Written By ESR News Blog Editor Thomas Ahearn
On July 1, 2017, several “Ban the Box” laws – so called because they remove the box on job applications that applicants are asked to check if they have a criminal history and delay such questions until later in the hiring process – are scheduled to take effect in three states: Indiana, Pennsylvania, and Vermont.
On April 27, 2017, Indiana Governor Eric Holcomb signed into law Senate Bill 312 (SB 312) that takes effect July 1, 2017, to prohibit “political subdivisions” such as counties, municipalities, and townships from passing “Ban the Box” laws that prevent employers from using criminal history information.
Under Indiana SB 312, political subdivisions may not prohibit employers from making an inquiry regarding the criminal history information during an initial application for employment, and criminal history may not be introduced against employers in a civil action based on the conduct of employees if:
- The criminal history information does not bear a direct relationship to the facts underlying the civil action;
- The records of the criminal case have been sealed;
- The criminal conviction has been reversed, vacated, or expunged;
- The employee or former employer has received a pardon for the criminal conviction; or
- The arrest or charge did not result in a criminal conviction.
In the article “Indiana First State to Bar Local Ban the Box Laws” posted on the Society for Human Resource Management (SHRM) website, Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR), explained why there are strong arguments for statewide Ban the Box laws.
“If every city, county or district passes its own laws, it becomes very Balkanized and hard to do business,” said Rosen, author of The Safe Hiring Manual. “By having a clear statewide law, all employers know the rules and employers, in fact, have more of an incentive to hire an ex-offender.”
Governor Holcomb also announced that he will issue an executive order barring the state’s executive office from including on job applications questions concerning an applicant’s criminal background. The Indiana Ban the Box law is at https://iga.in.gov/legislative/2017/bills/senate/312#document-051d9997.
On May 5, 2017, Pennsylvania Governor Tom Wolf announced that a Fair Chance Hiring Policy for state agencies will “Ban the Box” and remove criminal history questions from non-civil service employment applications for agencies under his jurisdiction, according to a news story on the Governor’s website.
The Pennsylvania Ban the Box Policy will take effect July 1, 2017 for non-civil service job applicants. The Office of Administration will provide guidance and training to agencies prior to the implementation of the Ban the Box policy, and anticipates that the policy will be applied to civil service applicants by December 2017.
The Ban the Box policy “will allow prospective applicants with criminal records to be judged on their skills and qualifications and not solely on their criminal history, while preserving a hiring agency’s ability to appropriately screen applicants as part of the hiring process,” Governor Wolf said in the news story.
The Ban the Box Policy states the “Secretary of the Office of Administration hereby establishes, and Commonwealth agencies shall implement and maintain, a fair-chance hiring policy that removes the criminal history question from the commonwealth’s employment application, based on the following:
- Consideration of arrests not leading to a conviction; annulled, expunged, or pardoned convictions; convictions for summary offenses; and convictions that do not relate to an applicant’s suitability for Commonwealth employment is prohibited.
- In making hiring decisions, the hiring entity shall consider the public interest of ensuring access to employment for individuals with criminal records.
- This HR Policy shall not affect positions in which a criminal conviction makes an applicant ineligible under law. This HR Policy also shall not apply to employment positions responsible for the safeguarding or security of people or property, law enforcement, or those involving contact with vulnerable populations. All departments, agencies, boards, commissions, and councils shall utilize the online job application system as required by ITPBUS008. No department, agency, board, commission, or council shall utilize its own job application form or questionnaire, unless such form or questionnaire is approved by the Secretary of the Office of Administration.”
Pennsylvania agencies will continue to use the U.S. Equal Employment Opportunity Commission (EEOC) Guidance in determining whether the criminal history of applicants affects their candidacy for a position. The Pennsylvania Ban the Box law is at www.oa.pa.gov/Policies/hr/Documents/TM001.pdf.
On May 3, 2016, Vermont Governor Peter Shumlin signed into law a bill – H.261 – that takes effect July 1, 2017, to “Ban the Box” and remove questions about criminal records from initial job applications for both state and private employment in Vermont, according to a press release from the Governor’s website.
H.261 will give applicants with criminal records a fair chance at decent jobs while reducing the risk of recidivism and incarceration. The new Vermont Ban the Box law follows a 2015 Executive Order signed by Governor Shumlin to implement Ban the Box policies for state jobs.
“Banning the box is all about breaking down barriers and giving those Vermonters who have paid their debt to society a fair chance at finding a good job,” Governor Shumlin stated in the press release. “Nobody wins when Vermonters are trapped in a cycle of unemployment and incarceration.”
The Vermont Ban the Box law prohibits employers from asking criminal history questions on applications until the later stages of the hiring process and also provides exemptions for certain positions. The Vermont Ban the Box law is at http://legislature.vermont.gov/assets/Documents/2016/Docs/ACTS/ACT081/ACT081%20As%20Enacted.pdf.
Currently, 28 states and over 150 cities and counties have Ban the Box laws to remove barriers to employment for qualified workers with criminal records so they may be first judged on their knowledge, skills, and ability to perform a job, according to the National Employment Law Project (NELP).
A 2011 study by NELP called ‘65 Million Need Not Apply – The Case for Reforming Criminal Background Checks for Employment’ estimated that nearly 65 million people in the United States – more than one in four U.S. adults – had a criminal record. NELP has since revised that number up to 70 million people.
ESR BAN THE BOX INFORMATION PAGE
Employment Screening Resources® (ESR) – a global background check provider – supports sensible Ban the Box legislation. ESR offers employers a Ban the Box Information Page that contains news and legal updates about states, cities and counties, and resources available at www.esrcheck.com/Ban-the-Box/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
© 2017 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.