Ban the Box Movement that Eliminates Criminal History Question from Job Applications Picking Up Momentum

Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

The “Ban the Box” movement that seeks to eliminate questions about past criminal conduct on initial job applications is quickly heading towards becoming a national standard and will be a hot issue for employers in 2014. The “box” refers to where an applicant is asked to answer “yes” or “no” about a criminal past.  The idea is that asking about criminal records upfront serves as a potential early knock-out punch for ex-offenders that may otherwise be qualified. This is Trend Number One of the 7th Annual Employment Screening Resources® (ESR) ‘Top Ten Background Check Trends’ for 2014. For more information about the trends, please visit https://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

The “Ban the Box” approach allows an applicant to compete on an even playing field based upon their qualifications and also prevents ex-offenders from being deterred from applying for jobs in the first place since they may assume their application will go straight into the trash if they answer honestly.  Advocates of “Ban the Box” note that society cannot afford to have a whole segment of the population locked out of the job market, resulting in building more jails and prisons than schools and hospitals.  Of course, “Ban the Box” does not mean that pedophiles will supervise playgrounds or bank robbers will handle the cash drawer.  At an appropriate time during or after the interview, employers are still free to conduct background checks.  The point, however, is that a qualified ex-offenders will have a fair chance of making it to the interview stage.

A number of states and counties have moved to a ban the box approach on public employment, joined by states such as California and Illinois just in 2013.  However, some jurisdictions such as the states of Hawaii, Massachusetts, and Minnesota, have extended the rule to private employers as well.  A major national retailer, Target, announced it would roll-out “Ban the Box” nationwide beginning January 1, 2014.  Many employers are finding little value in asking the “criminal question” up front, and that standard review processes to whittle down the applicant pool based upon qualifications are more effective and poses less legal risk.

Two states – Minnesota and Rhode Island – have “ban the Box” legislation taking effect January 1, 2014. Minnesota Senate File 523 (SF 523) extends the “Ban the Box” provision currently existing in public employment to private employers by eliminating the check box asking about criminal history on most applications and limiting private sector employers in the state from asking about criminal records of job applicants until an interview or a conditional job offer. Rhode Island Senate Bill 357 (SB 357) will prohibit inquiries on employment applications regarding prior criminal convictions except when federal or state law specifically disqualifies a person from employment due to a prior conviction or authorizes such inquiries. The text of SF 523 is available at https://www.revisor.mn.gov/bills/bill.php?b=House&f=SF0523&ssn=0&y=2013. The text of SB 357 is available at http://openstates.org/ri/bills/2013/SB357/.

According to a November 2013 National Employment Law Project (NELP) Briefing Paper ‘Statewide Ban the Box: Reducing Unfair Barriers to Employment of People with Criminal Records,’ ten states – California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, and Rhode Island – have adopted some form of “Ban the Box” legislation. The Briefing Paper from NELP is available at http://nelp.3cdn.net/3c0ae798a3c30d354e_jgm6beq1q.pdf.

A September 2013 “Ban the Box” Resource Guide from NELP found more than 50 major U.S. cities have adopted hiring policies to remove unfair barriers to applicants with criminal records. The cities include: Baltimore, MD; Boston, MA; Chicago, IL; Cincinnati, OH; Cleveland, OH; Detroit, MI; New York City, NY; Oakland, CA; Philadelphia, PA; Pittsburgh, PA; San Francisco, CA; Seattle, WA; and Washington, DC. The Resource Guide is available at http://nelp.3cdn.net/ce31d03afc257a8131_gpm6bfwwb.pdf.

A 2011 NELP study titled ‘65 Million Need Not Apply’ found that more than one in four adults in the United States had criminal records. The study estimated that 64.6 million people – representing 27.8 percent of the U.S. adult population – had a criminal record for either an arrest or a conviction on file with states. The study from NELP, a non-profit organization that focuses on issues affecting low-wage and unemployed workers, is available at http://nelp.3cdn.net/e9231d3aee1d058c9e_55im6wopc.pdf.

In October 2013, California Governor Jerry Brown signed into law Assembly Bill 218 (AB 218) to prohibit requesting criminal record information on initial employment applications for local and state government jobs. AB 218 removes any inquiries into conviction histories on initial job applications – except for positions such as law enforcement and working with children, the elderly, or disabled, and other sensitive positions – and delays background checks until employers have determined that the qualifications of applicants meet the job requirements. More information about AB 218 – which makes exceptions for positions such as law enforcement and working with children, the elderly, or disabled – is available at http://openstates.org/ca/bills/20132014/AB218/.

In addition, legislation proposed by members of the San Francisco Board of Supervisors – Ordinance No. 131192 – would expand existing “Ban the Box” rules that prevent city agencies from asking applicants about criminal convictions on job applications to include most private employers in the city. Ordinance 131192 would amend the Police Code to require employers and housing providers to limit the use of criminal history information, and follow certain procedures and restrictions when inquiring about and using conviction history information to make decisions about employment and tenancy in San Francisco. Ordinance No. 131192 is available at https://www.esrcheck.com/file/San-Francisco-Board-of-Supervisors_Ordinance-131192.pdf.

Private employers should consider a “Ban the Box” approach. Asking about criminal records early in the hiring process serves as a knock-out punch before candidates have a chance to be considered on their qualifications and unnecessarily exposes employers to allegations they are automatically tossing out applications with a criminal record. Employers are better served using good hiring techniques based upon neutral factors to whittle down the applicant pool. When employers finally do ask applicants about any past criminal records, they need to make an effort to not ask a broadly worded question that may encompass criminal records that are either too old or irrelevant for the job, since that can have the impact of imposing a lifetime ban on an applicant.

Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide background screening firm located in the San Francisco, California-area that is accredited by the National Association of Professional Background Screeners (NAPBS®). For more information about “Ban the Box” and background checks, visit https://www.esrcheck.com/, call Toll Free 888.999.4474, or email [email protected].

About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in the San Francisco, CA-area in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit https://www.esrcheck.com, call toll free 888.999.4474, or email [email protected].