September 09, 2015
Employers need to prepare for the next crusade from activist lawmakers: affirmative action for criminals. Some jurisdictions are adopting "Ban the Box" laws, which prohibit questions about an applicant's criminal record until after a conditional offer of employment has been made. The "box" these laws are referring to is the check box next to the question: “Have you ever been convicted of a crime?” As you probably know, it has been illegal for many years to ask applicants if they have ever been arrested because an “arrest” disqualification could have a disparate impact on minorities. Because an arrest is not proof of guilt, such a restriction makes more sense than a restriction against asking about criminal convictions.
Baltimore City – where my office was for many years - recently passed an ordnance, which will likely go into effect this year, forcing employers to postpone criminal background checks. Under the ordnance, an employer is prohibited from asking about a job applicant’s criminal record or performing a criminal background check until after it makes a conditional job offer. The Bill also prohibits discrimination or retaliation (e.g. refusing to hire an applicant because the applicant tells the employer that its question about his or her criminal record is illegal).
Once it has made a conditional offer to the applicant, the employer under the Bill may explore the criminal record issue, including requiring the applicant to pass a criminal background check prior to being hired. If it learns of information during this time that raises concerns about the applicant’s fitness for the job, the employer has to notify the applicant and give him or her a chance to respond. The employer is not required, however, to hire an applicant with a criminal record. In other words, this law pushes back the timing of when employers may consider an applicant’s criminal record; it does not forbid them from considering it at all.
These “ban the box” bills, however, frequently run afoul of government requirements that criminal background checks be done for certain workers. In the Baltimore City bill, there are notable exceptions to the Bill’s requirements. First, employers that provide services or direct care for children and/or “vulnerable adults” (which the Bill defines as “adult[s] who lack the physical or mental capacity to provide for [their] own daily needs”) are not affected. For example, childcare centers may still ask whether an applicant has been convicted of sexual abuse. Second, inquiries that are already required by federal, state, and/or city law or regulation remain intact. This second exception includes the following:
- federal law enforcement officers;
- airport security screeners;
- child care workers in state or federal agencies or facilities;
- bank employees;
- port workers;
- positions requiring occupational licenses (e.g. taxicab and truck drivers);
- positions requiring federal security clearances;
- security systems technicians;
- nursing referral service agencies; and
- congregate housing services for seniors.
Additionally, if the applicant voluntarily brings up his or her criminal record without being asked, the employer may use this information.
If you are located in a city or state with a government that shares Baltimore’s activist philosophy, you might see a similar law in your future. You should probably prepare now for such a possibility.
Under the EEOC Guidance, employers are supposed to make an individualized assessment of each applicant’s criminal record by considering factors such as (1) the nature of the crime for which the applicant was convicted; (2) the time that has passed since the conviction; and (3) the nature of the job the applicant is seeking. For example, according to the EEOC, an applicant for a public relations account executive position who has a 20-year-old misdemeanor assault conviction should not be kept from employment based on the conviction.
You might consider reviewing your hiring processes to ensure that the criminal record issue is properly handled. If your jurisdiction “bans the box,” you may have to rework your employment application and how you handle criminal convictions. If you use an electronic (online) application system, you should remove any questions asking whether the applicant has been convicted of any criminal offense, regardless of the time period. In addition, you should not ask an applicant’s references about the applicant’s criminal history prior to making a conditional offer, unless the position you are seeking to fill falls within one (or more) of the exceptions in the law of your jurisdiction.
As part of your offer package, you may have to use conditional language that gives you leeway to withdraw the offer, depending on the results of the criminal background check. For example:
“This letter shall confirm our conditional offer of employment to you as a (job title). Please understand that your offer of employment is contingent upon the satisfactory outcome of a criminal background check.”
If your jurisdiction does not “ban the box,” but you are concerned about the EEOC, you may just want to ask the follow-up questions suggested by the EEOC when an applicant discloses a criminal conviction. Other issues may arise, however, if you decide to hire a person with a criminal conviction because of a satisfactory explanation, then you are confronted with an explanation that is similar, but not nearly as satisfactory. The lack of consistency in how you treat criminal convictions could form the basis for future charges of other illegal discrimination.
No matter what decision you make, you should expect future laws, regulations, guidances, and judicial decisions concerning how criminal convictions should be handled during the hiring process (and possibly even for current employees who get convicted). Use good judgment, but remember that good judgment will not always keep you out of trouble with governments more concerned about helping criminals than
employers.