'Ban the Box' legislation: Coming to you soon

March 22, 2016
Ban the Box. What in the heck is that?

Rebecca Boartfield

Tim Twigg

Ban the Box. What in the heck is that? Ban the Box refers to a campaign to ban the check-box on most applications that basically asks, "Have you ever been convicted of a felony?"

The overwhelming evidence is that individuals with a criminal history will be automatically weeded out in the recruiting process, usually after simply checking the box on the application, regardless of what they did, when they did it, or how they might have changed their lives since they did it.

Research shows that the existence of a criminal record can reduce an employer's interest in an applicant by approximately 50%. Also, according to the Justice Department, approximately 60% to 75% of former inmates cannot find work within the first year out of jail. This can be a significant limiting factor for a rehabilitated person who is trying to reenter society.

Additionally, when Caucasian and African-American applicants both have records, employers are far less likely to call back an African American applicant than a Caucasian one. As a 2009 reentry study in New York City found, "The criminal record penalty suffered by Caucasian applicants (30%) is roughly half the size of the penalty for African Americans with a record (60%)."

These reasons are the foundation for the Ban the Box legislation that is gaining steam throughout the nation. At the time this article was written, roughly 100 cities and counties and 19 states had implemented some version of the law. Furthermore, President Barack Obama issued an executive order to all federal agencies to "ban the box" in late 2015.

Ban the Box laws are an effort to give individuals a "fair chance" before the stigma of a criminal record affects a hiring employer's judgment. While all the laws vary, in general, they do both of the following:

• Restrict application questions

• Require a waiting period before employers may inquire about criminal pasts

Application restrictions

Before these laws went into effect, a common question on applications was, "Have you ever been convicted of a crime?" The person completing the application was required to check the appropriate box but was given no ability to explain when the crime occurred, what it was, or how he or she had been rehabilitated since.

Odds are the person who checked "yes" was automatically screened out and disqualified without regard to any actual qualifications for the job beyond the criminal past. While this seemed logical and reasonable, this process may be leading to discrimination and unnecessarily harming former inmates.

For the cities, counties, and states that have implemented Ban the Box laws, this question must now be removed from the application entirely. No longer can an employer require an applicant to inform the prospective employer of his or her criminal past during the application for employment stage of recruiting.

Criminal past inquiry waiting period

With the criminal conviction question removed, ideally all individuals can be screened regarding their qualifications for a job. If the individual passes initial screening, then he or she moves forward in the recruiting process.

At some point in the next phases of recruiting, an employer can inquire about the individual's criminal past, or can conduct a full background check on the person. When this can take place varies from one state to the next. In many cases, inquiries into the person's criminal past can happen during the interview. In some cases, these cannot happen until the employer is actually interested in hiring the applicant and provides a conditional offer of employment. (Call us for a sample letter.)

Exceptions

In nearly every law, there are exceptions:

• If federal, state, or local law requires the consideration of an applicant's criminal history

• Law enforcement agencies

• A criminal justice system employer

• An employer seeking a nonemployee volunteer

Conclusion

Regardless of whether your city, county, or state has enacted Ban the Box legislation, you might want to follow the rules laid out here and get ahead of the game. More than likely this will be happening everywhere in the not-too-distant future. Also, when reviewing criminal histories, remember to take job-relatedness, length of time, and any possible rehabilitation into consideration before summarily dismissing someone who could end up being a great employee. You may be surprised what you find out there.

Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.

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