the state of hiring: how to comply with "ban the box" and other hiring laws

@HR_direct@Eric_B_Meyer#BantheBox

The State of Hiring: How to Comply with “Ban the Box” and Other Hiring

LawsPresented by Eric B. Meyer, partner at Dilworth Paxson LLP

@HR_direct@Eric_B_Meyer#BanTheBox

About Eric

• Partner in Philadelphia-based law firm, Dilworth Paxson LLP

• Chair of #SocialMedia Practice Group and member of Labor & Employment Practice Group

• Publisher of top labor and employment law blog, www.TheEmployerHandbook.com

• Volunteer mediator for Equal Employment Opportunity Commission (EEOC)

http://www.theemployerhandbook.com/


Learning Objectives

• History and overview of ban the box legislation

• EEOC guidance beyond state and local anti-discrimination laws

• Additional mandatory language with state job applications

• Best practices for fair hiring and reduced risk with questionable candidates


What is Ban the Box?


• Refers to criminal history question on job applications:

Have you ever been convicted of a crime? YES NO

• Question now banned in 16 states and 100+ cities

• Several large retailers have also adopted these practices

What is Ban the Box?


• Hawaii first state; Philadelphia first city

• Activist group coined “ban the box” phrase in early 2000s

• Now a common reference to any criminal history restrictions

History of Ban the Box


Does Your State Ban the Box?


Why Ban the Box Exists

• Helps reduce barriers for individuals with a criminal arrest or conviction seeking employment– 1 in 3 American adults has a criminal arrest or

conviction

• Originally only applied to public employers, now spreading to private employers

• Growing quickly to include more states


Role of the NELP

• National Employment Law Project (NELP)

• Promotes “fair chance hiring” policies

• Message to focus on qualifications, not past record


What Ban the Box Means for Employers


After the Application

• Not required to hire those with a criminal record

• Can still conduct legal background checks

• Delay criminal history inquiry until later in the hiring process:– Interview– Job offer

• Consistency is key: multi-location operations affected in one area should apply policies to all areas


Security-Sensitive Positions

• Background checks still required for:– Law enforcement agencies– Financial institutions– School districts– Child care– Jobs involving the disabled, elderly or

vulnerable


EEOC Guidance

• Issued a 2012 directive that criminal records can create the potential for hiring discrimination– “Disparate impact”: Blacks and Latinos are

arrested at a rate 2 to 3 times their proportion to the general population

• Use caution, regardless of existing state or city ban the box laws

• Never refuse a candidate just because of a criminal conviction


A Balanced Approach

• No “one size fits all” practice or strategy for every jurisdiction

• Three key actions:1. Determine if criminal history inquiry is

necessary2. Be consistent, especially multi-location

employers3. Use state-compliant job applications


Compliant Job Applications & Hiring Tools


• Use customized job application that doesn’t ask about criminal history

• State-compliant job applications satisfy local laws while protecting you from weak or high-risk candidates

• Include other legal disclosures and questions to safeguard your business

State-Compliant Job Applications


State-Specific Legal Disclosures

• Special language may be necessary:– Smoking– Lie detector test– Volunteer work– Driver’s license – Social Security number

• Multiple disclosure requirements for California and Maryland


Criminal Background Checks


Criminal History Discussions

• Only discuss during the interview or employment offer

• Ask about convictions, not arrests

• Sealed or expunged records off limits in some states

• Let candidates explain facts and circumstances of conviction


Formal Background Checks

• Should be conducted later in the hiring process

• Help you more carefully evaluate candidates and identify red flags

• Must get applicant’s consent, per Fair Credit

Reporting Act (FCRA)


Legal Criminal Background Checks

• Only work with FCRA-compliant agencies and services

• Be careful with online services

• Get applicant’s written authorization when collecting additional information needed for background checks

• Costs outweigh impact of high-risk hires– “Negligent hiring” claims


How to Review a Criminal Background Check

• Case-by-case basis

• Consider:1. Time since the conviction2. Nature of the offense3. Nature of the job4. Any criminal history restrictions

• Must have a clear connection why criminal record makes the applicant unfit for the job


Let the Applicant Respond

• Allow applicant an opportunity to explain facts and circumstances

• Background checks may contain inaccuracies or errors

• Before rejecting a candidate, give them notice and a copy of their report


Final Notes


Final Notes• Ban the box legislation growing for public and

private employers

• Delay any criminal history inquiry until interview or job offer

• Criminal background checks are allowed, but must follow FCRA

• Always consider nature of offense, time since occurrence and relationship to job


Thank you! Questions?

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the state of hiring: how to comply with "ban the box" and other hiring laws

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