Last week, President Obama announced yet another executive order, this one removing questions about an applicant’s criminal history from applications for federal jobs. Similar laws have been passed in cities and states across the country, including New Jersey, where the President visited a federal detention center to announce the new order. Details on the announcement can be found here.
This move is the latest in a legislative effort that is clearly making some gains across the country. Nineteen states have passed ban the box legislation, and over 100 cities or counties have passed similar laws. This hodgepodge of laws is a nightmare for large employers who seek to have one uniform employment application across the country. Many have thrown in the towel and removed the question altogether to avoid the inadvertent use of an unlawful application in a jurisdiction where the question is disallowed.
One important reminder about this discussion is that these ban the box laws do not restrict an employer’s right to conduct background checks and deny employment to convicted felons. The stated purpose is to simply remove the question from the application as a screening tool, and delay the point at which the employer learns of the criminal offense (hopefully after meeting the applicant and forming a favorable impression). In my experience, however, removing the question on the application eliminates the opportunity for an applicant to “get ahead” of a background check by honestly disclosing a conviction and addressing it “head on.” Likewise, it takes away an opportunity for employers to test the honesty of an applicant to see if they will voluntarily disclose a conviction. Many employers are more apt to hire applicants with convictions if they are honest about their history, and this law will take away that opportunity.
Lastly, these laws take away a not so insignificant tool for the defense of employment litigation. Employers have long been able to raise after acquired discovery of dishonesty on the application as a defense to a wrongful termination case. In other words, if an employer discovers in litigation that an employee lied about his or her criminal history, and the history would have disqualified the employee from being hired, the damages available in the case can be reduced or cut off substantially. If the question is removed from applications, employers now have the entire burden for checking criminal background and the employee can simply remain silent without consequence (and hope the employer misses something).