On January 1, laws in Minnesota, Rhode Island, and the city of Buffalo, New York, will begin to take effect to stop employers from enquiring about criminal history at the beginning of the application process. The regions are the latest in a swathe of states, cities and counties that have embraced similar legislation, although most have limited the law to public employers. While most of the legislation simply stops employers from asking about convictions on written applications, some laws go so far as to legally postpone the question of criminal history until the second interview.
States and cities with Ban-the-Box laws for private employers
- Rhode Island
- Seattle, Washington
- Newark, New Jersey
- Buffalo, New York
- Philadelphia, Pennsylvania
- New Orleans, Louisiana
If this style of legislation continues with the same momentum of recent years, it will impose a heavy burden on HR staff who deal with employees in multiple states -- or even multiple cities in the same state. Some multi-state companies, including Target, have already voluntarily removed questions about criminal history from applications nationwide.
As laws change in various regions, it can be hard to keep up, according to lawyer Maria Greco Danaher, a shareholder in the Pittsburgh Ogletree Deakins office.
"We really have to keep track of the status of these ban the box laws ... so before formal written applications are requested, the employer should understand whether or not ban the box applies."
Greco Danaher said she has seen several clients with employees in more than one region remove all criminality questions for simplicity, even in states without Ban-the-Box legislation.
"I think those clients [that have banned the 'box'] see it as a fairness issue. The question is allowed to be asked at some point in the process, and those clients are satisfied with that," she said.
Even for employers in states without these laws, the EEOC has released guidelines in the spirit of protecting applicants with a criminal history. And though it is still legal to enquire about criminal convictions on written applications in these states, employers should nevertheless justify such enquiries so they cannot be accused of discrimination.
How to safely enquire about previous convictions in any state
- Do not ask about criminal convictions on written applications, or during the first interview
- Do not perform criminal background checks before the first interview
- When you do ask, keep any questions about criminal convictions relevant to the position at hand
- If you must have a policy that screens applicants for criminal conduct, ensure that there is a clearly justified policy that excludes people with specific offenses relevant to the job
- Ensure everybody involved in the interview process is thoroughly aware of the law
- Read over the applicable state or city law, as slight variations and exceptions apply in each area
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