Rhode Island, Minnesota and the City of Buffalo Joins the Growing Trend of “Ban-the-Box”
“Ban-the-Box” legislation is typically defined as “any legislation that either prohibits or seriously restricts employers from asking about an individual’s criminal history on a job application”. Currently, Hawaii, Massachusetts, and now Minnesota and Rhode Island have enacted statewide private employer “Ban-the-Box” laws. These laws will be in effect starting January 1, 2014.
In addition to this, local city and county governments in the states of California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, and Washington have passed such laws. These laws restrict both private employers and/or government agencies and contractors from asking about criminal history on job applications. If your organization is based in Rhode Island, Minnesota, or Buffalo, it is time to review your hiring policies.
Furthermore, don’t think you are off the hook if your state/local government hasn’t been mentioned yet. Similar regulations are pending elsewhere. “Ban-the-Box” spreading across the country. It is time for all employers to take a close look at these examples and prepare for a change.
- Prohibits employers from asking an applicant about his/her criminal history or performing a background check on an applicant prior to the first interview, or before a conditional offer of employment is made to the applicant.
- Employers are still able to notify applicants that a law or the employer’s policy will disqualify an individual with a particular criminal history from employment in particular positions.
- Exemptions include the Department of Corrections as well as public employers who have a statutory duty to conduct a criminal history during the hiring process.
- Penalties for the first year will include a written warning and a penalty of up to $500 for additional violations, not to exceed $500 per month for any subsequent violations. Effective January 1, 2015, penalties would be assessed based on a company’s size. Organizations with ten or fewer employees would face up to $100 per violation, not to exceed $100 per month. For organizations with 11-20 employees, the fine would be up to $500 per violation per month. Finally, those who employ over 20 employees could face penalties up to $500 per violation, not to exceed $2,000 per month. The Minnesota Department of Human Rights will enforce this legislation; applicants are not permitted to bring a civil action to court.
View the full text of this ordinance here: Minnesota Senate Bill No. 523
Rhode Island “Ban-the-Box”
- Employers of four or more individuals are prohibited from inquiring verbally or in writing about an applicant’s criminal history prior to the first interview.
- Exemptions include law enforcement positions or positions relatable, instances in which a federal or state law mandates presumptive disqualification based on a person’s criminal history, or if a standard fidelity bond or an equivalent bond is required for the position for which the applicant is seeking employment and his/her conviction would disqualify him/her from obtaining such a bond.
- Penalties can include an award of back pay, compensatory damages, punitive damages, and attorney’s fees and costs. These are enforced by the Rhode Island Commission for Human Rights.
View the full text of this ordinance here: Rhode Island Senate Bill 357
City of Buffalo “Ban-the-Box”
- An employer with 15 or more employees may only inquire into an applicant’s criminal history after that individual has submitted an application. No inquiries can be made about an applicant’s criminal history prior to the first interview. If an employer does not conduct an interview, that employer must inform the applicant whether a criminal history check will be conducted before employment is to begin.
- An employer hiring for licensed trades or professions, including positions such as interns and apprentices for such licensed positions, may ask applicants the same questions asked by the trade or licensing body in accordance with New York State law.
- An employer hiring for positions where certain convictions or violations are a bar to employment in that position under New York State or federal law are not constrained from asking questions about those convictions or violations
- Employers may withdraw conditional offers of employment for any lawful reason. This includes the determination that the candidate has a conviction that bears a direct relationship to the duties and responsibilities of the position sought, or that hiring would pose an unreasonable risk to property or to the safety of the individuals or the general public.
- Exceptions include the Department of Police, the Department of Fire, any employer hiring for police officer and peace officer positions, public or private schools, nor any public or private provider of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled.
- Penalties can include $500 for the first violation and $1000 for subsequent violations. Complaints will be filed with the Commission on the Citizens’ Rights and Community Relations who may commence a court action.
View the full text of this ordinance here: City of Buffalo Chapter 154 Article V: Fair Employment Screening
What this means for employers:
Background checks are an invaluable part of the hiring process. They provide important information and insight on potential employees that can save organizations time and money. However, background checks can be very misused. As they grow in popularity, it should not be surprising that the EEOC, state and local governments, and class action lawyers, have taken notice. Under this environment of scrutiny, it is probably a wise time to ask some questions and adjust hiring policies accordingly. Employers should be taking into account how an applicant’s conviction would affect his/her job performance. This includes the severity of the convictions and how much time has passed since the conviction.
It is important to note that even with the close review of the use of criminal history checks in the hiring process, employers are not being prohibited from using criminal history as one of the deciding factors in a hiring decision. Rather, what employers will need to address is the timing. The reoccurring theme in the “Ban-the-Box” legislation appears to be that employers need to collect more information than just criminal history when making a hiring decision. A criminal conviction, although certainly important, should be weighed against interview performance, job history, and other relevant factors.
It is important to note that Justifacts is providing this information as a service to our clients. None of the information contained herein should be construed as legal advice, nor is Justifacts engaged to provide legal advice. We go to great lengths to make sure our information is accurate and useful. We recommend you consult your attorney or legal department if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.
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