Ban the Box and Your Business

Ban The Box and Its Effect on your Business and your Hiring Process

Eliminate. Weed out. Reduce the risk, and increase the return on investment of each new hire. This has long been the mantra of the human resource department, where quality is emphasized over quantity.  The “have you ever been convicted” check box found on many organizations applications has recently come under fire, and even outlawed in some jurisdictions for unfairly rejecting potential applicants before being given the opportunity to showcase their qualifications to a hiring employer.  “Ban the Box” legislation, which eliminates the use of the ‘criminal conviction box’ questionfor most businesses and organizations, is currently being proposed across the country in multiple jurisdictions. While it has successfully passed in 10 states and over 50 municipalities as of November 2013, according to NPR.org., most of the legislation applies to “public” employers such as federal, state, county, and city government offices and agencies. Still, in other jurisdictions, it applies to both public and private employers, and is gaining momentum as an application to private employers.

The intention of the “Ban the Box” initiative is to provide applicants with a fair starting ground on the application process.  Rather than be eliminated immediately due to a ‘check in the box’ for a prior conviction or arrest, public government and private employers are being encouraged to bring applicants further along in the hiring process before determining if a prior transgression is worthy of considering one ineligible for the job.  For example, City of Tampa, Florida passed legislation duringthis past January 2013 that prohibits applicants for city jobs to have a background check run on them until the applicant is named as a finalist for the position. If the applicant is then deemed ineligible because of a flag on the employment background screen, they then will have an opportunity to respond.

Most government organizations with an obligation towards public safety such as police and fire departments, etc., that have historically maintained a zero tolerance policy of hiring individuals with prior convictions are generally exempt from “Ban the Box” laws. If you are a business in a state, county, or city where a “Ban the Box” law has passed or is being proposed, it would be beneficial to know what the EEOC (Equal Employment Opportunity Commission) says about your rights as an employer during the hiring process, and also, what rights your applicants have from the time you post a job through the culmination of the hiring process.

Any initiative such as ban the box that alters the rights of a business, or increases the potential for employment by a previously disenfranchised segment of the population is going to create some controversy and difference of opinion on the effectiveness of the law.  However, there are ways to be compliant with the EEOC’s recommendations, and with states and cities that have passed a “Ban the Box” law, and still mitigate your risk ofhiring a worker with a background that is not suitable for the position. As Pamela Devata of Seyfarth Shaw in Chicago told SHRM Online:

“The EEOC’s guidance seems to indicate that what criminal history question employers should ask should be tailored to the specific job in question.” Devata added that “Since the guidance (of the EEOC) is not binding, employers are not required to remove questions about criminal history from their employment applications. However, given that the EEOC is the administrative agency charged with enforcing Title VII, employers should evaluate what information they ask in relation to the position in question and when they should ask it. We are advising employers to consider asking about targeted criminal history convictions based on position or job class later in the hiring process to address the EEOC’s concerns.”

Accurate Information Systems, LLC (AIS) strongly recommends that you check with your labor law attorney and a licensed professional background screening company, like AIS, for any questions you have about the ever-growing, ever-changing “Ban the Box” initiative. Since this is likely to be an evolving jurisdictional and compliance issue within the Human Resources community, stay tuned for future blogs and communication from AIS on this very important issue.

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