On a federal level, legislation intended to ban the question about criminal records on all job applications was introduced in Congress in 2012 and was tabled, but with no vote taken. While the U.S Equal Employment Opportunity Commission (EEOC) designated exclusion of a criminal record box as a best practice for equitable hiring. The EEOC recommendations relate to Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex (including pregnancy), or national origin. Title VII applies to all employers that have 15 or more employees, including private sector employers, the federal government and federal contractors. According to the EEOC, an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate Title VII.
The Fair Chance to Compete for Jobs Act of 2019 is a federal “ban the box” policy that was signed into law on December 20, 2019. The law prohibits federal employers and private employers that contract with the government from inquiring about conviction history until a conditional offer has been made. The law not only provides ban the box protection, but it also includes complaint and appeal procedures for any employers that violate the policy. It goes into effect in December of 2021.
Ban the box legislation limits what an employer can ask candidates on a job application or during the early stages of the screening process. Laws and policies require or recommend that employers consider how all candidates meet the qualifications for jobs prior to considering criminal record information.
Currently, ban the box legislation on the city and state level makes compliance quite complicated. The National Employment Law Project (NELP) reports that 36 states and more than 150 cities and counties had passed ban the box laws as of January 2021. In 2020 alone, ban the box laws passed in Maryland, Suffolk County in New York, the City of Aiken in South Carolina, Shelby County in Tennessee, North Carolina, and Montgomery County in Maryland. In addition, North Carolina passed a law expanding expungement.
The Fair Chance to Compete for Jobs Act of 2019 will prohibit most federal agencies and contractors from requesting information on a job applicant’s arrest and conviction record until after conditionally offering the job to the applicant. NELP estimates that 700,000 new applicants with records will have a fairer chance at employment when the law takes effect in 2021.
Ban the box laws, or fair-chance policies, have been so successful that some cities and states have expanded their policies to include private employers. Because these policies were adopted or introduced in some states and jurisdictions starting in the early 2000s, locations that have collected data show an increase in hiring people with criminal records. Former prisoners have a better chance of getting hired if a job application doesn’t include questions about criminal history, according to employment research from Case Western Reserve University. The practice known as “banning the box” increased employment of residents in high-crime U.S. neighborhoods by up to 4%, the study reports.
Research by economists confirms that hiring people with records is simply smart business. Retention rates are higher, turnover is lower, and employees with criminal records are more loyal. Given the costs associated with turnover and recruitment, researchers have found that employees with a criminal background are in fact a better pool for employers.
Hawaii became the first state to pass a Ban the Box law in 1998, prohibiting employers from asking about an applicant’s criminal history until a conditional offer of employment is made. Even then, employers are only permitted to consider a criminal record within the past 10 years, excepting periods of incarceration. The law allows job offers to be withdrawn if the applicant has a conviction that bears a “rational relationship” to the responsibilities of the position.
The law proved successful there. Criminal defendants prosecuted for felonies in Honolulu County were 57 percent less likely to have prior convictions following the policy’s implementation, according to a 2014 study published in the American Journal of Criminal Justice.
While employers have more definitive guidance on whether or not to include criminal history (the literal box) on job applications, many are hesitant to remove precautions altogether. Background screening candidates on conditional offers of employment is still necessary in order to protect your company and its employees, but you have to be able to do so in compliance with federal, state, city and municipal laws. Working with a background screening vendor whose job it is to know these laws inside and out is the best way to maintain both good for society and safe for your business.
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