August 05, 2014 Guest Contributor: Katy Raytis, Employment Law Attorney, Belden, Blaine & Raytis, LLP
The recent “ban the box” movement is a national civil rights push that aims at assisting those with criminal backgrounds to find new employment. The concept is to preclude a prospective employer from having a question on a job application which asks if the individual to check the “box” if he or she has ever been convicted of a crime. This new legislative push should not be that surprising, given that recent studies estimate that approximately 1 in 4 American adults have a criminal conviction in their past.
For some employers, the question of whether or not to “ban the box” on employment applications has been answered for them, in the form of a legislative mandate. In California, for example, as of July 1, 2014, state and local government employers may no longer ask for criminal record information on job applications. Likewise, a recent ordinance in San Francisco prohibits private employers with more than 20 employees from asking about criminal history in the job application. Other states have enacted similar legislation. To date, twelve states have passed some form of “ban the box” law and many others have proposals in the works.
For employers who are not yet legally bound to remove the criminal history inquiry from job applications, the question remains as to whether this might be an advisable practice, even if it is not yet legally required.
For those with multi-state operations, a standard job application that is used nationwide may prove problematic, unless the criminal background question is removed. This is because the various state “ban the box” laws each have their own disclaimers and restrictions. Importantly, an illegal job application makes the employer an easy class action target, so multi-state employers must ensure that they are in compliance with each of the various iterations of the ban the box laws. As a practical matter, simply removing the criminal history question may prove far simpler than trying to wade through the various distinctions that exist from state-to-state.
Removing the criminal history question may also be advisable for employers even if they do not have multi-state operations. Recent guidance from the EEOC emphasizes the fact that the use of criminal history to exclude applicants may result in disparate impact discrimination against minorities. Since that guidance was issued in 2012, the EEOC has filed suit against various employers around the country alleging that the use of criminal background information to exclude applicants resulted in illegal discrimination under Title VII. Given these recent developments, coupled with the fact that the EEOC has announced that disparate impact discrimination remains a top priority, employers who remove the criminal history question from the job application may lessen their chances of ending up in the EEOC crosshairs.
California employers may also be motivated to revise job applications such that they no longer request criminal background information considering the fact that ban the box legislation will likely apply to private employers in the not-so-distant future. In California, this trend has gained increased momentum (as is often the case with employee-friendly legislation) and it is expected that additional legislation will follow in the wake of San Francisco’s recently enacted ordinance.
Of course, proponents of the legislation would also tell you that you should remove the criminal history inquiry from the applications because it will broaden the applicant pool and may result in improved hiring practices.
If it sounds like private employers should “ban the box” themselves, you may want to consider the counter arguments. As with all legal issues, there is, of course, another side to this story.
Including a criminal background inquiry on the job application can be extremely useful for both the employer and the employee. The criminal history question allows the candidate an opportunity to provide the employer with important, relevant information, and perhaps to offer an explanation or other mitigating information related to the conviction. In addition, because there is no protection allowing applicants to provide false information on a job application, if an applicant is dishonest with respect to their criminal background, the employer will have legitimate grounds for termination when that falsification is discovered. This can be critical, particularly in cases where an employee later claims wrongful termination.
It is also worth noting that employers may actually invite increased scrutiny if they remove the question from the application. An applicant who has his or her hopes up about a job, but is then turned away after a criminal background check, may be more likely to question and complain about the use of criminal background information in the hiring process. And increased scrutiny leads to one thing…increased lawsuits.
As it turns out, there is no easy answer to the question of whether you should remove the criminal history question from your current job application. Regardless of how you opt to proceed, it is essential that employers clearly understand that a blanket prohibition on hiring candidates with criminal convictions is not advisable. Instead, an individualized inquiry focused on the nature of the conviction as compared to the nature of the job is required. When in doubt, seek legal advice. Remember, consulting with an attorney is always cheaper than defending a lawsuit.