Beginning Jan. 22, Los Angeles enacted the Fair Chance Ordinance, a so-called “ban-the-box” law that prevents employers from investigating the criminal histories of potential employees before submitting a conditional offer of employment. The goal of the law is to evaluate potential employees without acknowledging criminal history, but it also complicates the employment process.
Michelle Sumner, associate and counsel at equal employment advisory council at Washington, D.C.-based law firm NT Lakis, said there are currently 17 states in the U.S. that have ban-the-box ordinances, and that they run the gamut in requirements. Similarly, Andrea M. Kirshenbaum, principal at Post & Schell, P.C., attorneys at law, said during her practice in Philadelphia there were two different layers to its ban-the-box law—state and local—and in some cases requirements crossed over into the realm of the Fair Credit Act.
“There is not a lot of activity happening in Congress with regards to ban the box; it’s happening on the state level,” Kirshenbaum said. “With new jurisdiction coming in, we expect to see more activity in the state and local level, which makes it very challenging to hire as a multistate employer.” Don Schroeder, partner at international law firm Foley & Lardner, is unsure if he has ever seen a ban-the-box ordinance succeed, and argues that there are certain felonies that are prohibitive of someone's trustworthiness and credibility.
“You want to give people a second chance, that’s the point of this, but being able to ask about certain offenses would prove to be somewhat valuable information for an employer,” Schroeder said. “In some ways, it cuts off [an employer’s] liability for gross negligence if the law prevents them from asking certain questions… but relating to probations, fines, prison stays or parole, it’s really broad not to ask any questions there. If you go to that length, you are tying an employer’s hands.”
Sumner said one option is for operators to come up with one common application of the standards by finding the most strenuous restriction and model their process after that to make it more efficient or cost effective. The other option, tailoring the process to the location based on its specific laws, is also applicable but difficult due to the inconsistent application of ban-the-box ordinances throughout the country.
“In the near future you are going to see states have greater employee protections,” Sumner said. “It’s the same route with paid sick leave. The scattershot nature of these laws sometimes make it difficult for even a well-intentioned employer to apply them correctly.”