Ban the Box creates fair hiring practices
It’s common place on many job applications — the check box that asks “Have you ever been convicted…” Basically, do you have a criminal record?’
This question is leading and sets a dividing line between applicants that have had any criminal offense and those that do not.
Even though it is legal for employers to ask job applicants about criminal history, federal law does prohibit employers from discriminating based on their knowledge of criminal history.
Let that sink in… they can ask, but they can’t use that knowledge in the pre-employment screening process.
Ban the Box is a worldwide campaign that aims to remove questions about criminal convictions in the pre-employment screening process.
Realizing the potential for some subconscious decision-making based on this check box, more than 100 cities have adopted fair-hiring practices and chosen to ban the box on pre-employment screening. There are 18 states with legislation to ‘ban the box,’ although Arkansas is not among them.
Led by grassroots civil and human rights groups, the campaign “Ban the Box” pledges to give applicants a fair opportunity to present their strengths and qualifications before being subject to the stigma of having a criminal record.
“These initiatives provide applicants a fair chance by removing the conviction history question on the job application and delaying the [criminal] background check inquiry until later in the hiring,” criminal records expert attorney Michelle Natividad Rodriguez said.
There is a great volume of precedence set by the federal courts which demonstrates pre-employment screening for criminal records is a violation of Title VII of the Civil Rights Act of 1964.
One of the several cases cited concluded “that it was discriminatory under Title VII for an employer to “follow the policy of disqualifying for employment any applicant with a conviction for any crime.”
In summary, the report recommended to “eliminate policies or practices which exclude people from employment based on any criminal record.”Find out more information at bantheboxcampaign.org .
“Ban the Box” is an international campaign advocating on behalf of ex-offenders, seeking employment. Their goal is to persuade employers to remove the “check box” from hiring records that asks if applicants have a criminal record. Followers of the campaign advocate that this change will allow employers to consider a candidate’s qualifications first, without the stigma of a criminal record.
New York City and Austin Texas are among some of the cities who have recently proposed amendments and ordinances regarding this issues.
The New York City Commission on Human Rights (NYCCHR) recently issued proposed rule amendments regarding the Fair Chance Act. Although this may be a step toward compromise regarding the “Ban the Box” issue, the amendments pose severe compliance challenges for employers. Some potential violations include; 1) Requesting permission to conduct a background check and 2) Using any standard form across multiple jurisdictions that includes a criminal history question regardless of if the form specifies NYC applicants should not respond.
Requiring employers to use a different employment application or form for hiring in NYC creates a significant compliance hurdle that could cost employers thousands of dollars in penalties.
These proposed amendments also prohibit employers from conducting their own search with terms such as “arrest,” “mugshot,” “warrant,” “criminal,” “conviction,” etc. It is unclear if these provisions prohibiting employers from searching for the specified terms or websites are barred from doing so at any point in the hiring process or just prior to extending a conditional offer of employment. These requirements would leave employers without adequate resources to conduct a criminal history search when needed.
A ban the box ordinance was also proposed in Austin, Texas. Although this ordinance is mostly straight forward, there are major concerns regarding a listed requirement to notify applicants in writing if the adverse action decision is based on criminal history.
Employers that conduct background screenings via Consumer Reporting Agencies (CRAs), the Fair Credit Reporting Act (FCRA) requires a specific process to be followed any time an employer is potentially making an adverse decision (i.e., denying employment, terminating an employee, deciding not to promote an individual) based on information contained within a background report – which may or may not contain criminal history information.
Requiring employers to specifically state that the individual’s criminal history is the basis for an adverse decision, extends beyond the federal requirements which presents potential compliance challenges for employers that hire in multiple jurisdictions
Learn more about the Ban the Box campaign and the concerns surrounding it at http://napbs.com/
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