Local Ban the Box Laws Will Be Challenged as Less Effective than Statewide Laws with Incentives for Employers in 2018

Written By ESR News Blog Editor Thomas Ahearn

As of January 2018, 30 states and more than 150 cities and counties in America have passed “Ban the Box” laws that remove questions about criminal history from job applications and delay such inquiries until later in the hiring process. The fact that employers will have to deal with a myriad of overlapping local and statewide Ban the Box laws is trend number 2 of the “ESR Top Ten Background Check Trends” for 2018 selected by global background check firm Employment Screening Resources (ESR).

“Having mixed local and state Ban the Box laws without giving employers incentive or protections from negligent hiring lawsuits is going to be challenged as hurting ex-offenders more than helping. In addition, studies show that without screening, some employers assume an applicant has a criminal record or employers may rely more on continuous past employment, which is even worse for ex-offenders,” explains ESR founder and CEO Attorney Lester Rosen, author of ‘The Safe Hiring Manual.’

“Originally, Ban the Box laws were concerned with the initial the application process,” adds Rosen. “However, many of these laws have morphed into ‘Fair Chance’ laws that also impose processes for how criminal information is utilized.  In other words, it is often no longer limited to just the application process, so a consistent statewide Ban the Box policy where employers are given some sort of immunity if they hire an ex-offender is likely the most effective means of giving people a second chance.”

A study released in January of 2017 found that Ban the Box policies increased the odds of public sector employment for those job applicants with criminal records by close to 40 percent. Written by Terry-Ann Craigie, Ph.D., Assistant Professor of Economics at Connecticut College, the study found “that public sector BTB policies increase the probability of public sector employment of convicted individuals by approximately 5 percentage points, which constitutes nearly 40 percent of the outcome mean.”

A research report released in February 2017 by the nonprofit Urban Institute suggested that Ban the Box policies may be improved with policy additions to support equal employment opportunity laws that help prevent racial discrimination. The report explained how Ban the Box policies have gained popularity and “are intended to give people with criminal histories the opportunity to display their qualifications in the hiring process before being assessed—and potentially rejected—based on this history.”

Ban the Box is growing. On October 14, 2017, California Governor Jerry Brown signed into law Assembly Bill 1008 (AB 1008), a Ban the Box law that prohibits private employers from asking about the criminal history of applicants before a conditional job offer that takes effect January 1, 2018. In 2013, California passed Ban the Box legislation – AB 218 – which applied to public jobs. ESR has created a California Ban the Box Law Infographic to help employers better understand their obligations under AB 1008.

On November 6, 2017, Arizona governor Doug Ducey issued Executive Order 2017-07 to adopt new “Ban the Box” hiring procedures to provide a second chance and increased job opportunities to ex-offenders who served their time and been released. Under the Ban the Box policy, Arizona state agencies will delay questions about the criminal record of applicants for state employment until after the initial stages of interviewing to ensure all individuals receive full and fair consideration for job openings.

On July 1, 2017, Ban the Box laws took effect in Indiana, Pennsylvania, and Vermont. Indiana Senate Bill 312 (SB 312) prohibited “political subdivisions” such as counties, municipalities, and townships from passing Ban the Box laws. The Pennsylvania Fair Chance Hiring Policy removed criminal history questions from non-civil service employment applications for state agencies while Vermont H.261 removed questions about criminal records from initial job applications for both state and private employment.

Utah joined the Ban the Box movement with House Bill 156 (HB 156) that took effect on May 9, 2017. Government employers cannot exclude ex-offenders from getting a job interview and they cannot ask applicants about criminal records before an interview. HB 156 does not apply to government jobs in law enforcement, criminal or juvenile justice, work with children or vulnerable adults, government agencies handling finances, State Tax Commission, and state Department of Alcoholic Beverage Control.

