The Good, The Bad, and the Ugly
Cue the Western music…
A lot of employers are nervous about a new villain riding into a town called “Ban-the-Box”. This term refers to a movement that has been successfully convincing legislators to force employers to remove the box on job applications that ask applicants the question “Have you been convicted of a crime?” There has been a real showdown between advocates and opponents of “Ban-the-Box”, oftentimes with employers caught in the middle.
So, what are the pros and cons of “Ban-the-Box”, and how do organizations avoid having things turn ugly?
“Ban-the-Box” does not affect an employer’s ability to obtain information about an applicant’s criminal record. It only changes when in the hiring process such information can be revealed.
Proponents of “Ban-the-Box” point to the statistic that one in four adults have some type of criminal record. An employer’s blanket exclusion policy can have negative impacts on thousands of ex-offenders who are attempting to re-enter society as productive citizens. Allowing an applicant the opportunity to successfully fill out an application and come in for an interview where he/she can explain the circumstances of the offense, as well as any attempts at rehabilitation, can prove to be a win-win situation for both applicants and employers. Moving from a corporate exclusion policy to a policy that looks at applicants on an individual basis allows hiring managers the freedom to consider the nature of the offense, how much time has passed, and how the criminal record pertains to the specific job description.
Enter the bad guy. Unfortunately, when it comes to legislation, nothing is ever easy. If allowed to go awry, “Ban-the-Box” can wreak havoc on an organization’s hiring process.
The unfortunate trend in “Ban-the-Box” legislation is leading to:
A More Complex Hiring Process – Unfortunately, “Ban-the-Box” legislation does a lot more than ask employers to get rid of a box on an application. Several states now require employers to post and in some cases supply applicants with notices. Other states require some form of “job-related screening test” that requires employers to show a correlation between the crime and the relationship to the job. Additional states limit what criminal information is available for employers to use as a part of the hiring process.
Unnecessary Delays in the Hiring Process – In the business world, time is money. Forcing an employer to have an extended hiring process, when clearly it is not appropriate to have an individual with a conviction, can put an unnecessary burden on a company. This is particularly true with small businesses that rely on the ability to place people quickly. For example, “Ban-the-Box” legislation would be a huge problem for a small cleaning service that does not have extra money to spend on multiple interviews and background screening, just to find out (after a conditional job offer) that an applicant has a criminal record of burglary charges and can clearly not be placed in a position of trust.
Multiple and Overlapping Laws – There are over 60 cities and counties as well as twelve states that have passed some type of “Ban-the-Box” legislation. Unfortunately for employers, none have passed exactly the same legislation. This can lead to a huge headache if you have offices in multiple locations. These different locations are forced to develop different practices to accommodate the specific legislation for each individual location. Furthermore, the legislation often overlaps and occasionally contradicts previous requirements from FCRA legislation, EEOC guidelines, and certain state laws.
The Ugly (and How to Avoid it)
The ugly consequence of this type of legislation is that some employers have thrown up their hand in defeat. They are opting out of conducting criminal record checks on their potential employees. This leads to the next ugly fact that just because this legislation has passed does not mean negligent hiring lawsuits have gone away. Our clients and employees trust us to do our due diligence to keep them safe from individuals that may cause them harm. Our reputation depends on our ability to do just that.
How can we avoid an ugly situation?
- Alter, but by no means discontinue, when you ask about an individual’s criminal record.
- In instances, where an applicant does have a criminal record, ask yourself three important questions:
- The nature of the offense, how long ago it occurred, and how it pertains to the job.
- Stay abreast of local legislation:
- encourage lawmakers to pass sensible legislation that does not restrict an employer’s need to know.
- Consult your legal counsel as to how to best apply “Ban-the-Box” legislation to your hiring process.
Until we meet again, safe hiring and happy trails!
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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