These employment and labor laws generally prohibit employers from asking whether a job candidate has been convicted of criminal activity on the job application.  Sometimes, these laws only affect government workers, but more often they include private sector employers as well.

If you conduct employment background checks, you’ll want to read on to see why it’s time to take a harder stance on “ban the box”.

For years, I’ve been on the fence about these laws.  On one hand, I strongly believe that hiring managers shouldn’t just dismiss candidates offhand for the mere presence of a criminal conviction.  Instead, HR professionals should take the time to understand what the conviction was for, the severity, how long ago it occurred and why that conviction would disqualify someone from employment.  On the other hand, there are certain offenses that are so egregious that employers shouldn’t be forced to waste time or effort considering the candidate only to find out about the conviction later in the process.  For instance, shouldn’t a school be entitled to know immediately if someone has a conviction for child abuse?  There are also myriad of regulated industries that simply can’t hire individuals by law for specific types of criminal activity and in some cases, any kind of criminal conviction.

Behavior Is Changing

Whether an employer is affected by these laws or not, we are seeing a number of organizations remove these questions from their job application and ask the question at a later date.  And if the conversation just stopped there, I think we’d all find a way to make it work.

Ban the Box Is Going Off the Reservation

What started as a simple law that was easy enough to comply with seems to be going off the rails in some places and is causing massive confusion and an administrative nightmare for employers.  But the laws are no longer just about a check box on the job application.

Let’s take the city/county of San Francisco.  The new ordinance there transcends the standard “ban the box” law.  Let’s just browse through a recent legislative update about the San Francisco legislation (set to take effect on August 14, 2014), written by our vice president of compliance and general counsel, Angela Preston:

Notice Requirements

Prior to asking about the criminal history, an employer must provide the applicant with a copy of a notice specified in Section 4905 of the ordinance.  The employer is also required to post a copy of the proscribed notice in the workplace. This notice appears to be in addition to the authorization and disclosure required under the Fair Credit Reporting Act (FCRA) and (ICRAA).

Individualized Assessment and Adverse Notices

If an employer wants to base an adverse decision on an applicant’s conviction history, and employer has to conduct an individualized assessment. The employer must:

    • Consider only Directly-Related Convictions.
    • Consider the time that has elapsed since the Conviction or Unresolved Arrest.
    • Consider any evidence of inaccuracy
    • Consider any evidence of Rehabilitation or Other Mitigating Factors

If an employer decides to reject an applicant because of criminal history, prior to taking the adverse action, the employer must provide notice in writing, including:

    • A copy of the background check
    • The intended adverse action and
    • The items forming the basis for the action (again, an additional requirement beyond what is required by the FCRA)

The applicant then has seven days to respond (orally or in writing), and may provide evidence of inaccuracy, evidence of rehabilitation or other mitigating information. The employer must reconsider the adverse action, and respond to the applicant with a final decision, delaying any adverse action “for a reasonable amount of time.”

Upon reaching a final decision, the employer must “notify” the applicant, but the ordinance does not specify the manner of notification. If your background screening company is sending adverse action notices on your behalf, you should.

Is Your Head Spinning Yet?

Yep.  They are asking for an individualized assessment that has different requirements than the Equal Employment Opportunity Commission (EEOC) guidance on criminal records.  Yes, there is a unique adverse action process that is required over and above that which is required by the Fair Credit Reporting Act (FCRA).  Yes, there is a unique notice you now need to provide to candidates in San Francisco over and above what is already required by the FCRA and the California Investigative Consumer Reporting Agencies Act (ICRAA).

These are just the requirements for one city.  And San Francisco isn’t alone.  Newark, New Jersey has also enacted similar legislation with its own unique requirements.

I suppose if your business is located only in these areas, these provisions are easy enough to follow, but how an earth are national employers supposed to deal with this?

Something Needs to Be Done

The employer community needs to push back.  Employers can’t just sit back anymore and think that these laws are benign.  At the least, they are creating an administrative nightmare.  At worst, the plaintiff’s attorneys are standing by waiting for your first misstep.

These laws overstep the FCRA and need to be challenged.  It’s time for employers to speak out against local and state laws that are invalid and preempted by existing federal law, conflict with the EEOC guidance, and go far beyond giving ex-offenders a chance for an interview. Employers, state and local chambers of commerce, and business leaders need to unite to fight the wave of new ordinances and state bills that are being introduced on a weekly basis. We need to work together to fight these bills, draft alternative language that makes sense for all parties, and challenge the laws that have passed without sufficient input from the business community. Without action, employers will continue to be faced with uncertainty in what and when they can ask about a criminal past, and what compliance steps need to happen along the way.

At the very least, there needs to be uniformity.  That’s the beauty of the Fair Credit Reporting Act.  It creates a consistent set of set of rules and steps an employer must take if they decide to conduct employee background checks. The business community needs and is entitled to certainty, and consumers deserve protection.  There needs to be standard federal guidance on this topic, period.

Are These Laws Even Working?

Whether these laws are working depends on what the purpose of them is in the first place.  If the purpose is to remove the question from a job application so that the employer will get to know a candidate before disqualifying them for a criminal record, I think the answer is yes.  The problem is, they don’t stop there.  If the purpose of these laws is to force employers to consider, or even make conditional job offers to applicants who clearly have disqualifying records, the answer is NO WAY!!!!!  If the purpose of these laws is to confuse employers so much to the point where they might consider whether they even should conduct an employment background check (a la San Francisco), they answer is maybe.  And that would be an horrible shame for an employer, their employees and their customers.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
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