Our recent blogs have addressed the NYC Fair Chance Act,
which is actually part of a larger movement that we will talk about today
called ban-the-box. The purpose of the movement is to ensure that individuals
with a criminal record are not barred from obtaining employment based solely on
their criminal history. The policies that have resulted from this movement
determine when it is appropriate to screen your potential employees.
The reason for this movement boils down to some staggering
numbers. According to a 2012 study, the number of ex-felons in the U.S. has
surpassed 18 million people. 700,000 individuals are released from prison every
year. And a very noteworthy statistic is that young black men are seven to
eight times more likely to be incarcerated than whites of their age group. Based
on these shocking numbers, it is no surprise that ban-the-box laws are
continuing to pop up around the nation. It is also obvious that these policies will
continue to be a hot topic in 2016.
Nineteen jurisdictions have enacted ban-the-box laws since
2010. These ordinances have been issued at the city, county, and state level.
And what complicates things even more, there is substantial variation from
jurisdiction to jurisdiction. While all of these policies ban the criminal
history check box from the job application, each jurisdiction has a different
stance on when criminal history inquiries can be made.
For example, here is a breakdown of different jurisdictions
in terms of when an inquiry can be made:
·
After the initial screening of applicants:
o
Chicago
o
Illinois
o
Massachusetts
o
Minnesota
o
Seattle
·
At the first interview:
o
Buffalo
o
Oregon
o
Rhode Island
·
After the first interview:
o
Montgomery County
o
New Jersey
o
Philadelphia
o
Prince George’s County
o
Rochester
o
San Francisco
·
After the conditional offer:
o
Baltimore
o
Columbia
o
DC
o
Hawaii
o
New York City
Differences from jurisdiction to jurisdiction don’t end
there either. There are exceptions to each policy that vary depending on your
place of business. Even the content of your adverse action notices may be
different depending on the local policy. New York City, for example, must
provide analysis under NY Article 23-A. This can now be done through the use of
the FCA Notice form.
It is important to educate yourself on the local ban-the-box
policy that applies to your business. Try to monitor legislative developments.
Review your job applications, background check documents, and substantive
policies and guidelines. Always consider how ban-the-box laws fit into your
FCRA compliance process. We always recommend speaking to your lawyer to ensure
your background screening program is 100% compliant.
If you have any questions about how these ban-the-box
policies may affect you, feel free to respond to the blog and we will answer
them. Also, look out for our ban-the-box policy map that will be a part of our
new website in 2016.
