Despite how some may make it sound, spreading Ban the Box laws do not prohibit employers from using criminal background checks. Instead, the laws are designed to keep the question, “Have you been convicted of a crime?” off job applications to give applicants with a criminal history a greater chance of getting through an employer’s initial “weeding out” process.
Even the Equal Employment Opportunity Commission (EEOC) has acknowledged that employers have the right to use criminal background information in employment decisions.
However, it is clear that some Ban the Box initiatives impose more restrictive conditions on the use of criminal background checks. These limitations often are in addition to the already narrow procedures suggested in the EEOC guidelines for the use of arrest and conviction records in hiring.
The basic purpose of both Ban the Box and the EEOC guidelines is to improve the chances of ex-offenders finding jobs. When one in four Americans has an arrest or conviction record, the pool of potential employees with a completely clean criminal history is small. And all of us would agree that having an ex-offender return to civil society with a stable job and the income afforded thereby is far better than becoming a repeat, repeat, repeat offender. Clearly, this desirable outcome is harder (if not impossible) to achieve if you impose a blanket exclusion on hiring for any crime.
This all creates a moving target for employers who are trying to comply with the rules and still make good hires. The EEOC has presented a difficult but stable policy position over the past couple years, but Ban the Box is another story.
The State of Ban the Box
There are now at least 12 states and 66 cities, counties, and other jurisdictions, including the District of Columbia, that have some form of Ban the Box legislation. Other states and jurisdictions are actively considering adopting similar rules. In all cases, Ban the Box forbids the use of blanket exclusion policies that would make it very unlikely for ex-offenders to even be considered for a job.
The problem is that there are many local variants on the theme requiring different processes. Thus, in one jurisdiction, a business might have to wait until they are at the point of offering a job to someone before they can execute a criminal background check. In others, it might be when the applicant is selected for an interview, and so forth.
An employer who hires in more than one Ban the Box jurisdiction might have to use very different employment processes. These disparate processes introduce cost and time to an already complicated recruiting and onboarding scenario. Even an employer who hires in only one jurisdiction faces an uncertain prospect where local and Federal law may conflict, or when local rules are not tested or clear.
A Strategy for Compliance
We think an employer’s best general strategy is to devise an employment process that complies with the EEOC guidelines, and then evaluate whether it also complies with the local Ban the Box rules. Blanket exclusion policies are non-compliant under EEOC and most Ban the Box, and therefore should be avoided.
Given this, the EEOC process, with its criteria for exclusions based on factors that are “job-related and a business necessity,” leads to individualized assessments that are the aim of most Ban the Box laws. This process may raise routine hiring costs for employers, but it does offer a compliance strategy that can avoid the much higher costs of litigation.
Finally, there is one more trend emerging that may help to reduce employers’ liabilities in hiring. A number of states have enacted laws to make negligent hiring and retention lawsuits less commonplace, with one explicit goal being to improve convicts’ chances for re-entry. If laws like these become widespread, the employers’ incentive to use blanket or aggressive criminal background exclusions could be lowered.
Taken together, well-designed background check processes and limited liability might actually improve the prospects for anti-recidivism. That would be a win for all.