A few weeks ago we reported that Illinois enacted legislation limiting the ability of private employers to inquire about and conduct criminal background checks on job applicants. The so-called “ban-the-box” movement continues with the passing of similar laws in Washington, D.C. and New Jersey.
Washington, D.C - Fair Criminal Records Screening Act
In July, the District of Columbia Council unanimously approved Bill 20-642, otherwise known as the Fair Criminal Records Screening Act. Under the Act, employers are barred from inquiring about an applicant’s criminal conviction record until a conditional offer has been made. The bill next heads to Mayor Vincent Gray for signing and then to Congress for approval.
New Jersey - Opportunity to Compete Act
On August 11, Governor Chris Christie signed the Opportunity to Compete Act (Act). The Act, which takes effect March 1, 2015, prohibits employers with 15 or more employees from inquiring about applicants’ criminal convictions on job applications. Employers are also prohibited from asking about criminal convictions until the first interview has been conducted. The Act does not apply to applicants who are already required by law to submit to criminal background checks or applicants for positions in law enforcement, corrections, the judiciary, homeland security, or emergency management. The Act is also inapplicable where a criminal history precludes a person from holding a position by law. There is no private right of action and enforcement is under the sole purview of the Division of Labor and Workforce Development. The Act provides for civil penalties of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
Ban-the-Box Expanding to Other States
Illinois, New Jersey, and Washington, DC are the latest jurisdictions to join the ever-growing ban- the-box movement. Four other states – Hawaii, Massachusetts, Minnesota, and Rhode Island – have ban-the-box restrictions for private employers. California, Colorado, Connecticut, Delaware, Maryland, Nebraska, and New Mexico have similar legislation for public employers. More than 50 cities have also passed such restrictions, including Atlanta, Austin, Baltimore, New York City, Philadelphia, San Francisco, and Seattle.
According to the National Employment Law Project, 25% of Americans have some type of criminal record. The purported goal of ban-the-box laws is to provide these individuals with a fair chance at entering (or reentering) the workforce. The movement most likely gained momentum following the 2012 release of the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. The EEOC has taken the position that hiring policies that flatly exclude individuals with criminal records may violate Title VII because racial minorities are statistically arrested and convicted at higher rates.
According to the EEOC’s guidelines, employers must consider the nature of criminal conduct, its relationship to an applicant’s potential job functions and work environment, and the individual’s potential for rehabilitation, such as age at the time of conviction and how much time has passed since the conduct in question. The EEOC has endorsed ban-the-box measures as an employer best practice.
In addition to issuing guidance on the matter, the EEOC has made a point of bringing enforcement actions against employers for their use of criminal background checks. Most recently, the Northern District of Illinois granted the EEOC’s motion to compel the production of documents and data concerning Dolgencorp’s criminal background check policies. U.S. Equal Employment Opportunity Commission v. Dolgencorp, LLC d/b/a Dollar General, No. 13- cv-04307, 2014 WL 3734361 (N.D. Ill. July 29, 2014).
Although previous efforts by the EEOC have been notably thwarted, this case and the national efforts for ban-the-box legislation, illustrate the importance of this evolving area of law. Employers should review their job applications and hiring procedures to ensure compliance and to avoid becoming a target.