August 20, 2016

Buster Got Busted, But Not on Employment Applications

Betty J. Boyd

Applying for a job can be dog-eat-dog, especially when one is a former inmate. Job applications that reveal an applicant has been convicted of a felony are often tossed out, without considering the applicant’s knowledge, skills, and abilities.

However, this blanket discrimination against ex-convicts may be changing through a proliferation of “ban-the-box” legislation. Ban-the-box (or Fair Chance to Work) laws derived its name from the check box on initial employment applications that ask about a job applicant’s criminal history. There are many variations of these laws across the country, but they generally prohibit an employer from asking about a job applicant’s criminal background during the early stages of the hiring process, unless the position falls within an exception such as law enforcement.

Proponents of ban-the-box policies, such as the major civil rights group, the National Employment Law Project (NELP), believe that ex-offenders will receive a fair chance at employment when they are not stigmatized by their former incarceration. With greater access to jobs, proponents theorize that there will be a reduction in recidivism and the disparate impact among minority ethnic (e.g., Hispanic and African American) groups that have a higher rate of criminal records.

Opponents, on the other hand, believe that these policies increase potential negligent hiring claims, economic hardship, and safety concerns. In the New York Times (April 13, 2016), the National Federation of Independent Business’s president and chief executive, Juanita Duggan stated, “Not every business can take a risk employing someone with a felony record . . . For them, their reputation is everything and the actions of one worker could mean the end of the business.”

Whatever your views, it is time to re-examine your job applications and employment hiring practices to ensure they are in compliance with your locale’s employment laws. Not only has ban-the-box legislation grown exponentially across states, counties, and cities, but the federal government has supported this movement as well. This article provides a brief overview of the ban-the-box laws as well as federal and Californian employer restrictions regarding criminal history inquiries during the hiring process.

A Ban-the-Box Primer

In 1998, Hawaii pioneered America’s first ban-the-box law. Around 2004, All of Us or None, a civil rights group fighting for the rights of the formerly and currently incarcerated, began a national campaign to ban the box on employment applications (as well as for housing, public benefits, and other services). According to NELP (as of June 1, 2016), there are a total of 24 states and over 100 cities and counties that have followed the ban-the-box movement.

These ban-the-box statutes and ordinances vary from one locale to another. Therefore, complying with one ban-the-box law, in one location, does not necessarily mean compliance in another. It is important to carefully read your locale’s law on criminal history inquiries and background checks (it may not be labeled as Fair-Chance or Ban-the-Box).

Generally, the core component of these laws is the timing of when an employer can ask about a job applicant’s criminal history. Some prohibit asking until the applicant is first interviewed or until a conditional offer is made, whereas others require an individualized assessment of each applicant. Each locale’s law has different exceptions. Some do not apply to certain positions and some do not apply to employers with a specified number of employees. Further, some laws apply only to the public sector, whereas others apply to both the private and public sectors. According to NELP, the following nine states have banned the box for private employers: Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.

Even if a state does not have a ban-the-box statute, some counties and cities within that state may have fair-chance ordinances affecting employers’ hiring practices. For example, although there is no state-wide ban-the-box law in Texas, there is a recently enacted Fair Chance Hiring Ordinance in Austin (Texas’s first city) that prohibits both public and private employers from asking about an applicant’s criminal background until after a conditional offer of employment is made. Dallas may soon follow, despite the absence of a statewide ban. According to the Dallas Morning News (August 11, 2016), the Dallas City Council is incubating proposals for private employers (since 2007, the city government was banned). Thus, it is important to keep abreast of these policy developments, especially if you conduct business in multiple cities, counties, and/or states.

The federal government has even joined the ban-the-box bandwagon: Congress introduced the Fair Chance Act (S.2021/ H.R. 3470) on September 10, 2015. President Obama then mandated, on November 2, 2015, that the Office of Personnel Management (OPM), the federal government’s human resources department, delay the investigation of a federal job applicant’s criminal background until later in the hiring process. Obama followed this by signing the “Presidential Memorandum—Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals” on April 29, 2016. Accordingly, OPM is working on proposed rules consistent with the Presidential Memorandum. Similar to the statutes and municipal laws, there will be exceptions to OPM’s proposed rule, such as with jobs in law enforcement and national security. If OPM’s new rules become law, it will become an important model for the remaining states, counties, and cities without ban-the-box legislation. Many large corporations—such as Starbucks, Google, Koch Industries, and Kellogg’s—have already taken the initiative and made the “White House’s Fair Chance Business Pledge” to promote the reduction of employment barriers faced by ex-offenders.

