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September 18, 2020 | From the blogUncategorized

Banning the Box: Enforcing Fair-Chance Employment Policies

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You may have encountered the box on a job application that asks you to indicate whether or not you have ever been convicted of a crime, incarcerated or arrested.  That question is now illegal in a majority of U.S. states and localities.

What Does Ban-the-Box Mean?

“Ban-the-box” refers to removing the box on job applications that request an applicant to reveal conviction and arrest records.  Ban-the-box laws govern whether and when employers are allowed to ask about a job applicant’s criminal record in the hiring process.

On a national scale, an estimated 70 million people, or nearly one in every three adults, have a prior arrest or conviction record that may negatively affect their ability to find employment.  Requesting this information on job applications is but one of many traditional hiring practices that play a major role in determining whether an employer would move forward with a job application and act as significant barriers for qualified workers with criminal records to realize their potential in the job market.

Ban-the-box regulations demonstrate the growing trend of legislative measures in response to the fair chance hiring movement, which calls for employers to extend their candidate pool to include qualified, diverse talent with a wide range of experiences, instead of enforcing blanket restrictions based on criminal records.  The motivation behind this movement is that removing hiring barriers and providing fair employment opportunities to formerly incarcerated individuals would benefit communities, increase public safety and contribute to the economy overall. 

Contrary to the common misconception, ban-the-box laws do not prohibit employers from running background screening programs in compliance with industry standards.  Instead, the laws are implemented with the goal of preventing employers from excluding certain applicants solely on the basis of their criminal history in the initial stages of the hiring process.   Furthermore, employers are exempted from ban-the-box laws where authorized or required by applicable law.  Although the specifics may vary between jurisdictions, the ban of pre-employment inquiries into an applicant’s criminal history generally does not apply to safety-sensitive industries, including law enforcement-related agencies, schools, as well as providers of direct services specific to children, young adults, senior citizens or the disabled.

Nationwide Legislative Reforms Change Hiring Practices

Currently, most states and over 100 localities around the country have adopted some form of fair-chance or ban-the-box policy that aims to ensure a fairer process in the employment decision-making process in the public sector, by requiring the removal of criminal history questions from job applications.  Some of these jurisdictions, but not all, extend ban-the-box rules to private employers.

Fair-chance reform is continuing to expand.  On December 20, 2019, as part of the National Defense Authorization Act, a ban-the-box bill was passed that will take effect in 2021 to allow individuals with criminal records a fair opportunity of obtaining employment in the U.S. federal government and with federal contractors.  With the exception of positions related to law enforcement and national security duties, positions requiring access to classified information and other positions as required by law, the federal government and federal contractors can no longer ask about the criminal history of a job applicant before extending a conditional offer.  This is a significant step in ensuring that an individualized rather than a one-size fits all hiring approach will be implemented for individuals with criminal histories to have a better chance at finding work in the federal government or with federal contractors.

New York Jurisdictions Lead the Way in Fair Chance Hiring

Effective August 25, 2020, Suffolk County will become the fifth New York jurisdiction to impose ban-the-box regulations that restrict pre-employment inquiries into a job applicant’s criminal history, along with New York City, Buffalo, Rochester, Suffolk and Westchester County.  Meanwhile, New York City’s Fair Chance Act is one of the most applicant-protective ban-the-box laws in the country.  The Fair Chance Act prohibits most employers in New York City, public and private, to inquire into the criminal record of job applicants before making a conditional offer of employment.

Under New York City’s Fair Chance Act, the employer cannot ask about the applicant’s criminal history, nor can the employer mention arrests, convictions, or having a clean record in any job ads, applications or interview questions.  Only after having extended a job offer may the employer consider an applicant’s criminal record.  If the employer wants to revoke the offer on the basis of the applicant’s having a criminal record, the employer must communicate the situation to the applicant by providing a “Fair Chance Notice.”  The employer can only decide to not hire an applicant with a criminal record for one of two reasons: because a direct relationship exists between the applicant’s conviction and the job in question; or because the conviction history creates an unreasonable risk to people or property in connection with the job.  The employer must provide the applicant its reasoning for revoking the offer in writing, along with a copy of the background check conducted.  The employer must also hold the job position open to three business days so that the applicant may have adequate time to respond to the employer’s concerns regarding their criminal record.

While ban-the-box laws in Buffalo, Rochester, Suffolk and Westchester County are not as comprehensive as New York City’s Fair Chance Act, they effectively delay background checks and prohibit an employer from considering a job applicant’s criminal records until after the application has been accepted and after the employer has conducted an initial phone or in-person interview.

Employers in violation of ban-the-box policies may be subject to fairly substantial liability.  For instance, a class action complaint was filed in the United States District Court for the Southern District of New York, alleging that online grocery store FreshDirect was categorically excluding job applicants with certain types of criminal records, in violation of New York laws barring race and other discrimination.

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Photo by Markus Winkler on Unsplash

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