Across the country, a growing number of states, cities and counties are enacting laws designed to remove barriers faced by individuals with criminal records in finding employment. These measures include “ban-the-box” legislation, which forbids employers from asking about criminal history on an employment application; laws directing when and how criminal background information can be used in hiring decisions; and financial incentives for employers who hire individuals with qualifying criminal records.
Laws restricting what private employers may ask about criminal history during the application process are in place in 11 states, the District of Columbia and more than a dozen cities and counties. Several more states have legislation applying ban-the-box provisions to private employers under consideration at this time. When the list is expanded to laws covering government employers and contractors who do business with state or local governments, the number of covered locations grows to more than 30 states and 150 municipalities.
Complying with the criminal background laws can present challenges, especially for an employer who operates in multiple states or localities. The laws limiting inquiry into criminal background in hiring vary from location to location. For example, some of the laws provide that an employer cannot ask about criminal background in the employment application document, other laws say that there can’t be any such inquiry until after the candidate has had an interview, and still other laws say there can’t be any inquiry until a conditional offer of employment has been extended.
Once the employer has reached the point in the hiring process where it may lawfully look into criminal background, finding out that an employee has a criminal record doesn’t necessarily end the inquiry. In a number of jurisdictions, an applicant can’t be disqualified by a criminal history unless the employer has considered specific factors such as how much time has passed since the conviction(s), how old the applicant was at the time of the offense, the seriousness of the offense and whether the conviction has a bearing on the applicant’s ability to perform the duties and responsibilities of the job being sought.
While it might sound like these laws only present potential liability for employers who make mistakes in looking at applicants’ criminal backgrounds, there are also benefits for employers who hire qualified candidates with criminal records. For example, the federal Work Opportunity Tax Credit program provides tax incentives to employers to hire qualified individuals with felony convictions and others who might otherwise face barriers to enter or re-enter the workforce.
Practical Tips and Best Practices
1. Review applications, job postings and recruiting materials for compliance. Even places which haven’t fully embraced ban-the-box may have limits on what can be asked about arrests that didn’t lead to convictions, misdemeanors or sealed records. A few laws have tighter restrictions on what an employer can say; for example, New York City’s Fair Chance Act says that an employer can’t make any solicitation, advertisement, policy or publication that expresses any limitation or specification in employment regarding criminal history. Carefully examine application forms, job postings and recruiting materials, including those posted on recruiting/job sourcing websites and social media, to make sure these documents say and ask only what’s allowed under law.
2. Train hiring personnel. Educate managers, human resources personnel and others involved in the hiring process so they are fully up to speed on what may and may not be asked relative to criminal background. For those who may be reviewing background at the stage where it’s allowed, ensure that they know what factors can and must be considered and follow rules about communicating with applicants. Make sure that any recruiters you work with are trained and compliant as well.
3. Know the laws where you operate. The requirements for legal criminal history and other background checks are not only varied by location but changing frequently due to legislation, regulations and other guidance. Checking in with counsel and human resources to make sure your hiring practices are in line with legal requirements where you operate and keeping an ear out for new developments can steer you away from trouble in the hiring process.
Maura D. McLaughlin is a partner with Morgan, Brown & Joy, LLP, with a practice focused on all aspects of employment law. She can be reached at [email protected]