Jumping Aboard the “Ban” Wagon: Seattle, Buffalo and Minnesota Agree to Ban-the-Box

Angela Preston

Ban the Box in Background Checks

Keeping up with ban-the-box legislation is practically a full time job. My Google alerts on this topic have been blowing up.  Most recently, Seattle City Council has voted to officially ban the box, joining the State of Minnesota and the City of Buffalo in passing laws eliminating the check box asking about criminal history on a job application. While none of these laws prohibit criminal background checks outright, they do place limits on when and how background checks can be performed. Similarities to the EEOC guidance on criminal background checks abound–restrictions that mirror the guidance are sprinkled throughout the new laws and ordinances.

Here is an update on what you need to know:

Seattle, Washington

The Seattle City Council passed the “Job Assistance Bill” on June 10, 2013 with a unanimous 9-0 vote. Activists in Seattle are celebrating the win after a long fight lead by a number of community groups–Columbia Legal Services, the Seattle Tenants Union, the Seattle homeless newspaper Real Change, the No New Jim Crow Seattle Campaign, Got Green, the NAACP, the Seattle Human Rights Commission and several others. The Seattle Chamber and employers were able to make some amendments, but the law will still require significant changes for private employers in and around Seattle. It takes effect November 1, 2013.

Here are the key provisions:

  • Employers cannot advertise, publicize or implement any policy or practice that automatically excludes all individuals with any arrest or conviction record from any employment position that will be performed in whole or in substantial part within the City of Seattle (a job that is completed at least 50 percent of the time in the city limits).
  • Criminal background checks can be done after the employer has conducted an “initial screening” of applications or resumes to eliminate unqualified applicants.
  • Employers cannot take adverse action based solely on an individual’s arrest record. However, employers may inquire into the conduct related to an arrest record and take adverse action if the employer has a “legitimate business reason” to do so.
  • Employers cannot take adverse action related to a criminal conviction unless there is a “legitimate business reason”.
  • A legitimate business reason is a good faith belief that the nature of the criminal conduct underlying the conviction or pending criminal charge will have either a negative impact on the individual’s fitness to perform the position, or will cause harm or injury to people, property, business reputation or business assets. The employer must consider the following factors:

o   Seriousness of the underlying conviction or pending charge,

o   The number and types of convictions or pending charges,

o   The time that has elapsed (excluding periods of incarceration),

o   Any information related to the individual’s rehabilitation or good conduct,

o   The specific duties and responsibilities of the position, and

o   The place and manner in which the position will be performed.

  • Prior to an employer taking adverse action, the employer must specify the record(s) or information which is the basis for the employment decision and provide the individual with a “reasonable opportunity” to explain or correct the information. (This provision is similar to the EEOC’s “individualized assessment”)
  • The employer must hold a position open for a minimum of two business days after notifying an individual of an adverse decision.
  • Federal law supersedes the legislation, including Title VII of the Civil Rights Act of 1964 and the federal Fair Credit Reporting Act, and state law (including the Washington State Fair Credit Reporting Act).
  • The legislation exempts individuals whose duties include law enforcement, crime prevention, security, criminal justice, or private investigation services.
  •  “Employee” does not include an individual who will or may have unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment.
  • No private cause of action is created by this legislation. However, it does not preclude tort claims under a theory of negligent hiring or retention.
  • Violations are punishable with a notice of infraction and an offer of assistance from the Seattle Office for Civil Rights for the first violation. For the second violation, employers may be required to pay a monetary penalty up to $750, and for each subsequent violation, employers may receive a monetary penalty up to $1,000. The employer may also be ordered to pay the Seattle Office for Civil Rights’ attorneys’ fees. The Seattle Office for Civil Rights may initiate investigations on its own or in response to a complaint from an individual.

Buffalo, New York

The Common Council for the City of Buffalo, New York passed ban the box legislation with a vote of 7-2 on May 28, 2013. Originally the ordinance was drafted to be effective immediately, but Common Council Member Demone Smith has filed an amendment to the ordinance delaying the effective date to January 1, 2014. The ordinance adds a new article to Chapter 154 of the Code of the City of Buffalo titled, “Fair Employment Screening”. Here are the details:

  • The law applies to both private employers with 15 or more employees, City of Buffalo employees, as well as its vendors (both in and outside of the city).
  •  “Employment” is broadly defined as an occupation, vocation, job, 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 with or without pay.
  • An employer cannot ask or require any applicant to disclose or reveal a criminal conviction during the application process and prior to a first interview. If an employer does not conduct interviews, the employer must inform applicants as to whether or not they must undergo a criminal background check before starting employment.
  • Employers must comply with Article 23-A of the New York State Correction Law when considering prior convictions.
  • The ordinance creates a private right of action for injunctive relief, damages, attorney fees, and other appropriate relief.
  • The ordinance has some exemptions for state law, allowing employers to ask the same questions of candidates, interns and apprentices for licensed trades or professions as those asked by a trade or professional licensing entity in accordance with New York state law.
  •  Safe harbor provision: employers may ask about convictions or violations if such convictions or violations would pose a bar to attaining employment under New York state or federal law.
  •  The Buffalo ordinance does not apply if another law authorizes or requires an inquiry into or consideration of prior criminal history.
  • Exemptions include the hiring of police, firefighters or any other peace officer positions, any public or private school or any public or private provider of services in the supervision of children, young adults, senior citizens, or the physically or mentally disabled.

Minnesota

On May 13, 2013, the state of Minnesota passed a ban-the-box law that expands the state’s ban-the-box law to private employers. When the Senate passed the bill back in April, the bill’s author, Sen. Bobby Jo Champion (DFL-Minneapolis), said the change will open up more opportunities, but GOP Sen. Julianne Ortman called it “feel-good legislation” that would simply create “a new government program.” A toolkit for compliance can be found here. The law is effective January 1, 2014

Here are the particulars:

  • The new law applies to private employers (Minnesota previously banned the box only for public employees).
  • Employers may not inquire into or consider or require disclosure of criminal record information until the applicant has been selected for an interview or, if there is not an interview, until a conditional job offer of employment has been extended to the applicant.
  •   Employers may not use employment applications that ask for criminal record information.
  •   The law has exemptions for employers who are statutorily required to consider criminal history in hiring for employees serving children, social workers, private detectives, health care workers, banks and other financial institutions, and those seeking certain licensures.
  • Violations of the law are specifically identified as civil rights violations.
  • Private employers who violate the statute may be subject to a written warning, before January 1, 2015, and subsequent fines between $500 and $2000 per violation, depending on the size of the employer.

The law also creates a safe harbor for some employers in the event of a suit for negligent hiring or retention. Evidence of an employee’s criminal history is inadmissible in such litigation if:

  • The duties of the position of employment did not expose others to a greater degree of risk than that created by the employee interacting with the public outside of the duties of the position or that might be created by being employed in general;
  • A court sealed the employee’s criminal record or the employee received a pardon prior to the act giving rise to the civil litigation;
  • The criminal record is of an arrest or charge that did not result in conviction; or
  • The action is based solely upon the employer’s compliance with the newly enacted statute regarding consideration of criminal records.

Other cities and states are ramping up with similar litigation, including New Jersey, North Carolina, Michigan, Rhode Island, and Syracuse, New York.

If you have any questions about how these new laws impact your screening program, fell free to contact me. And as always, consult with your legal counsel concerning how these laws impact your organization’s hiring process.

Check out our video for more information on ban-the-box:

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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