Ban The Box Background Check Measures: 2015 Update

Ban The Box Background Check Measures: 2015 Update
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“Ban the Box” policies have become increasingly more common throughout the U.S. in recent years, with more than 100 states and cities and several large retailers such as Target and Wal-Mart adopting them. Known nationally as the “Ban the Box Campaign,” fair chance policies are designed to give applicants convicted of crimes with an opportunity at a job interview by delaying inquiries into their criminal history until a later stage in the hiring process. According to a report by the National Employment Law Project, from 2013 to 2014, more than twice as many jurisdictions adopted policies to reduce hiring barriers for qualified job-seekers with a past conviction. In 2014 alone, 42 jurisdictions adopted such policies, making it increasingly more important for employers to stay informed of any regulations that are in effect in their area, whether at the state, county or city-level.

Here’s a recap of some of the latest stories concerning “Ban the Box” measures from the past few months. Is your organization affected by any of these measures?

New Jersey’s ‘Ban the Box’ Now in Effect

On March 1, 2015, New Jersey became the latest state to “Ban the Box” by prohibiting employers from inquiring into a job applicant’s criminal background during the initial stages of the hiring process. The law, titled the Opportunity to Compete Act, was signed by New Jersey Governor Chris Christie on August 11, 2014 and applies to public and private employers with 15 or more employees. In New Jersey, employers are now legally required to wait until after an applicant’s first interview to ask about his or her criminal history, says Hayley Dryer, Associate at Cullen and Dykman, LLP. “Employers should review employment adverting, application forms, and internal human resources documents to ensure all materials comply with the [now in effect] New Jersey law,” says Dryer in a blog post for JD Supra Business Advisor. “Human resources professionals must receive training on how to properly conduct an interview in light of these new restrictions.”

Washington State Seeks to ‘Ban the Box’

In Washington State’s current Legislature session, an initiative “seeks to prohibit employers from asking about arrests or convictions before an applicant is deemed qualified for the job,” reports Sheila Hagar in a February 2015 article in the Union Bulletin. Called the Fair Chance Act, the legislation would require employers to remove questions about past convictions and arrests from applications. Employers, however, can still ask for the information during an interview as well as tell applicants they will conduct a criminal background check. If the act is passed, it will apply to all Washington State employers but not the federal government agencies in the state. Other exceptions to the act include employers hiring someone with unsupervised access to children or employers who are permitted or required by law to rely on criminal background information, such as financial institutions. Law enforcement agencies are also exempt from Washington’s act.

‘Ban the Box’ Initiative Gains Support in Allentown Following Previous Pennsylvania Ordinances

Ed Pawlowski, Mayor of Allentown, Pennsylvania, recent proposal to eliminate the question of past criminal convictions from city job applications has gained support from other elected officials. “Instead of focusing on an applicant’s criminal history, we will provide them with a chance to compete and hopefully secure a job in the public sector,” says Mayor Pawlowski in February 2015 article in the Lehigh Valley newspaper. In Pennsylvania, Allegheny County, Pittsburgh, Philadelphia and Lancaster have already banned the box. Philadelphia approved a law in 2011 that prevents public and private employers from asking about someone’s criminal history until after the first interview. In 2012, Pittsburgh adopted two ordinances that apply to city employment and contractors or vendors doing business with the city.

‘Ban the Box’ Movement Gains Momentum in Virginia

In 2013, three South Hampton Roads cities—Norfolk, Portsmouth and Virginia Beach—dropped the question from applications for most municipal jobs, reports Philip Walzer in a February 2015 article in The Virginian-Pilot. Among local Virginia companies, Cox Communications disclosed it doesn’t ask the criminal question on its job applications. Norfolk Southern Corp. will phase out the question in all applications this year, according spokesman Robin Chapman.

How are healthcare employers affected, however? “Sentara Healthcare is prohibited by law from hiring people convicted of crimes such as assault or arson for jobs in areas such as home care and long-term care,” says Laura Amdusky, Recruitment Director at Sentara. Sentara conducts a criminal check after making a contingent job offer, but it also asks about criminal history on all of its applications to get a “heads-up.”

Tampa Makes a ‘Ban the Box’ Exception for City Vendors

In Tampa, Florida, the City Council recently decided not to expand its “Ban the Tox” job application policy to include companies doing business with City Hall. “But the council still hopes to nudge private employers toward eliminating questions on initial job applications about applicants’ criminal history,” reports Richard Danielson for the Tampa Bay Times. The council, however, voted in favor of drafting an ordinance that would require bidders for city contracts to be asked if their applications include these types of questions. In Florida, Jacksonville, St. Petersburg, and Tallahassee have all moved to remove the box from their city applications, says Ashley D. Thomas in the Daytona Times.

With the increasingly growing complex myriad of “Ban the Box” initiatives affecting employers nationwide, employers should review their hiring processes on an ongoing basis to ensure compliance with the law. For healthcare employers, there might be conflicting laws, so it’s a good idea to have your policies reviewed by legal counsel.

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