Los Angeles is the latest major city to pass a Ban the Box measure (Ordinance 184652) applicable to private employers. It will become effective January 22, 2017 and will be enforced beginning in July 2017. Other major cities with Ban the Box laws include:
New York City, NY
San Francisco, CA
And don’t forget that eight states have Ban the Box measures on their books which are applicable to private employers — HI, IL, MA, MN, NJ, OR, RI, VT.
What is Ban the Box? In its most basic form it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions). Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check. Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. At least in theory that’s what is supposed to happen as a result of Ban the Box measures, which are often referred to as fair hiring policies.
But, nothing in life is simple. Often, Ban the Box measures go beyond simply requiring employers remove the criminal history question from the job application and they include additional requirements, such as requiring:
Employers conduct an individualized assessment if criminal history is discovered during an background check (e.g., Austin, San Francisco, Los Angeles).
Employers advise the applicant the reason for their decision to not hire if it includes criminal history information (e.g., Chicago, Portland, San Francisco, Seattle, Washington, DC).
Employers provide a specific amount of time to allow the applicant to review and respond to criminal history information discovered as a result of a background check (e.g., Philadelphia, San Francisco).
Employers provide disclosures about the law (e.g., Philadelphia, San Francisco, Washington, DC).
Employers cannot have restrictive language in their advertisements (e.g., Seattle).
Important Although above bullet points cover some of the key requirements, they are not exhaustive as Ban the Box measures are similar but not identical.
And, and, and (yes, I meant three and’s), don’t forget that as a private employer you must also comply with the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) if you’re receiving background check reports from a third-party background screening company.
For employers in a jurisdiction that has a Ban the Box law it’s important to understand what your obligations are. A comprehensive background screening policy will assist any employer seeking compliance with federal and state law. If that is on your “to do” list for 2017, we can assist in developing policies and procedures.
About the Author
Montserrat C. Miller
She began her career as a trial attorney with the Immigration and Naturalization Service handling, among other cases, employer sanctions matters. Over the years Miller has worked in both private practice and on Capitol Hill as counsel to Senator Dianne Feinstein on the Senate Judiciary Committee. She is now a partner at Arnall Golden Gregory’s Privacy and Consumer Regulatory, Immigration and Global Migration, and Government and Regulatory practices.