Across the nation, legislation limiting the extent to which private employers may request and consider applicants’ and employees’ criminal histories is gaining momentum. Commonly referred to as “ban the box” initiatives, original legislative efforts sought to eliminate the “box” on employment application forms requesting applicants to disclose whether they had ever been convicted of a crime. The idea was that by eliminating the criminal history question up front, applicants would at least get a “fair shot” at consideration based on their qualifications. Employers could, however, still ask applicants about, conduct background checks for, and make selection decisions based on criminal history, provided such screening occurred at a later stage in the hiring process.
Current “ban the box” initiatives often go farther, sometimes limiting how an applicant’s criminal history can be considered at any hiring stage. The following is a summary of several developments this year that impact private employers:
On August 11, 2014, New Jersey enacted a “ban the box” initiative that will go into effect on March 1, 2015. Under the new law, employers need not wait until an offer is extended to make criminal background inquiries. However, employers may not ask about criminal history until after the employer has conducted an interview, determined the applicant is qualified, and selected the applicant as its first choice to fill the position. Even then, the law prohibits most employers from: (1) advertising their prohibition on hiring applicants with criminal backgrounds; (2) considering past arrests that did not result in a conviction; (3) considering disorderly conduct violations when the conviction occurred or incarceration ended more than five years before the job application; and (4) considering certain other crimes when the conviction occurred or incarceration ended more than 10 years before the job application. The state law preempts similar local laws, such as the local “ban the box” ordinance in Newark, New Jersey.
Illinois’s “ban the box” law will go into effect on January 1, 2015. The Illinois Job Opportunities for Qualified Applicants Act prohibits most employers in the state from inquiring into or considering an applicant’s criminal record until the employer has determined the applicant is qualified and either (1) has notified the applicant that he or she has been selected for an interview, or (2) if there is no interview, has extended a conditional offer of employment.
Baltimore “banned the box” effective August 13, 2014. Baltimore’s law applies to all employers who employ at least 10 full-time employees in Baltimore City. Until after a conditional offer of employer has been extended, a covered employer in Baltimore may not (1) require an applicant to disclose or reveal whether he or she has a criminal record or has been the subject of a criminal accusation, (2) conduct a criminal background check, or (3) otherwise make inquiries regarding the same.
Effective August 14, 2014, San Francisco's law limits employment inquiries regarding an applicant’s criminal background and prohibiting employment action based on some criminal histories. The Fair Chance Ordinance applies to employers with operations in San Francisco that employ 20 or more persons, regardless of location. It prohibits inquiries about certain aspects of an applicant’s or employee’s criminal history until after the first live interview or after a conditional offer of employment has been made, but only if the employer provides written notice to the applicant in the form provided by San Francisco’s Office of Labor Standards Enforcement. If the employer then intends to make an adverse decision based on the individual’s employment history, it must also provide a copy of the history to the applicant and time to correct any alleged inaccuracies in the report.
As a result of these and other similar “ban the box” initiatives, employers who use form applications, both online and paper, across multiple jurisdictions will want to review the content of such materials to determine the extent to which the forms ask questions that are related to criminal background. Depending on the law of the locations where operations and hiring occur, employers may also want to consider (a) removing criminal history questions for all applications and sites, or (b) creating tailored applications (and procedures) to be used in certain jurisdictions.
For questions regarding the status of “ban the box” laws in your area of operation or assistance in ensuring day-to-day compliance, please reach out to your McGuireWoods contact, the authors or any other member of the firm’s labor and employment group.