“Ban the Box” Laws Gaining Momentum

Recent changes in workplace laws are making it more problematic to ask about criminal history on an employment application.  According to a recent report by the National Employment Law Project about 65 million Americans have a criminal record that could show up on a routine background check.  That amounts to one in four adults.  Employers who have been warned of the dangers of negligent hiring are understandably concerned about hiring an employee who has a criminal record.  However, it is already illegal in some jurisdictions to ask applicants about their criminal records.  Furthermore, the U.S. Equal Employment Opportunity Commission (EEOC) has found that taking an adverse employment action against an individual for having a non-work-related criminal conviction has the effect of being discriminatory, since certain minorities have higher incarceration rates.   For federal contractors, the OFCCP issued Directive 306 in January 2013, which requires employers to conduct an individual assessment of the job-relatedness of a conviction to the job for which the candidate applied.

Now there is a push to completely eliminate questions regarding criminal histories from employment applications.  This campaign, which is known as “Ban the Box,” is gaining real momentum as  laws are being passed across the country which forbid employers from asking questions regarding criminal histories on employment applications.  This article will discuss what these new laws mean for companies, and what is needed to avoid any potential liability.

Up to date, twelve states have passed “Ban the Box” laws.   In four of those states (Hawaii, Massachusetts, Minnesota, and Rhode Island) the law applies to private employers.  In addition, a large number of county and municipal governments have passed similar legislation; some proscribing only public employers and others both public and private employers, including:  New Haven CT, Atlanta, Chicago, Indianapolis, Baltimore, Detroit, Minneapolis, Newark, Atlantic City, Buffalo, Rochester, New York City, and Philadelphia.  Not all of these laws are the same, some are stricter, while others are more limited in scope.  Among the most restrictive laws is in Newark, which applies to all employers and allows limited criminal background checks only after a conditional offer of employment is made.

Even when a permissible background check is conducted, an employer generally cannot make an adverse hiring decision on the basis of a criminal history unless there was a conviction, and that the crime is job related.  For example: if the position is for a bookkeeper, and the applicant was convicted of embezzlement, the employer might be justified in not hiring that individual.  However, if that same applicant was convicted of a minor drug offense a few years ago that conviction, on its own, cannot be the basis for not hiring the applicant.

Thus some factors that employers need to consider are the nature and severity of the crime, its relation to the position, and the length of time since the conviction.

While employers can get into trouble by not hiring someone with a criminal record, there is also a danger in disregarding an employee’s previous conviction.  Besides obvious threats to person and property, there is also potential liability in hiring someone with a criminal history.  For example: if an individual was arrested for assault and then hired for a position where that person interacts with the general public, if that employee assaults a customer, the company may be liable for negligent hire.

Employers must walk a fine line between avoiding liability for discrimination and for negligent hire.  In light of the expanding “Ban the Box” movement the following procedures are recommended:

  • Employers should immediately remove questions regarding criminal records from their employment  application.
  • Employers should prepare a second form to be used during the interview process which inquires about criminal history (be sure to ask about criminal convictions rather than arrests or criminal records).
  • If your company performs background checks through a third party, they should also investigate criminal history.   However, be sure to review with your background-check vendor that they are in compliance with state and local rules.
  • In locations where criminal record inquiries are prohibited until a conditional offer is made, employers must first conditionally offer the position and then ask about any criminal record.  If this is the case, employers must be especially careful if an adverse hiring decision is made once the criminal history is revealed.
  • If you choose to ask questions regarding criminal convictions on your employment application, be sure to distribute the New York Correction Law 23-A form to applicants. The NY Correctional Law Section 23-A requires employers who conduct criminal background checks to distribute a form detailing protections afforded to employees with criminal records. Employers should obtain a signed receipt from the applicant. A copy of this form can be found here.

Because of the multitude of laws regarding criminal background checks across local state and federal governments, determining what rules apply to your company can be difficult.  PMP strongly recommends that you immediately review both your state and county laws and take all necessary steps to make sure you are in compliance with these new laws, including revising your company’s employment application, and distributing all necessary forms.  Please contact any of PMP’s HR professionals or labor attorneys to determine what actions you should be taking now.   Contact PMP at (516) 921-3400 or mbportnoy@pmpHR.com.



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