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Right now, many employers make use of legal pre-screening questions and processes that solicit information about criminal history. According to the 2013 Employment Screening Trends Survey discussed on the EmployeeScreenIQ blog, “79% of respondents still ask for self-disclosure from their applicants, despite the latest EEOC guidance.” (Last year, the EEOC issued a guidance discussing, among other things, how “an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII.”)
This may have to change for many US employers if “Ban the Box” legislation continues to gain political support. Broadly speaking, “Ban the Box” legislation calls for employers to remove the question and check box, “Have you ever been convicted of a crime?” from employment materials. As iCIMS is headquartered in Matawan, NJ, recent discussion of “Ban the Box” bills in the New Jersey House and Senate has captured my interest. Now seems like a good time to take a step back to consider the impact of “Ban the Box” legislation on a national scale--and what this movement means (and doesn’t mean) for US employers.
“Ban the Box” in a nutshell
At this time, 7 states (California, Colorado, Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico) and over 40 cities and counties have enacted some form of “Ban the Box” legislation or policy. Most of these state policies apply specifically to public employment, but Hawaii and Massachusetts have enacted bills that apply to both public and private employment, and Minnesota’s recently-passed legislation will extend “Ban the Box” policies to most private employers effective January 1, 2014.
And New Jersey isn’t the only state with a “Ban the Box” policy on the table: Michigan, North Carolina, and Rhode Island are also discussing policies that fall into this same broad category.
The bills as they have been introduced to the New Jersey House and Senate (A3837 and S2586 or “The Opportunity to Compete Act”) would restrict a public or private employer’s ability to ask about a candidate’s criminal history prior to or during the application process. Only after making a conditional offer of employment would the employer be allowed to consider certain aspects of the candidate’s criminal history in making a final determination. (This includes any convictions for arson, murder, sex offense requiring registration, and terrorism, as well as any pending criminal charges.) The proposed New Jersey bills would also require specific processes on the part of the employer should a candidate’s criminal history result in the withdrawal of a conditional offer.
So where to begin?
Here are some starter questions for employers potentially affected by “Ban the Box” legislation:
Does this legislation apply to me?
A great starting place would be to review the implications of any “Ban the Box” legislation with your legal counsel. Depending upon the nature of the legislation, there may be exceptions for certain kinds of employment. For example, the proposed New Jersey “Opportunity to Compete Act” does not impact companies with less than 5 employees, positions involving less than 15 hours of work (on average) per week, or employment that is not substantially performed within the state of New Jersey. It also would not apply “when any federal or State law or regulation explicitly requires or permits the consideration of specific criminal convictions when making employment decisions.”
Even if current local or state policies don’t affect your company, you will still want to keep an eye out for any changes moving forward that could potentially impact your hiring process.
What’s on my Career Portal?
Some employers have made a practice of including language meant to dissuade those with a criminal history from applying within job postings or career site information. This kind of advertisement could become illegal based upon “Ban the Box” legislation. For example, in the proposed New Jersey “Opportunity to Compete Act,” it would become unlawful for an employer to “produce or disseminate any advertisement that expresses, directly or indirectly, any limitation on eligibility for employment arising from a candidate’s criminal history unless those limitations are mandated by federal or State law.”
If a similar “Ban the Box” policy passes in your area, it might be time to take a look at compliance in your posting language. This could also serve as a great opportunity to sharpen your employment branding. After all, what you say and how you say it will affect how all applicants view your company as a prospective employer for years to come.
What’s on my application?
If your company is affected by recent or upcoming “Ban the Box” legislation, now is also a key time to revisit your application and pre-screening questions to assure that you are in compliance with any applicable law. Employers who operate out of a single state have a clear path: Remove any questions related to criminal history based upon compliance with the applicable law. Those who operate out of several locations, each with different standards regarding compliance, have a number of options: You can include clear exclusions for certain states or localities (e.g. applicants applying for Hawaiian positions do not respond), maintain distinct applications and application processes, or reconsider your application process on a national level.
As you make any necessary adjustments to your application and pre-screening questions, now might be a great time to think strategically about how you qualify, disqualify, and rank applicants in order to assure that the best possible candidate is matched for the position in the shortest amount of time.
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What kinds of questions are my hiring staff asking?
Companies affected by “Ban the Box” legislation will want to train any staff involved in the hiring process to make sure that questions asked during the hiring process are also compliant with applicable law.
The “Ban the Box” movement seems to be slowly gaining momentum across the country, so it will be interesting to see how proposed legislation in states like Michigan, New Jersey, North Carolina, and Rhode Island fares in the coming year or so. Even employers who are not currently affected by “Ban the Box” policies may want to take this opportunity to consider how they can best use employment branding to attract and pre-screening tools to qualify the best possible employees for open positions.