New Jersey is the most recent state to enact legislation commonly known as “Ban the Box” – requiring employers to eliminate asking if an applicant has ever been convicted of a crime on the job application – and this trend is showing no signs of slowing down. Five other states (including Hawaii, Massachusetts, Minnesota, Rhode Island, and Illinois) have passed “Ban the Box” legislation for private sector employers and the number of local jurisdictions applying “Ban the Box” is increasing rapidly. Employers across the country need to understand the true impact of this legislation in order to prepare for the likelihood of similar measures arriving in their locale.
For detailed analysis on recent “Ban the Box” Legislation, see Accurate Background’s Compliance Updates on our Legislative Updates page.
As one of the more aggressive applications of “Ban the Box”, San Francisco’s “Fair Chance Ordinance,” is a good case study of the changes employers might need to make to their own hiring processes. San Francisco’s “Ban the Box” legislation is much more complex than simply removing the box from the hiring application. The ordinance has far-reaching implications, starting with the recruitment and interviewing process and potentially extending beyond the conditional offer.
San Francisco’s Fair Chance Ordinance 101
For San Francisco employers, removing requests for criminal history from the employment application is just one small step in a series of hiring process revisions. We’ve outlined the primary implications of the Ordinance below.
Before the interview:
- Must state in job advertisements that they will consider qualified applicants with a criminal history.
- Must publicly post the OLSE (Office of Labor Standards Enforcement) notice at their worksite and must also provide candidates with a copy of the OLSE notice before a background check is run.
- Must remove any questions regarding criminal history from the job application.
During the initial interview
- Cannot inquire if an applicant has ever been convicted of a crime, has any unresolved arrests, or has any pending criminal charges.
After the interview or conditional offer
- Can only ask about misdemeanor and felony convictions that occurred within seven years of the inquiry.
- Must provide the individual with the right to offer evidence of rehabilitation or other mitigating factors.
- Cannot ask about arrests that did not lead to convictions (excludes arrests that are still undergoing criminal investigation or trial), expunged/inoperative convictions, convictions made within the juvenile justice system.
- Must only consider convictions that are related to the job in which the individual is applying and have “a direct and specific negative bearing on [the applicant’s] ability to perform duties or responsibilities necessarily related to the employment position.”
When denying a job based on criminal history
- Must conduct an individualized assessment (before denying the job) and consider:
- Only job-related convictions
- Time elapsed since the conviction (convictions over seven years old cannot be considered)
- Any evidence of inaccurate information or evidence of rehabilitation or other mitigating factors
- Must provide the individual with a written Pre-Adverse Action Notice that includes:
- A copy of their background report
- The potential adverse action
- The items forming the basis for the potential adverse action
- Must allow the candidate seven days to provide evidence that the information is inaccurate or any evidence of rehabilitation or other mitigating factors.
- If provided within seven days, the employer must delay any adverse action for a reasonable period of time while they reconsider the potential adverse action.
- Must provide the candidate with a final Adverse Action Notice if ultimately denying the position based on the candidate’s criminal history.
Implications for Employers Beyond the Golden Gate
As is evident above, San Francisco employers have quite a lengthy to-do list to consider while preparing for the Fair Chance Ordinance to take effect. These considerations are in addition to any applicable state laws and Fair Credit Reporting Act (FCRA) regulations that the employer is already required to follow. Employers can mitigate potential headaches in advance of similar legislation passing in their city or state by taking the time to understand the complexities of “Ban the Box” legislation and the potential impacts on their organizations. This is even more imperative for multi-jurisdictional organizations that have to understand the nuances between different versions of “Ban the Box” across the multiple states and jurisdictions they hire in.
Much of the recent “Ban the Box” legislation (San Francisco and the District of Columbia) also closely mirrors the 2012 EEOC Guidance, which recommends excluding questions regarding criminal history from the job application and requires conducting an individualized assessment of the candidate before taking adverse action. Employers who bring their hiring practices up to speed with these type of “Ban the Box” legislations will likely find themselves in compliance with the EEOC best practices and reduce their risk for discrimination suits – such as race discrimination allegations the EEOC brought against Pepsi regarding their use of criminal background checks. The EEOC found that more than 300 African Americans were negatively impacted when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment (EEOC.gov). Pepsi ultimately agreed to pay $3.13 million and provide job offers and training to the claimants in the suit who were denied employment. Employers can reduce their risk for similar suits and potential damage to their brand’s reputation by bringing their background check policies in line with the EEOC guidance.
Banning “the box” from job applications only scratches the surface of the compliance changes employers need to take in order to protect their organizations and the rights of their candidates and employees. Now is the time to review and discuss with your legal counsel your organization’s policies and procedures to prepare for compliance with changing laws.
Accurate Background offers a host of compliance services to protect your organization, including our Risk Reduction Technology™ and Pre-Adverse and Adverse Action notice services to help employers remain compliant with changing laws. Contact us to receive a review of your current compliance practices.
The information provided in this blog is meant for educational purposes only. It is not intended to be legal advice. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.
