“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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