In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance addressing the use of arrest and conviction records in employment decisions. At the time, only seven states had some restriction regulating how employers could use criminal history in employment decisions. Today, 25 states and more than 150 cities and counties have adopted such laws, which are commonly known as “ban the box” or “fair chance” rules because they often prohibit employers from asking about criminal history on an initial employment application. The “box” refers to a place on an employment application for disclosure of criminal records.
The purpose of the ban the box laws is to remove barriers to employment for qualified workers with criminal records, by requiring employers to consider an applicant’s qualifications before screening out an applicant based on criminal history. The EEOC also suggests that, because arrest and incarceration rates are higher for African Americans and Latinos, employers that automatically exclude all applicants with a criminal history may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.
Notably, ban the box laws do not prevent employers from conducting background checks or considering criminal history. Rather, the laws delay background checks and other inquiries into criminal history until later in the hiring process.
Most ban the box laws apply only to public sector employers. But similar laws applicable to private employers are on the rise. Nine states have mandated the removal of criminal history questions on employment applications for private employers. Fifteen cities and counties nationwide have also enacted fair chance laws that apply to private employers, including Baltimore, Chicago, the District of Columbia, New York City, Philadelphia, Portland, and Seattle.
Under California law, only public employers are currently prohibited from asking about criminal convictions on an employment application. Several California cities have enacted ban the box laws that apply to the city itself, or to the city and its vendors or contractors. Only two California cities, Los Angeles and San Francisco, have enacted ban the box laws that apply to most private employers.
The ban the box laws in Los Angeles and San Francisco go much further than the statewide laws in restricting an employer’s use of criminal history in employment decisions. Both cities prohibit employers from requiring applicants to disclose information about arrests or convictions on an employment application. Employers may not inquire about an applicant’s criminal history or run a criminal background check until after the first “live” interview in San Francisco, or until after a conditional offer of employment has been made in Los Angeles. In both cities, an employer must go through several steps before taking adverse action (e.g., withdrawing a conditional offer of employment) based on an applicant’s criminal history. The employer must conduct an individualized assessment that considers specific factors, such as the age and nature of the offense, and allow the applicant an opportunity to respond with evidence of mitigating factors.
There are few laws prohibiting employers from considering criminal records at all in the hiring process. However, California Labor Code Section 432.7 prohibits both public and private employers from asking applicants about any arrest that did not result in a conviction, referral or participation in diversion programs, or records that have been sealed or expunged. As of January 1, 2017, employers are also prohibited from inquiring about an applicant’s criminal history while the applicant was subject to the juvenile court system.
Ban the box ordinances complicate the hiring process for employers that operate in multiple locations because of the variation in the laws. State and local laws all differ significantly in terms of which employers are covered, what kinds of criminal history can be considered, at what stage in the hiring process a background check can be conducted, what factors can be considered in making an employment decision based on criminal history, and whether and how employers must notify the applicant of that decision. In addition, ban the box laws can interact or even conflict with other laws addressing criminal history, such as the federal Fair Credit Reporting Act and California’s analog, the Investigative Consumer Reporting Agencies Act. And, there are limited exceptions to the laws regulating consideration of criminal history, for positions in industries such as law enforcement, health care, and banking.
From a “best practice” perspective, employers may take several steps to comply with ban the box laws. First, employers should remove questions from employment applications that inquire about criminal history, including arrests and convictions, unless an exception applies. Be sure to destroy all existing hard copy applications to prevent accidental use of illegal application forms.
Also, although it may be tempting to avoid the issue altogether, employers should consider the ramifications of discontinuing consideration on criminal history. Ban the box laws do not eliminate an employer’s obligation to provide a safe work environment or prevent a cause of action for negligent hiring. Also, employers should make sure their background screening provider is operating in compliance with any applicable laws. Employers must also train hiring managers and supervisors to not ask any questions about criminal history during interviews.
Finally, it is a good idea for employers to review their hiring practices with qualified employment law counsel. Counsel can review the employer’s hiring processes to ensure compliance with all applicable laws.