Since the U.S. Equal Employment Opportunity Commission (EEOC) published its 2012 Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions, states and cities have been following suit. These so called “Ban the Box” ordinances, which are designed to institute EEOC compliant, fair criminal records screening standards at a local level, can seem anything but fair to the companies affected by them.
Hiring firms are caught in a legal vise―they must hire with sufficient caution to ensure they do not put other personnel at risk, yet they must also ensure they do not infringe upon the rights of candidates not to be unfairly screened because of criminal backgrounds or arrest records. Failure to do either can result in firms becoming entangled in lawsuits.
As of April 2014, according to the National Employment Law Project (NELP), 11 states had taken action to ban the box:
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- California
- Colorado
- Connecticut
- Delaware
- Hawaii Illinois
- Massachusetts
- Maryland
- Minnesota
- Nebraska
- New Mexico
- Rhode Island
Ten of these states enacted Ban the Box laws; one (Illinois) implemented them via an Administrative Order. Per the NELP, more than 60 cities and counties in 26 states have enacted some form of Ban the Box ordinance.
Their breadth and applicability ranges from location to location, with some (Richmond, Calif. is one) restricting employers from requiring criminal history information at any point during the hiring process. Many of them are more restrictive than the EEOC guidance.
Additionally, some cities and counties are taking action before their states do. Indiana has no Ban the Box law, yet Indianapolis enacted one that applies in both the City and Marion County. Some of these ordinances cover only municipal contractors; others are applicable to all businesses registered with the entity passing the ordinance.
Prudent employers should determine, immediately, whether current or already-passed legislation applies to them, and they should take steps to ensure their personnel or background screening company is not in danger of violating any laws. A Ban the Box movement appears to be sweeping the country, so we at Barada Associates would not be surprised to see a wave of additional laws being enacted, soon.
For more information or to discuss an evaluation of your company’s current screening processes, we invite you to give us a call at (765) 932-5917.