Federal Restrictions Regarding Criminal Background Inquiries

While the federal ban-the-box legislation is pending, the Equal Employment Opportunity Commission (EEOC) will continue to protect against any discriminatory use of criminal-record information. The EEOC is in charge of ensuring the compliance of the federal equal employment opportunity laws, such as Title VII of the Civil Rights Act of 1964, as amended (Title VII). Under Title VII, any employer with 15 or more employees may be liable for discriminating against a job applicant by either intentionally using an applicant’s criminal background information differently in accordance with the applicant’s race, national origin, or other protected-class characteristic (i.e., disparate treatment), or implementing a facially neutral screening policy (despite the lack of intent to discriminate) that excludes a disproportionate number of a protected class (i.e., disparate impact). If the latter, an employer may defend its practice on the basis that the policy is job-related for the position and consistent with a business necessity. According to Griggs v. Duke Power Co., 401 U.S. 424, 431, 436 (1971), this means that the employer must show that its policy “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and “measure[s] the person for the job and not the person in the abstract.”

On April 25, 2012, the EEOC issued an updated Enforcement Guidance for employers regarding the use of criminal history in employment decisions. An employer may obtain and ask about an applicant’s criminal background; however, it may not use it as an automatic hiring criterion. If an employer considers an applicant’s convictions in its hiring decision, then the employer must also consider the following three factors (called a “targeted screen,” as established by Green v. Missouri, 549 F.2d 1158 (1977)): “(1) the nature and gravity of the offense or offenses, (2) the time that has passed since the conviction and/or completion of sentence, and (3) the nature of the job for which the applicant has applied.” Additionally, the employer should conduct an individualized assessment of the applicant.

If an employer obtains a background report (e.g., criminal background) from a company in the business of providing such reports, then the employer must comply with another set of rules--the Fair Credit Reporting Act (FCRA). The Fair Trade Commission (FTC) enforces the FCRA, which sets forth the regulations (e.g., obtaining the job applicant’s consent before conducting a background check and providing notice to the applicant) concerning these reports, including any adverse employment actions that stem from these reports.

For additional information, please visit the EEOC and FTC websites.

Californian Restrictions Regarding Criminal Background Inquiries

On July 1, 2014, California’s ban-the-box law went into effect (formerly AB 218 and now Labor Code § 432.9), barring a state or local agency from requiring a job applicant to disclose his or her conviction history until the agency has determined that the applicant meets the minimum employment qualifications, or unless an exception applies (e.g., a position with the criminal justice agency). Although private employers are not affected by California’s statute, they may be affected by certain county and city ordinances that go beyond the state law, unless the ordinance has an exception. For example, San Francisco’s Fair Chance Ordinance (effective August 13, 2014) prohibits private employers that are located in the city or that conduct business in the city and that have 20 or more employees from inquiring about an applicant’s criminal history or from seeking an applicant’s criminal background report during the initial stage of the hiring process (i.e., on an employment application and during the first live interview). Similarly, Richmond’s ordinance (effective September 1, 2013) forbids private employers that contract with the city and that have 10 or more employees from inquiring about a job applicant’s conviction history.

These laws provide further protections on top of the following sections of the Labor Code: Under section 432.7, employers are restricted from asking about an applicant’s: (1) completion of a diversion program; (2) arrests that have not lead to a conviction; and (3) convictions that have been expunged (“dismissed in the interest of justice”), sealed, or eradicated. Moreover, pursuant to section 432.8, employers are barred from asking about certain marijuana-related convictions that are over two years old. Employers may, however, ask about a pending arrest under section 432.7).

A fact sheet summarizing examples of acceptable and unacceptable employment inquiries can be found on the California Department of Fair Employment and Housing’s (DFEH) website. Currently, the DFEH is working on the proposed amendments with regard to how the consideration of criminal history in employment decisions may constitute a violation of the Fair Employment and Housing Act (FEHA).

If a background check is run on a job applicant, then the employer must comply with California Civil Code section 1786 et seq., which provides greater protection than the FCRA’s national standard. For example, section 1786 applies not only to third-party companies that compile background reports, but also to employers who produce their reports in-house. Moreover, unlike the FCRA, which has no time limitation for reporting convictions, California’s fair credit reporting statute provides that convictions can only be reported for seven years unless another law requires a longer time frame.

Conclusion

Because the ban-the-box movement is expected to spread to more locales, employers should doggedly monitor these new developments, especially if they conduct business in multiple locations. Failure to comply with these laws can subject their businesses to penalties. Some practice tips are as follows:

  • Check and revise your job descriptions, hiring criteria, and job applications as needed to make sure they are job related and consistent with a business necessity. Conduct an individualized assessment of an applicant possessing a criminal record—preferably with an evaluator who is independent from the hiring decision-maker.
  • Document significant hiring events (e.g., when an applicant is first interviewed and when his or her criminal background is examined).
  • Consult with your human-resource specialists to ensure that your hiring practices and policies are in compliance with the updated employment laws.

In summary, ban-the-box policies do not completely ban the criminal background inquiry—they merely postpone it to a later stage of the hiring process, such as after the employer gets to know the job applicant and his or her qualifications. It is all about giving Buster a second chance.

Betty J. Boyd

Betty J. Boyd is a solo practitioner in Monterey Park, California, focusing on tax controversy and business litigation in the greater Los Angeles and Orange County areas.