As ban-the-box turns 20, compliance challenges grow
Particularly for multi-state employers, the patchwork of disparate laws has become daunting from a compliance standpoint.
On July 15, 1998, Hawaii became the first state to adopt a fair-chance law applicable to both private and public employers. The law bars employers from inquiring into, or considering, the criminal record of a prospective employee until after a conditional offer of employment has been made.
Since then, 30 other states — and more than 150 cities and counties — have adopted some form of "ban-the-box" legislation or fair-chance law designed to give applicants a shot at getting hired without the stigma of a conviction or arrest record, according to the National Employment Law Project (NELP).
Particularly for multi-state employers, the patchwork of disparate laws can be daunting from a compliance standpoint. So how are they coping? HR Dive spoke with three experienced employment law attorneys to get their insights.
Think nationally and holistically
"About five years ago, I stopped advising employers to parse things out and comply with different state statutes," said attorney Joe Schmitt, a shareholder in the Minneapolis office of Nilan Johnson Lewis PA. "It's better to have a national policy regarding background checks that attempts to comply with as many laws as possible."
Schmitt recommends that employers do the following:
- Ban the box and don't require information about a criminal record on the application for employment. In many states, it is still lawful to do so, "but there are so many changes at the state and municipal levels…I don't believe it is worth the effort to keep abreast and modify the application on a city-by-city or state-by-state basis."
- Adopt a policy of considering the criminal record holistically. "When [employers] do eventually get the arrest record — ideally after a job offer is made — they should consider not just what the conviction is, but when it happened, as well as the link between the conviction and the position the person has applied for."
- Provide individuals the opportunity to "appeal" if they are turned down due to a criminal conviction. The applicant should be permitted to present, for example, persuasive evidence that he or she has been rehabilitated.
- Keep abreast of substantive state laws that restrict consideration of criminal records, such as California's strict limitations on employers' ability to consider marijuana-related convictions.
Don't dismiss the box entirely
"I take a highly customized approach [to ban the box]," said attorney Stephen Woods, a shareholder in the Greenville, South Carolina, office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. "If an employer wants to do a one-size-fits-all, the best way to comply with ban the box is to wait until after the conditional offer to ask about criminal history — or even, in some jurisdictions, to review the disclosure and complete the authorization."
Woods said that while some of his clients say, "let's just wait until after the conditional offer," others are forgoing the question altogether and choosing to rely solely on the background check to reveal anything relevant. But that approach comes with its own risks.
"I am not as big a fan of not asking the question at all," said Woods. "You always want the applicant and the employer to start a dialogue, and I like this dialogue to happen early on."
Additionally, Woods said, the question is an important test of honesty and veracity on the part of the applicant.
"We still see a ton of people who blatantly lie," he said. Some think the employer may not run a background check — especially if they are unfamiliar with a particular employer's hiring procedures — and others may believe the conviction is too old to show up. Barring a relevant expungement or sealing law that permits a negative answer to the question, Woods said, "if they lie about their history, and some do, that's a red flag."
Woods also said that true ban-the-box restrictions are not as widespread as some have made it seem. By his count, there are 12 states and 17 localities that have actual ban-the-box rules for private employers — meaning one-size-fits-all may be a broad solution for a problem that so far only exists in a few places.
Remember the purpose behind the law
Sandra Rappaport, a partner at the San Francisco office of Hanson Bridgett LLP, noted that California's statewide ban-the-box law went into effect this year — and it's an example of the intent behind these laws.
"It completely prohibits employers from asking about criminal convictions until after a conditional offer," she said. "But even then, if the employer will deny the job, they must conduct an individual assessment."
California's fair chance process, she said, requires that employers provide denied applicants at least five days to respond, as well as a copy of the criminal history and a copy of his or her right to respond to the notice. The applicant can then submit evidence that the history is wrong, that the applicant has been rehabilitated, that there are circumstances the employer should consider and so forth.
Even after that, Rappaport said, "the employer must notify the applicant in writing if employment will still be denied, then provide notice of the appeal process."
While California's ban-the-box law is unusually stringent, Rappaport says she gives similar advice to clients all around the country: "It's now really considered a best practice to articulate legitimate reasons why you will disqualify somebody."
"The whole idea behind it is that individuals should have a fair shot at jobs," she added. "It's not always the case that somebody who's been convicted is going to end up engaging in misconduct or being a bad performer. And they won't have a chance to prove themselves unless you hire them for a job."