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In 2004, a grassroots movement called “Ban the Box” was created. In the decade since the start of the campaign it has picked up steam and many states and cities are considering passing or have already passed a Ban the Box resolution. What is it? And what do employers need to know?
Ban the Box urges employers to remove questions about past criminal convictions on job applications so that people can be judged on their qualifications and skills first. The concern is that it is difficult for people with old and minor past convictions to secure a job.
Proponents of Ban the Box say removing criminal conviction questions from applications will keep people off the street, can create safer communities and reduce poverty. They argue that ex-offenders who can’t find a job are more likely to re-offend. A 2011 study found that employment was the single biggest factor in reducing recidivism. There is also financial benefits to hiring those with criminal records. Another study by economists found that having the formerly incarcerated and those with felony records out of the workforce reduced the national gross domestic product by $8 billion. Other analysis found that having these individuals back to work increased income tax revenues and sales tax revenues significantly, all while saving the state money by keeping these individuals out of the criminal justice system.
According to estimates, 70 million people (roughly 1 in 4 people) in the United States have some sort of criminal background. Each year, 700,000 people reenter our communities and workforce from incarceration. Many employers, both public and private, are naturally hesitant to proceed further with an applicant who admits to a criminal background. One study found that under 9 percent of employers surveyed would be open to hiring an applicant with a record. The problem is that many times the incident was many years ago or not relevant to the job they are applying. The argument goes that a past mistake should not be indefinitely held against a person, precluding them from employment.
Currently, these campaigns have been successful in 100 cities, counties and states resulting in some form of fair chance hiring practices in places such as Colorado, Illinois, New York City, Seattle, Newark, and California. This trend does not seem to be slowing, with more and more organizations getting behind the movement. In 2013 and 2014, eight states alone passed legislation. The U.S. Equal Employment Opportunity Commission has even endorsed removing the conviction question from job applications as a best practice in 2012.
If you live in an area that has passed fair chance hiring practices, does this mean you can no longer background check applicants? No. In fact, depending on the nature of the job, a background check may even be required. What this means is you first have to evaluate candidates on their skills and experience. The background check is delayed until later in the hiring process to give applicants a chance to sell themselves and their abilities first. Additionally, whether you live in a Ban the Box area or not, you should still be conducting written applications, checking references, and having a face to face interview with your applicant.
Even if you don’t live in a Ban the Box area, there are still some federal laws and rulings around background checks you need to know. There are two big ones to pay attention to: equal employment opportunity protected classes and the Fair Credit Reporting Act (FCRA). The federal equal employment opportunity protected classes include race, national origin, color, sex, religion, disability, genetic information, and age. Each state may enlarge this group to include other classes, so make sure you are aware of your particular states protected classes. When conducting background checks, make sure you are checking people across the board. For example, you can’t target one race or age for background checks. Additionally, you have to apply the same standards to every candidate. So if you exclude a male for one reason, you also need to exclude a female for the same reason. Furthermore, be aware that certain background problems may be more common among people of a certain protected class. As an employer, you should not use a practice that excludes people with certain criminal records if the practice significantly disadvantages individuals of a particular race or protected class. Finally, also be prepared to alter your policy if a problem revealed during a background check was caused by a disability (a protected class).
FCRA has a number of different things to be aware of. Before even conducting a background check, you have to tell the applicant you might use the information for employment decisions. This must be in writing and a stand-alone document—no putting it directly in the application. You also need to get written permission to do the background check. If you decide not to hire an applicant based on a background check, then you have to give the applicant notice and a copy of the report you used to make your decision and a copy of their rights under FCRA. Additionally, you also have to provide the name, address, and phone of the company you got the report from and that they have the right to dispute the accuracy of the report.
If you currently do background checks, make sure you are following the federal, state, and even local law. Your background check company should help keep you aware of any law changes, but it’s wise to consult either us or your attorney to make sure your hiring practices in regards to background checks are legal.