With over 30 states and over 200 counties, cities, and municipalities implementing the Ban the Box laws, employers must understand the importance in complying with the Fair Chance Act requirements. Furthermore, these jurisdictions have different requirements when it comes to inquiring about applicant criminal history. Employers that operate in multiple jurisdictions must be able to navigate the myriad of laws affecting them.
1. Remove the Question on the Application
Employers by now should have eliminated any questions on their job applications asking new hires about previous criminal convictions. Whether you have a “paper” application or an online version, any questions or inquiries into an applicant’s criminal history violates the Ban the Box laws. Employers may only ask or inquire about previous criminal activity later in the hiring process.
2. Conditional Job Offer Before Conducting the Background Check
A majority of the Ban the Box initiatives require that an employer extend a conditional job offer before asking or conducting a background check. For this reason, employers must determine if the applicant is qualified for the position based on the organization’s hiring factors such as experience, education, etc. before asking about any previous criminal activity or conducting a criminal background check. The applicant’s employment, however, is contingent upon successfully passing the criminal background check.
3. Conducting Individualized Assessment
Once an employer has conducted a compliant background screening check, they must conduct an individualized assessment before taking adverse action against an application’s employment based on any background check results. The assessment will determine if the adverse information being reported violates any of the organization’s hiring policies or state/federal regulatory requirements. Essentially, the assessment will look at three factors otherwise known as the “green factors” when determining suitability for employment.
- The nature and gravity of the offense or conduct
- The time that has passed since the offense, conduct and/or completion of the sentence
- The nature of the job held or sought
4. Compliant Background Screening Policy
In order for employers to stay ahead of the Ban the Box laws, they must have a fluid and compliant background screening policy. Traditionally, the policy would deter claims of discrimination based on specific positions like safety sensitive, manager, or supervisor roles. Now the policy must address the Ban the Box laws and what steps the organization has taken to include certain applicant protections in their policies and compliance with certain federal regulators (i.e. FCRA, EEOC, FTC, and CFPB). This includes new laws affecting the Equal Pay Act, which mandates that employers are no longer allowed to inquire about applicants previous wages.
5. Pre-Adverse/Adverse Action Process
The Ban the Box laws also regulate how employers conduct the pre-adverse/adverse action process. Historically, the employer would provide a pre-adverse action letter along with a copy of the report and federal notice. After it has been determined that the report is accurate and no reinvestigation is required, the employer would send the adverse action letter on the fifth business day along with the report stating that the employer will not move forward with hiring the subject of the report. Most of the Ban the Box laws do include additional notices and evidence an employer must provide when taking adverse action. This may include a 613 (a) disclosure provided by the consumer reporting agency stating public record information was reported and maximum possible accuracy was followed when reporting adverse information. Additionally, if the employer did any further research outside of the scope provided by the background screening organization, that evidence must be provided to the applicant during the review process.
Employers must understand their duty in promoting and fostering a safe work environment for their employees. The most important way to achieve this is by implementing new hire background checks. The most effective way to achieve this is by aligning your business with a competent and compliant background screening organization.
This was written by Cody Farzad, vice president of Employers Choice Background Screening, a nationwide provider of employment screening and employee testing services.