Ban-the-Box” laws are aimed at prohibiting “yes/no” check boxes on housing and employment applications asking about prior arrests or convictions. According to studies, 1 in 4 Americans has an arrest or conviction on their record. The ban-the-box movement is aimed at removing barriers for those individuals who have been rehabilitated. Ban-the-box laws have seen an increase in support across the United States. Employers who are caught unaware or do not comply with these laws risk exposure to fines and penalties and becoming a target for individual and class wide lawsuits.
Currently, the vast majority of ban-the-box laws only apply to public employers. However, a growing number of state and local governments have passed ban-the-box laws that apply to private employers. As of the date of this client alert, private employer ban-the-box laws exist in the following states and cities (the hyperlinks provided link to the text of each law or ordinance):
- Rhode Island
- Buffalo, New York
- Newark, New Jersey
- Philadelphia, Pennsylvania
- Seattle, Washington
- San Francisco, California (for more information, see our Client Alert, "San Francisco Expands Its Ban the Box Ordinance to Apply to Private Employers").
In addition, other states and cities are considering ban-the-box legislation that would apply to private employers.
Although no ban-the-box law entirely prohibits inquiry into criminal history, the laws vary as to when employers can ask about criminal history. For instance, some employers can ask about criminal history any time after the initial application (Massachusetts). Others can ask after the applicant has been selected for an interview (Minnesota). Some ban-the-box laws do not permit inquiry until after a conditional offer of employment has been made (Hawaii and Newark).
Furthermore, ban-the-box laws vary in terms of what employers can ask applicants about. Some only allow inquiry into certain convictions and explicitly prevent employers from asking about non-conviction arrests or expunged records at any time during the hiring process. The laws also vary as to which industries or positions are exempt (such as positions in child care, health care, and financial institutions).
In addition to the above, many states limit the types of convictions that can be considered for employment purposes, such as prohibiting consideration of juvenile convictions or certain marijuana-related convictions in California, for example.
Because of the variety in these laws, it is a challenge for multi-state employers to comply.
Actions to Consider
Employers should examine if they operate in any states or localities which have ban-the-box laws. Employers doing business with any local governments should be aware that some cities have ban-the-box laws that extend to government vendors or contractors, including New York City, Detroit, and Pittsburgh.
Where ban-the-box laws apply, employers should take the following actions to minimize risk, comply with the laws, and avoid potentially significant fines and penalties:
- Determine what employers are prevented from asking about entirely, such as non-conviction arrests and expunged records;
- Review employment applications and remove or appropriately limit questions about criminal history; and
- Ensure hiring policies delay inquiry about criminal history until the relevant law permits such inquiry.
Multi-state employers should consider whether their particular company culture warrants adopting individualized employment applications for jurisdictions with ban-the-box laws, or whether to voluntarily adopt a nationwide standard form. Employers who wish to continue using a standard application for all locations, but want to retain a box or broader inquiry, may have to include a conspicuous disclaimer for applicants covered by ban-the-box laws.
Other Background Check Issues
In addition, employers should keep in mind how criminal background checks and credit checks are limited by Title VII, state laws, and the Fair Credit Reporting Act (FCRA).
In 2012, the EEOC issued guidance on employers’ use of criminal history, emphasizing that the use of conviction records to exclude applicants can disparately impact minorities. Since issuing this guidance, the EEOC has filed suit against several US employers, alleging that their criminal background check policies resulted in discrimination in violation of Title VII. Thus, even if employers are not affected by any ban-the-box laws, they should still consider this EEOC guidance and consider steps for applicants to explain convictions, permit individualized inquiries for particular positions and convictions, and eliminate policies that bar all individuals with convictions from consideration for employment.
Credit checks for hiring and employment considerations have also come under attack in recent years. While the US economy is recovering, many Americans were impacted by the recession with resulting bad credit. Laws restricting employers use of credit history for employment decisions are currently in effect in nine states (Colorado, California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington).
Employers should also understand their obligations under the FCRA when conducting background checks. The FCRA requires employers to notify applicants prior to conducting background checks, obtain applicants’ authorization to perform background checks, and provide a copy of the report obtained by the employer. Employers have a variety of other obligations under the FCRA before and after taking any adverse employment action due to the background check results (such as rejecting a job application or revoking an offer of employment). Because the FCRA provides for statutory damages up to $1,000 per violation, the potential for punitive damages, and the recovery of attorneys’ fees, plaintiffs’ attorneys have recently filed a wave of class action lawsuits alleging FCRA violations across the country. Employers should therefore ensure that they are in compliance with FCRA requirements. The FCRA and other data privacy laws were detailed in a previous Baker & McKenzie client alert, available here.
Ban-the-box laws are quickly growing in popularity. These laws restrict employers’ ability to ask about applicants’ criminal history. In order to avoid fines and penalties, lawsuits by rejected applicants, and potential adverse brand impact, employers should review their hiring practices to ensure compliance in jurisdictions with ban-the-box laws. In addition, to avoid EEOC investigation and costly class action lawsuits, all employers should determine if their hiring policies are in line with EEOC guidance and FCRA requirements.