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Bans on Criminal Background Checks Grow

Volume 2, Issue 11
June 15th, 2014
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Whether you think it will end unjustly punishing criminal offenders who have served their time, or is political pandering to ex-offenders, “Ban the Box” laws are proliferating throughout the United States.

handcuffsThe box that is being banned is the one that appears on employment applications next to the question asking if you have ever been arrested or convicted of a crime.

One factor motivating ban supporters is the war on drugs, which over the years has added substantially to the prison population. One study claims that 65 million Americans, or one in four adults, have a criminal record.

Democratic Party strategists also have targeted ex-offenders with Ban the Box efforts along with securing voting rights for felons to cement support in minority communities. During the recent Democratic primary in Washington, DC, all of the mayoral candidates appeared at an event aimed exclusively at addressing needs of ex-offenders and their families.

The Ban the Box movement has its origins in states and cities, but in the last few years it has gained strength at the federal agency level, although some employers and state attorneys general who don’t favor the change are pushing back.

States jumping on the “banned” wagon include California, New York, Hawaii, Delaware, Massachusetts, Minnesota and Rhode Island. They have been joined by cities like Baltimore, Philadelphia, San Francisco, Seattle, Cleveland, Louisville, KY, Newark, NJ, Oakland, CA, and Rochester and Buffalo, NY.

Making matters even more confusing for multi-state employers are the differences in the scope of these laws. States like Illinois, Iowa, Colorado, Pennsylvania and others prohibit inquiries into arrest records. Others like Michigan limit arrest inquiries to pending felony charges. California and Ohio prohibit inquiries into certain petty marijuana-related offenses and Hawaii and Washington prohibit inquiries into criminal convictions more than 10 years old

Still others, such as North Carolina, Ohio, Georgia and Maryland, prohibit employers from inquiring into criminal records that have been sealed or expunged.

Among the companies that have been targeted by major EEOC lawsuits are J.B. Hunt Transport, Uti Logistics and BMW Manufacturing (ACWI Advance, 7-31-14, Page 4).

Last year the state attorneys general of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah and West Virginia wrote a strongly-worded letter to the EEOC commissioners objecting to these actions.

“We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach,” they said.

Texas used even stronger language when it sued the EEOC to stop its actions against employers in that state: “The State of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”

Texas and others also observed that if employers obey the EEOC directive, it would put them in the crosshairs of tort suits when an employee with a criminal record does harm to the public.

Also, last year a federal judge tossed out an EEOC lawsuit brought against a logistics firm for using criminal and credit checks, noting the commission itself conducts criminal background investigations on all of that agency’s job applicants. (ACWI Advance, 9-15-14, Page 5).

But in the face of the wave of local and state laws being adopted, attorney Philip L. Gordon of the law firm of Littler Mendelson urges employers to seriously consider removing the question from applications before it becomes an issue.

You can still learn about applicants’ criminal histories by conducting interviews and lawful pre-employment background checks, he said.

However, the state attorneys general letter to EEOC pointed out that forcing employers to undertake individualized assessments adds significant costs.

“Employers will have to spend more time and money evaluating applicants that they would not have previously considered due to their criminal history and, in many cases, are unlikely to hire even after a more thorough vetting,” they wrote.

Some states have a combination of these along with additional prohibitions, such as how far back an employer can inquire.

What is interesting is that most states also legally require employers conduct criminal background checks on employees who work in certain industries, such as health care and education.

Federal Inititative Creates Controversy

Although there is no national ban-the-box law, in 2013 the federal government recommended that its contractors as a general rule refrain from inquiring about convictions on job applications.

The Equal Employment Opportunity Commission has sued employers arguing that these application queries violate federal anti-discrimination law because they disproportionately harm minorities.

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