Will “ban the box” work?

22 Sep

"Ban the box" initiatives have changed the way employers screen employees for criminal history.

First of all, what is the box? Traditionally, it was a question on job applications that asked job seekers to divulge whether they've been convicted of a crime. Human resources managers should be familiar with the "ban the box" movement, its impact on employee management and activities with regard to both grassroots organizations and the Equal Employment Opportunity Commission.

The National Employment Law Project, a public policy research group, released a resource guide in July 2014 that explains how many individuals are affected by criminal histories during the job application process. In 2011, there is an estimated 65 million U.S. job seekers with records that would show up when an employer ran a criminal background check. At the same time, 92 percent of employers in an EEOC survey indicated they perform these background checks on all or a portion of the job seekers who apply for positions within their companies. Without question, the impact of criminal history is far reaching. Yet, the main goal in scrutinizing applicants in this manner is to mitigate risk in the workplace, the EEOC explained. For instance, employers want to avoid incidents involving fraud, theft and violence.

As of September 2014, there are 13 states that have comprehensive "ban the box" policies, while nearly 70 cities have implemented the change in hiring policy. According to the EEOC, a criminal record is not a protected status under Title VII of the Civil Rights Act of 1964, which seeks to prevent and penalize discrimination based on gender, race, religion and national origin. This may be part of the reason why a growing number of states, municipalities and counties are banning the box on job applications, meaning employers can directly ask about past criminal conduct.

What does it mean for employers?
Human resources managers and business owners need to understand the regulations established by their state and local governments. For example, legislation in Colorado only impacts public employers, and they need to be able to clearly identify a link between a conviction and the job the applicant is seeking. If there's no connection, then the employer can't use the conviction as a screening mechanism. In addition, arrests and expunged criminal records should be ignored during the hiring process as well. Meanwhile, the Illinois statute applies to private and public employers with 15 or more employees, but there are few other stipulations, meaning there aren't limits on screening based on time or record. In both states, however, business owners can't conduct a criminal background search until the person is provided a conditional offer of employment, and, in Illinois, until the applicant reaches the interview stage.

The EEOC also advocates for judicious hiring policies in order to give applicants with a criminal history a fair chance at employment. In other words, it's recommended that employers weigh the degree of seriousness of past criminality, conduct since the offense and whether the behavior would prevent the individual from performing the sought-after role.

Employers should also keep disparate treatment discrimination in mind during the hiring process, the EEOC wrote. In reality, African American and Hispanic people in the U.S. are arrested at much higher rates than their white counterparts. As a result, many employers – often unintentionally – have workforces that are not representative of the applicant community, which is indirectly due to the racial backgrounds of job seekers. Human resources software can help employers identify this kind of inequality, allowing them to put fair hiring policies in place.

What does it mean for convicted criminals?
While arrests don't necessarily equate with wrongdoing, convictions usually provide solid proof of misconduct, the EEOC explained. However, different states have specific policies with the way employers can use criminal history to screen applicants. Much like business owners must educate themselves, convicted criminals must also be aware of the legislation in their particular region as it pertains to their employment opportunities. For instance, the Minnesota regulations prohibit employers from using misdemeanors that included no jail time as the basis for evaluating a job seeker.

However, it's not a bad idea for job seekers with a conviction record to be prepared to answer questions about their criminal history during the job interview. Depending on the company and industry, the employer may be forthright in asking for an explanation of past behaviors and whether it will affect the person's job performance.

What industries are exempt from this?
Not everyone is expected to abide by the "ban the box" legislation. There are federal mandates that explicitly limit access to certain jobs based on a specific criminal conviction within the past 10 years, such as an airport security screener. Other industries that have their own hiring policies include federal law enforcement, child care workers in national government positions, banking, insurance, defense contractors and some health care positions.

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