To combat high unemployment rates amongst individuals with criminal histories, in recent years many state and local government have enacted “Ban the Box” laws. These laws are so named because they generally prohibit employers from asking applicants about their criminal histories early in the hiring process—including by requiring applicants to check a box on an employment application indicating the existence of a criminal history. San Francisco recently enacted such a law, which tightly regulates employers.

San Francisco’s Ban the Box Ordinance

San Francisco’s Fair Chance Ordinance, which goes into effect August 13, 2014, prohibits private sector employers with at least 20 employees (located anywhere) from inquiring about a San Francisco applicant’s criminal history on an employment application, or from asking about criminal history during an initial interview. The law also requires the employer to hang a poster developed by the Office of Labor Standards Enforcement, which summarizes the applicable law.

The law also restricts the criminal history information that employers may seek even after the initial interview. For example, an employer cannot obtain arrest records not resulting in conviction, or records of a conviction that is more than seven years old. The law also contains notice, disclosure, and recordkeeping requirements. Unfortunately, these requirements differ from the existing requirements of the Fair Credit Reporting Act and state law, which also have procedural requirements for applicant background checks, including criminal histories. Therefore, employers in San Francisco seeking criminal history must have policies and procedures that are different from those they use outside of San Francisco City and County.

Other States and Local Entities Adopt Ban the Box Laws

San Francisco’s “Ban the Box” ordinance is one of a growing number of state and local measures. California recently enacted a law prohibiting public-sector employers from obtaining criminal history information until the employer has determined the applicant meets the minimum qualifications for the position. In addition, in Northern California alone, Alameda and Santa Clara counties, as well as the cities of Berkeley, East Palo Alto, Oakland, and Richmond, have all adopted some form of “Ban the Box” laws. And some states, like Hawaii and Massachusetts, have also prohibited criminal background inquiries on employment applications at all.

These laws differ significantly. Some apply only to the public sector governments passing the restriction. Others apply to private employers. They also differ regarding what types of information remain lawful, the timing, and procedural rules. Also, the ability and mechanisms of various entities to enforce the requirements—particularly when the requirements broadly apply to private employers—is not clear. The ordinances generally do not address whether an employer can continue to ask applicants whether they are willing to submit to a background investigation, or to disclose information that could affect their suitability for employment—questions that could lead the applicant to disclose criminal background information.

The bottom line is that these laws all have one thing in common: they make it very difficult for an employer with applicants in various localities to create a uniform application that includes a criminal history inquiry. Unless or until states or the federal government bring some uniformity to this area of the law, employers with multi-jurisdiction operations will have trouble formulating uniform policies and procedures.

What Employers Should Do

Some employers – particularly those operating in multiple jurisdictions – may be tempted to simply forego criminal history checks. But all employers do not have that option. Ironically federal and state laws mandate criminal background checks in certain occupation, such as involving secret information, certain health care jobs, and jobs involving the care of children.

There are good reasons to seek criminal history, particularly when an individual applies for a job involving trust, cash handling, or third parties’ sensitive data. Moreover, states “banning the box” have not eliminated causes of action for negligent hiring against employers who hire workers who later commit crimes against co-workers or the public.

Employers operating in multiple locations that may be restricted by “Ban the Box” laws continue to have options. First they may simply exclude criminal history inquiries from applications in jurisdictions where such inquires are prohibited, either by specifically instructing applicants in those locations not to answer questions on the application about criminal history information, or by creating a separate form with questions about criminal history for applicants in jurisdictions that permit such inquiries.

Alternatively, employers may choose to remove criminal history questions from their applications. Although this avoids the problem of violating local laws or ordinances, it does not preclude employers from obtaining criminal history of applicants by making offers of employment contingent on a successful criminal background check (where that practice is still allowed). Those later checks still must comply with legal requirements like the Fair Credit Reporting Act, similar state laws, and applicable “Ban the Box” laws (like San Francisco’s Fair Chance Ordinance). But, background checks are certainly a more reliable (though costly) form of obtaining criminal history than voluntary self-disclosure, and avoid the problems associated with requesting the information early in the hiring process.

Because this area of the law is changing rapidly, employers must continue to stay abreast of changes to the law even at the local level. More than ever in our history, management faces a fluid and expanding list of state and local employment laws mandating compliance. Even employers operating in a single or limited number of locations without such a law in effect should continue to monitor changes to local laws, and anticipate that additional developments are likely.

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