When Do Employers Ban the Box? | DCR Workforce Blog

When Do Employers Ban the Box?

ban the boxHow does a company balance the need to verify that potential workers would not disrupt the safety of the workplace while protecting the civil rights of each candidate?  It was recently disclosed that a company which handles about 65% of all background check investigations conducted by government contractors was responsible for both the checks conducted on Eric Snowden and the man identified as the Navy Yard Shooter.  The checks did reveal information about both of them indulging in activities which needed further investigation. The red flags raised in the background checks were set aside or completely ignored, making us question the very purpose of background checks and the process for making effective use of them.

There is no doubt that background checks serve a really important purpose, but the Equal Employment Opportunities Commission (EEOC) and other state and local agencies are on guard to ensure that these concerns do not unfairly eliminate certain groups from accessing legitimate job opportunities.

Many job applications contain a box to check if one has a criminal record.  Ten states and 52 municipalities have enacted ‘ban the box’ legislation that prohibits questions regarding one’s criminal history.  The legislation differs in the time period under consideration (e.g., crimes committed prior to a certain date), the type of offense (e.g., some laws allow questions regarding murder or sex offender convictions), or the companies affected by the law (e.g., city

Employers routinely enquire into the criminal history of applicants during an application process, but few are well-informed about what can be asked and how the information can be used. Questions in this regard abound:

  • What is the EEOC’s guidance on conducting background checks? Are we compliant?
  • What makes background checks discriminatory? When do we conduct them? And, when do we not conduct them?
  • At what stage of the hiring process do background checks become relevant?

According to a recent survey conducted by PeopleG2, a human capital due diligence firm, 74% of companies ask applicants about their criminal history at the time of initial application and 94% believed that their company is compliant with the EEOC’s guidelines in the matter. The fact that all the respondents were HR professionals working with companies which employ 25000 or more workers speaks volumes about the confusion in the minds of employers about what is compliant with the EEOC’s guidelines.

In most legislation, the question is not to be eliminated totally, and may be asked at a later stage in the hiring process when a conditional offer of employment is made.  The intent is to ensure the decision to hire is more individualized to the specific position and is not just an automatic rejection.

In 2012, the EEOC issued guidance that allows the use of criminal checks when employers consider the crime in relation to the responsibilities of the position being offered.  The EEOC also expects employers to consider how much time has passed since the conviction. In June, the EEOC sued two large employers, alleging they used criminal background checks in ways that could disproportionately affect African-Americans.

We have talked more than once in this very blog about how it is important to take into consideration the nature of the crime; the time elapsed since the crime and the nature of the job in question before deciding whether to hire a candidate. When rejected, the person being excluded should be informed of the decision in writing, explaining the connection between the job and the crime, and allowed to offer a rebuttal.

Employers will have to verify the applicability of the ‘ban the box’ law in the jurisdictions they operate in, to make sure that they are compliant with all applicable legislation. When hiring contingent workers through staffing agencies, make sure that contractual agreements reflect applicable laws and your corporate policies.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.