“Ban-the-Box” Laws Impact Employer Use of Criminal Records Information

11.13.14

A growing number of states and cities have passed laws restricting employers from inquiring about or considering a job applicant’s criminal history during the beginning stages of the hiring process. This trend is widely known as ​“ban-the-box,” because these laws prohibit employers from requiring an applicant to check a box on a job application indicating that he or she has a criminal record. These ban-the-box laws are intended to remove barriers for individuals who have an arrest or conviction on their record and are seeking employment after rehabilitation. There is variation, however, in the specific requirements of the laws adopted by the twelve states and more than sixty cities that have enacted some form of ban-the-box legislation. There is also variation in which employers are covered by these laws. While the majority of states that have passed ban-the-box legislation have enacted laws that cover public employers, several jurisdictions have enacted legislation governing private employers as well. This lack of uniformity in the ban-the-box laws adopted in different jurisdictions has created some confusion for employers, particularly those with multi-state operations.

As a general matter, these ban-the-box laws do not require employers to hire individuals with a criminal background, and they still permit employers to conduct background checks later in the hiring process. Rather than prohibiting background checks, these laws direct when employers may ask about criminal history and what types of inquiries (e.g., arrests, convictions, or expungements) are allowed. For example, the ban-the-box laws in some jurisdictions permit employers to ask about an applicant’s criminal record after he or she has been selected to interview. In other jurisdictions, employers are required to wait until a conditional offer of employment has been made. It is important to note that even in states or cities with ban-the-box laws, employers may exclude applicants if they are required by state or federal law to not consider candidates who have been convicted of a crime (e.g., certain financial institution positions and certain jobs involving children or vulnerable adults).

In addition to ban-the-box laws, there are also other legal considerations that employers must attend to in regard to inquiries into the criminal background of employees and job applicants. For example, the Equal Employment Opportunity Commission (“EEOC”) issued guidance in 2012 in which it proposed a number of best practice suggestions for employers concerning their consideration of arrest and conviction records during the hiring process. The guidance was intended to offer employers general information and to explain how the use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. The EEOC recommended eliminating any blanket exclusion of applicants based on the mere fact of having a criminal record. The EEOC suggested that when formulating questions for job applications, employers should limit inquiries about criminal history to only those convictions for which exclusion would be job related for the position in question and consistent with business necessity.

In addition to this EEOC guidance regarding federal law, employers may also be subject to state or local laws that limit the manner in which they may consider the criminal history of job applicants. For example, in Wisconsin, the Wisconsin Fair Employment Law prohibits discrimination in employment on the basis of an arrest or conviction record. The law specifies, however, it is not employment discrimination to refuse to employ an individual who has been convicted of a felony, misdemeanor, or other offense if the circumstances of that conviction substantially relate to the circumstances of the particular job. The law does not define ​“substantially relate,” but an analysis of a substantial relationship generally involves a consideration of the nature of the offense compared to the circumstances and description of the position.

In addition, although Wisconsin’s law is not technically a ​“ban-the-box” law, it does regulate the questions that an employer is permitted to ask on a job application. In particular, while employers generally may inquire about convictions, they are not permitted to ask about arrests on an employment application, except in the context of pending charges. Further, it is possible that in the future, Wisconsin might expand its regulation of criminal inquiries on job applications. In 2013, the Wisconsin legislature took up the issue of banning the box with Assembly Bill 342, but the initiative did not result in the passage of a statewide law. Though 2013 Assembly Bill 342 did not pass, it is important for employers to be aware as this may not be the last time the issue of banning the box arises in the Wisconsin legislature.

Given all of this, it is clear that employers have a number of legal issues to consider when conducting criminal background checks as part of the hiring process. Further complicating matters, it is not always easy for employers to determine which laws might be implicated when hiring employees. For example, it can sometimes be unclear whether a state law banning the box extends to employers who hire within that state but do not maintain a physical presence there.

As of now, there is no simple policy or practice that would easily satisfy the requirements in every jurisdiction. Employers must therefore engage in a balanced approach when using criminal background checks as part of the hiring process. In general, employers should take two important practice considerations into account. First, employers need to make a prudent and thoughtful assessment of whether their job applications actually require an inquiry into a certain type of criminal history based on the nature of the position. Second, employers should have a clear and consistent procedure for how hiring practices and inquiries into criminal records are handled within their organization. These considerations are especially critical for employers that conduct business and hire within more than one state. Multi-state employers should make individualized assessments when seeking to hire employees within states that have enacted laws banning the box. Finally, employers should work closely with their legal counsel to ensure compliance with new and developing ban-the-box laws.