Along with states, other Ban the Box laws were passed at the local level. ESR issued a City of Los Angeles Ban the Box Ordinance Infographic that outlines employment requirements and impact of the Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) that took effect January 22, 2017. The FCHIO requires employers in Los Angeles with 10 or more employees to remove the question on employment applications that asks applicants about past criminal records and follow several other requirements.

A class action lawsuit filed in a New York federal court on August 4, 2017, could be the first of its kind to challenge alleged violations by employers of a New York City Ban the Box law called the Fair Chance Act (FCA). The lawsuit claims the defendants “used flawed and discriminatory criminal history screening policies and practices” to deny employment to otherwise qualified job applicants in violation of the Ban the Box law, according to a press release from employment law firm Outten & Golden LLP.

Some employers are taking a proactive stance with Ban the Box. On October 4, 2017, job search website Glassdoor announced that it has “doubled down on its commitment to giving those with a criminal record a fair chance” by updating its Terms of Use to prevent employers from posting jobs that violate Title VII of the Civil Rights Act or the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the use of criminal records of applicants by employers in employment decisions.

Richard Bronson – a former partner at the brokerage house Stratton Oakmont profiled in the 2013 film “The Wolf of Wall Street” who served 22 months of jail time for securities fraud – is the founder and CEO of a for-profit job placement company called 70MillionJobs.com that connects ex-offenders like him with criminal records to job opportunities. “Having lived with hundreds of men in prison, I observed that as people they were no better or worse than those I knew on the outside,” said Bronson.

A study released by the National Employment Law Project (NELP) in 2011 estimated that approximately 64.6 million ex-offenders in the United States – more than one in four American adults – have a criminal record. NELP, a nonprofit organization supporting low-wage workers and the unemployed, has since revised that number up to 70 million people. NELP offers employers up to date information at the “BAN THE BOX: U.S. CITIES, COUNTIES, AND STATES ADOPT FAIR HIRING POLICIES” page on the NELP website.

To help employers comply with EEOC Guidance on criminal records and Ban the Box laws, the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute developed a report entitled “Best Practice Standards: The Proper Use of Criminal Records in Hiring.” ESR CEO Attorney Lester Rosen acted as a consultant in the development of this report that outlines best practices for employers to use to comply with Title VII and anti-discrimination laws.

“ESR is a long time supporter of the Ban the Box approach in order to provide all applicants with a second chance since a past criminal record should not serve as an early knock-out punch before they have the opportunity to compete fairly based on their qualifications and ability to perform the job,” says Rosen, who wrote a complimentary whitepaper entitled “Ten Critical Steps for Ex-Offenders to Get Back Into the Workforce” to help applicants who risk not finding jobs if they lie or tell the truth about their pasts.

“ESR supports a hiring process that relies on giving each applicant an Individualized Assessment rather then relying just on a past criminal mater. By automatically eliminating applicants with a past criminal matter without any further inquiry, employers may not only lose a potentially qualified applicant, but also risk engaging in discriminatory practices,” adds Rosen, who also helped ESR create a “Ban the Box Information Page” to provide employers with news, resources, and legal updates about the Ban the Box movement.

Employment Screening Resources (ESR) – a leading global background check firm headquartered in the San Francisco, California area – will release the 11th annual “ESR Top Ten Background Check Trends” of 2018 via the ESR News Blog during December of 2017. The complete list of emerging and influential trends in the background screening industry for the coming year as chosen by ESR will be available in January of 2018 on the ESR website at https://www.esrcheck.com/Tools-Resources/ESR-Top-Ten-Background-Check-Trends/.

ESR Webinar on Top Ten Background Check Trends for 2018

Employment Screening Resources (ESR) founder and CEO Attorney Lester Rosen will host a live webinar entitled “ESR Top Ten Background Check Trends for 2018” that will take place on Wednesday, January 17, 2018, from 11:00 AM to 12:00 PM Noon Pacific Time. To register for the complimentary webinar from ESR, which will acquaint employers and Human Resources (HR) professionals with emerging and influential trends in the background screening industry, please visit https://attendee.gotowebinar.com/register/6841084769383752449.

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.

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