On April 27, 2017, Indiana Governor Eric Holcomb signed Senate Bill 312, prohibiting counties and cities in the state from passing ordinances that “restrict an employer’s ability to obtain or use criminal history information during the hiring process.” The new law, which goes into effect on July 1, 2017, will reverse local “ban the box” laws in place in the city of Indianapolis and in Marion County.
Ban the box legislation prohibits employers from asking an applicant about his criminal background until a conditional offer of employment has been made. The idea is that this legislation will allow qualified applicants with a criminal past to get past the initial application process – to actually get in front of an interviewer – giving them a chance to explain their past and offer evidence of rehabilitation.
Critics of ban the box have claimed that the law forces employers to hire criminals and prevents them from conducting a thorough background screening on their applicants. This is not accurate; proponents of the legislation are the first to acknowledge the importance of careful vetting of potential employees. Banning the box just gives applicants with a less than squeaky clean past the chance to show employers their personality, qualifications, and skills before discussing mistakes made in the past.
Even as Indiana back-pedals from “ban the box,” the movement continues to pick up speed across the country. Utah recently became the 25th state to adopt some form of ban the box legislation for government jobs, and more than 150 cities and counties in the U.S. are also impacted by ban the box laws for both public and private sector employers. And it appears that ban the box is not just for employers anymore.
In Louisiana, Governor John Bel Edwards just signed House Bill 688 into law, making his state the first in the nation to ban the box on all college admissions applications.
Annie Freitas, Program Director with the Louisiana Prison Education Coalition, said, “What research shows is that two out of three people with convictions [who] want to go to college, when they start the application and they see the question, they stop.” Banning the box will give those with a criminal history a clearer path toward bettering themselves, which is good not only for the individual, but also for society.
The bill does include an exception for prospective students who were convicted of aggravated sexual assault or stalking, and an appeals process for applicants who are denied based on that exception.
With the sweep of ban the box legislation come additional challenges for employers, though. Many, especially those who operate in multiple states, counties, or jurisdictions, are finding it difficult to stay on top of the varying requirements of ban the box ordinances. Three things employers can do to protect themselves are:
- Be informed: In general, ban the box laws require public and/or private employers to eliminate questions on their applications pertaining to an applicant’s criminal history. However, some states and municipalities have their own variations that go beyond a simple banning of the box.
New York City, for example, requires that private employers wait to ask about convictions until a conditional offer of employment has been made, and it calls for more subjective considerations once the question has been raised. Other cities and states allow employers to ask the question earlier in the application process, such as after the initial interview.
The best thing employers can do is designate a specific person in the company to specialize in understanding the prehire requirements everywhere the company does business.
- Know the steps: Are you required to send a pre-adverse action letter if you deny employment based on criminal history? Do you have to provide the applicant with an appeals process? Be sure you know the procedural steps required to keep your company in compliance with both local and state law, and the FCRA.
- Avoid blanket exclusions: Sometimes denial of an applicant is warranted, but be sure that the crime fits the punishment, so to speak. An applicant with a DUI in his history who is applying to work as an engineer should probably not have the DUI held against him, but an applicant looking for work as an over-the-road driver would have a problem. Employers should be sure that the crime an applicant is being denied for has some direct bearing on the job he is being considered to work.
We at the Cedalius Group, the employment background screening provider you can trust, pride ourselves on understanding all of the nuances you as an employer will face in your applicant screening process. Our goal is to provide our clients with all of the tools they need to ensure the best candidate selection process possible. Our promise to you is that we will offer you the latest and most comprehensive background screening, credentialing, and vetting information available, always strictly within the parameters of the FCRA. Call us today at 404.963.9772 or visit us online at www.thecedaliusgroup.com for more information!
The Cedalius Group offers insight into the background screening industry for educational purposes. We always recommend you consult with your legal counsel to determine practices that best suit your business needs.