Will the Ban the Box Laws Help the Employer or Candidate?
While it is obvious that those candidates with a criminal history may benefit from the Ban the Box laws that are trending in the United States, the benefits to employers are less clear. Most States implementing a Ban the Box law do not require employers to forego the criminal background check. Instead, they require the background check to be pushed later in the hiring process. Typically after a conditional offer has been made. New Jersey’s Opportunity to Compete Act specifically states “that many individuals with prior criminal histories pose no greater risk of future criminality than do people with no criminal history and are equally qualified, reliable, and trustworthy candidates for employment.” If employers follow this advice, it would suggest that employers would have a larger pool of candidates from which to select from and hire.
For Employers that currently conduct criminal background checks prior to making a job offer, limiting criminal background checks to candidates who have received and accepted offers of employment will reduce spending on criminal background checks. However these savings will be more than offset by the increased number of interviews and job offers that will need to be rescinded as a result of applicants who become disqualified based on their criminal histories. Employers will also see increased costs in complying with these regulations since many states, like New Jersey, provide specific rules, procedures and forms that must be followed and completed in order to rescind an offer of employment based on a criminal background check. Although not required under the NJ Law, many employers may choose to delay filling an open position with another qualified candidate who has passed the background check until the initial candidate has had the requisite time provided under the law to respond and challenge the employer’s decision to rescind their employment offer.
Can An Employer Withdraw an Offer After the Criminal Background Check?
Yes. Employers are not required to hire someone who is no longer qualified as a result of their criminal history. It is important to note that if an employer wants to rescind an offer to an individual after the criminal background check has been completed, employers must follow the guidelines provided by the respective governing authority, whether Federal, State and/or Municipality. Each governing authority is going to have its own set of procedures and rules for an employer to follow. For instance, in New Jersey, a candidate must receive written notice of an offer withdrawal from the employer and be provided ten days to respond with any additional information or evidence. A specific form is provided for employers to use.
State and local legislation does not override any existing federal employment laws. State and local laws complement Federal laws. Thus, if you are an employer in a state or municipality that does not have a “Ban the Box” law, you still need to follow Federal laws regarding rescinding offers of employment.
What should Employers do to Comply with “Ban the Box” laws?
Review your State and Local laws requiring the use of criminal historyinformation for the purpose of making a decision to hire or not hire.
Eliminate language in your job ads that suggests aperson with one or more crimes, or who has been arrested, is not eligible for your job.
Eliminate questions regarding convictions, arrests and crimes from your job application.
Train hiring managers and recruiters to avoid asking about applicants’ criminal histories until an offer of employment is made.
Review your policies regarding how offers of employment will be rescinded and ensure you have clear guidelines as to how felonies and misdemeanors will be evaluated in order to determine if they are permissible or disqualifiers for each unique job.
When in doubt consult your labor attorney before acting.
There is a sweeping trend of new employment laws surfacing around the United States that will require employers to delay any knowledge of a candidate’s criminal history until it has been determined that the candidate has met all other requirements of the job. Employers who currently conduct criminal background checks prior to extending a written job offer may now need to change their workflow and interview candidates who are otherwise qualified. Of course, exceptions do apply for positions that require licensure and certification.
This “Ban the Box” trend has been adopted by at least 13 states as well as local municipalities that have passed legislation that requires employers to remove any questions about a person’s criminal history on their employment applications. Additionally, employers may not publish employment advertisements indicating that a person with one or more crimes, or has been arrested, is not eligible for a job. New Jersey has become one of the latest states to implement its version of the law, which goes into effect on March 1, 2015. In addition to the 13 states, local municipalities including San Francisco, Washington D.C., Seattle, Philadelphia, Baltimore and Buffalo have all implemented similar laws.
What Caused “Ban the Box” Laws to Start Taking Shape?
Most job applications require candidates to indicate if they “have been convicted of any criminal offense in the past.” If the candidate has been convicted of a criminal offense, the job application will require the job seeker to describe the nature of the offense, date of the offense, location of the court that processed the offense and the outcome. Many Recruiters, Human Resource Managers and Hiring Managers also ask questions about a job-seeker’s criminal history during the interview process. As a result of inquiries regarding job seekers’ criminal histories, many potentially qualified candidates get passed up and are eliminated before they have had an opportunity to fully demonstrate their qualifications to successfully perform the job. Individuals with criminal histories who are trying to re-enter and become a positive contributor to society have found it increasingly difficult to change his or her life. “Ban the Box” laws are designed to eliminate employment discrimination for those with criminal histories.
New Jersey’s “Opportunity to Compete Act”
New Jersey’s version of the “Ban the Box” law is called the Opportunity to Compete Act and will go into effect on March 1, 2015. The Act is considered more of a procedural practice and does not prevent employers from conducting background checks. It does delay the criminal background check until later in the hiring process so as to encourage employers to focus on the candidate’s skills and qualifications for the position. The candidate’s criminal history becomes secondary information once the employer decides to move forward with a particular candidate due to his or her skills and qualifications.
New Jersey’s Opportunity to Compete Act does not force an employer to hire anyone with a criminal record or an unqualified job-seeker. To sum it up, this Act asks employers to consider an applicant’s complete application and give someone who may have changed his or her life around the opportunity to get hired by an employer. Employers who have 15 or more employees must wait until after an applicant has received a conditional offer from the employer, in order to ask about and conduct an investigation of the candidate’s criminal history.
How Will ‘Ban the Box’ Affect Employers Recruiting Practices?
It is apparent that the Opportunity to Compete Act and other ‘Ban the Box’ legislatures will change how employers recruit, their budgets and hiring timelines. The WorkPlace Group will take a look at what you, as an employer, should know about ‘Ban the Box’ acts as we move into 2015. Stay tuned for Part II to learn what actions, if any, you should prepare for.
When searching for the ideal candidate for a position, we need a way to evaluate their skills and experience. The common practice for this evaluation is through an interview. However, most candidates do not know that interviews are considered “tests.” As such, they should comply with fair testing standards. One aspect of these standards suggests that test takers should be made aware of the best way to maximize their score. In other words, test takers should be instructed on how they earn and lose points. For example, on the Wonderlic Personnel Test, a popular cognitive ability test, you earn one point for each correct answer and there is no penalty for guessing. Wonderlic also tells you that questions become progressively harder, so you are better off spending time answering early questions, which are easier to answer correctly, than later questions, which are more difficult to answer.
The reason testing standards suggest telling test takers the best strategy for maximizing their test score is because the test should assess only the variables it was designed to validly measure. Unless the test is designed to measure “test taking” skills, it should provide crystal clear instructions on how to do your best. Interestingly enough, when it comes to interviews, candidates rarely ask about the type of interview they will complete or how they will be evaluated from the information obtained during the interview. It’s a mistake not to ask for this information. Knowing the interview type helps you answer questions and display behaviors in a way that best allows the employer to predict your job success prior to hiring you. In addition, you should know how this prediction of your potential job success will be made.
As a recruiter, do you perceive interviews to be tests or is it less abstract than that?