To add to our previous posts on the “Ban the Box” trend happening across states and municipalities we wanted to share this interesting article from the Wall Street Journal (WSJ), “Perform Criminal Background Checks at Your Peril.” The WorkPlace Group has been following “Ban the Box” trends because these laws will continue to affect the hiring process of employers. In addition to States like New Jersey, Illinois, California, Minnesota and Colorado, the Equal Employment Opportunity Commission (EEOC) is also implementing “Ban the Box” policies at the national level. Should the EEOC continue in this direction, “Ban the Box” laws could come to affect all U.S. employers.
What is the EEOC Saying About Background Checks?
The EEOC has started to use Title VII of the 1964 Civil Rights Act to sue businesses for a wide range of hiring practices that negatively impacted minorities. An example happened in 1989 when the EEOC sued Carolina Freight Carrier Corp. for refusing to hire an Hispanic man as a truck driver. This man had a history of multiple arrests and served 18 months in jail for larceny. The U.S. District Judge Jose Alejandro Gonzalez, Jr. ruled against the agency saying that the “EEOC’s position that minorities should be held to lower standards is an insult to millions of honest Hispanics.” As Judge Gonzalez stated, “a rule refusing honest employment to convicted applications is going to have a disparate impact upon thieves.”
In April 2014, the EEOC unveiled the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” These guidelines state that criminal record exclusions have a disparate impact based on race and national origin. If you have been following The WorkPlace Group’s blog posts, then this should sound familiar. This is the long version of “ban the box.”
Where is the Connection Between Minorities and Ban the Box
The WSJ cites statistics indicating that the crime rate of certain races is exponentially higher than that of other races. These statistics form the basis for EEOC’s concern and recommendation to employers to change their application process. A former EEOC General Counsel stated in testimony to the U.S. Commission on Civil Rights that employers could be considered guilty “of race discrimination if they choose law abiding applicants over applicants with criminal convictions.” (According to the same WSJ article) A considerable challenge for employers will be complying with EEOC guidelines even if they are not in a state with a “ban the box” law.
How Will the EEOC’s New Guidelines Really Affect Minorities?
The WSJ describes several studies that show fewer minorities are hired when employers conduct background checks in comparison to employers who don’t. The WSJ is suggesting that EEOC’s guidelines and stance on this topic may actually hurt the employment of those minorities it is purposely trying to protect.
“Ban the Box” Advice for Employers
Even if your state does not have a “ban the box” law currently, given the EEOC’s position on this issue, we recommend all employers delay inquiring or collecting any information on applicants’ criminal histories or conducting a background check until after an offer of employment has been extended.
We invite examples of how employers are changing their employment applications and selection process to comply with EEOC’s and State trends on “Ban the Box” legislature. We also welcome your questions as to how to best comply with this national trend.
For more information on how to ready your employment process for “Ban the Box” trends, please feel free to contact a WorkPlace Group Associate for assistance.
This is a continuation of How Will ‘Ban the Box’ Trends Change Recruitment Traffic: Part I of II from Monday, January 12, 2015.
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.
For recruitment assistance and help in ensuring a positive candidate experience for the truly qualified please contact us at https://www.workplacegroup.com/contact/
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.