“Ban the Box” Movement Continues to Expand

Jul 31, 2015

It was just about a year ago when I wrote how the "Ban the Box" movement was gaining traction in various states and cities around the nation.    Well the march of jurisdictions continuing to implement some degree of limitations upon employers --- regarding asking job applicants about their criminal history on initial job applications --- has not abated.

In the past month, New York City and the state of Oregon both signed into law their respective legislation that "Bans the Box," while the city of Daytona Beach, Florida actually implemented their version of the law.

In New York City, the Fair Chance Act was signed into law on June 29th by Mayor Bill DeBlasio.  Although there are exceptions, primarily where federal, state, or municipal laws preclude employers from hiring individuals with criminal convictions --- for most non-governmental employers, the Fair Chance Act will limit the employers ability to inquire into a job applicant's criminal history, until after a conditional offer of employment has been extended.  Further, this law was written such that an inquiry into an applicant's criminal past not only includes verbal or written inquiries, but it even prohibits the employer from researching publicly available information.  For example, some counties make criminal history available on public websites (although usually with a disclaimer that it is not official records, and cannot be used as such).  This New York City ordinance actually makes it illegal for the employer to search publicly available information, until a conditional employment offer has been made.  This Fair Chance Act will take effect on October 27, 2015.

In Oregon, Governor Kate Brown signed into law its version of "Ban the Box" on June 26th.  It has similar exceptions like the New York City law, i.e., for employment situations where pre-existing laws preclude or limit convicted criminals from particular jobs, generally law enforcement positions, or individuals who work with vulnerable populations.  However again, most private sector employers will be impacted by this Oregon law.  This Oregon law, like most of these "ban the box" laws, only prohibits asking about criminal history during the initial phases of the job application process, i.e., it requires that this line of questioning be withheld until late in the hiring process.  This Oregon law will become effective as of January 1, 2016.

In Daytona Beach, this city's "Ban the Box" law became effective on July 1, 2015.  It is very similar to other laws, i.e., it is not illegal to inquire about a job applicant's criminal past......you just need to wait until later in the hiring process.

For businesses that operate in states or cities with "ban the box" restrictions, it is important for these employers to understand the specifics of their particular local law.  Further for national employers, they may want to implement nationwide policies and procedures, in order to be in compliance with the most restrictive laws.  These companies should consider moving any question regarding criminal history from initial job applications, and asking those questions later during the hiring process.

It should be noted that these "ban the box" laws (in those jurisdictions that have this type of legislation) do not prevent an employer from performing a background check on an employee applicant.  These laws simply mandate that the employer not ask any question regarding criminal history on the initial job application, and instead delay those questions until later in the hiring process.

Posted by: Rudy Troisi.  President, Reliable Background Screening.




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