'Ban the Box' Legislation

The paternalistic nature of this legislation “echoes” laws already being imposed by several cities and states on use of applicant arrest records. Jurisdictions including the states of California and New York and the city of Philadelphia forbid inquiries into applicant arrests that failed to lead to convictions, because an arrest, in and of itself, implies no guilt. In states such as Illinois and Massachusetts, employer “use” of an arrest record is an unfair employment law practice.

Employers beyond such “steer-clear-of-arrests” jurisdictions must be wary of using arrest records in hiring. Guidelines from the Equal Employment Opportunity Commission that enforce federal anti-discrimination laws warn that use of arrest records has a disparate impact on protected groups such as African-American males, and therefore cannot be used to routinely exclude applicants from employment. While these guidelines contain limitations, employers within the United States need hiring practices to avoid potential pitfalls associated with arrest inquiries.

'Ban the Box' Legislation

“Ban the Box” legislation goes beyond protecting applicants with arrest records and restricts and limits covered employers from asking about an applicant's criminal record during hiring. Laws in Connecticut, Hawaii, Minnesota, New Mexico, and Massachusetts, and those proposed in Rhode Island, forbid employers from asking about convictions until initial assessment of the applicant's qualifications. In Connecticut, “inquiry into and consideration of conviction records can take place only after the prospective employee receives a conditional offer of employment.” The Connecticut, Minnesota and New Mexico laws currently cover only public (meaning government) employers, but there is pressure to extend them to private employers, as do Hawaii, Massachusetts, and Philadelphia.

In Hawaii, for example, public and private employers cannot consider felony convictions older than 10 years. A pending Pittsburgh ordinance prohibits public employers from performing criminal background checks until after a conditional offer of employment. Though withdrawal of the offer can occur after discovery of a job-impacting criminal record, the employer must furnish the rejected applicant with any criminal background report, explain why the conviction conflicts with the position sought, and notify the applicant of the option to appeal the rejection. Philadelphia's ordinance bars that city's agencies (other than courts and law enforcement agencies) and private employers with 10 or more employees working within the city from ever seeking information or basing hiring decisions on applicant arrests that result in no conviction and prohibits employers from seeking conviction information until after a “first interview.” Without an interview, the Philadelphia employer has no right to information regarding convictions.

These laws on state and local levels are why employers must remain alert for pending and enacted “Ban the Box” laws in every geographic area where they employ workers, and assess whether such laws would or do apply to them. When such laws are still pending, as explained below, employers need to take all necessary steps to make sure that the needs and concerns of all employers in that jurisdiction are met.

Do's and Don'ts

Where these laws are already in effect, employers need to establish or sharpen their criminal background check procedures and alert every employee and employer-agent in its hiring process to every legally required “do” and “don't.”

What legal risks do employers face in complying with these well-intended prohibitions? Imagine the following situation and the “no-win” choice:

• The federal Occupational Safety and Health Act and state and local safety and health laws mandate that employers provide employees with a safe place to work.
• Already in place is a “Ban the Box” law that prohibits employers from conducting investigations or other inquiries into job applicant criminal histories prior to a conditional job offer and, after that, no more than three years prior to the application date.
• To comply with the “Ban the Box” legislation, “you,” the employer, conduct no initial criminal history investigation of any applicant for the position of maintenance worker on the evening shift.
• After thoroughly reviewing all applications, r'sum's, references, and conducting interviews to determine who is best qualified, you make a conditional offer of employment to a candidate.
• After the conditional offer of employment, you conduct a criminal background investigation into the candidate's criminal history, but only three years, as permitted by the “Ban the Box” law. The criminal background check reveals no criminal history.
• A more extensive criminal history investigation would have revealed prior convictions of the candidate for aggravated assault and other violence four to 10 years ago.
• You hire the candidate under the mistaken belief that he has no criminal record, particularly as it relates to the night maintenance vacancy.
• While on duty, the new hire assaults a fellow employee.
• The victim sues you, as the employer, and you, individually, for negligent hire, violation of federal and local safe workplace laws, and other legal causes of action.
• The court declines to dismiss the lawsuit on the basis that you, as an employer, had no choice but to comply with the applicable no-criminal background check law.
• A jury gets the case after hearing the victim's attorney close with, “My client would not be here asking for relief had this employer and its Human Resources Director spent only a few minutes and a few dollars to learn what we all know now about the individual they hired ' .”

This hypothetical scenario is tragic and regrettable in at least three ways. First, the victim may not have become a victim had the “Ban the Box” law permitted the employer to conduct a full criminal history. Second, even if the jury finds in the employer's favor, the employer's public image and its ability to recruit and keep employees are tarnished, perhaps forever, by the inevitable media onslaught during the trial. Third, if the jury finds in the victim's favor, the damages awarded could be significant.

That is only one possible scenario. Another is hiring someone with identity and data theft convictions who later hacks into “your” computer system to steal either employee identities or confidential employer information. Either or both would expose “you” to a plethora of legal causes of action, not to mention potential regulatory and agency penalties. And these are only two of many potential fact situations.

What to Do

Concerns like this are why employers must:

• Remain alert to pending “Ban the Box” legislation from, for example, chambers of commerce, employer associations, lobbying groups, and employment and government relations attorneys.
• Speak out, collectively and individually, to protect and balance the interests of both individuals with convictions and those of possible victims and employers.

This diligence and your voice may increase chances that lawmakers have all the facts to create laws that do good and avoid harm. Stated another way, efforts like these can only help make laws that strike the necessary good-harm balance and avoid un-thought-out, unintended, and unnecessary consequences.

Conclusion

Finally, a warning to employers beyond the borders of the United States: Check to learn whether your jurisdiction already has such a law; if it does not, remain alert because, in the very near future, it is likely one will be proposed!

This article first appeared in the Employment Law Strategist, a sister publication of this newsletter.

Eugene K. Connors is a partner in Reed Smith's Pittsburgh, PA, office. Meghan Offer is an associate in the firm's Princeton, NJ, office. Don A. Innamorato, a partner in the Princeton office, also contributed to the article.

To prevent job applicants with criminal records from being automatically rejected, cities and states are considering and already adopting so-called “Ban the Box” laws and ordinances. Among the states that have adopted such laws are Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico, and the cities of Atlanta, Baltimore, Chicago and Philadelphia. Among those mulling such legislation are Rhode Island and Nebraska, and the city of Pittsburgh, PA.

A growing number of cities and states are implementing “Ban the Box” types of legislation in what is being described as an effort to ensure that employers are implementing fair measures when screening and identifying persons who may or may not have criminal records ' and to assist in the successful reintegration of formerly incarcerated persons back into the community. While the policy considerations behind “Ban the Box” type of legislation should be lauded, the reality is that this type of legislation can unintentionally create impossible hiring decisions and pose huge legal risks for employers.

What's the Problem?

The paternalistic nature of this legislation “echoes” laws already being imposed by several cities and states on use of applicant arrest records. Jurisdictions including the states of California and New York and the city of Philadelphia forbid inquiries into applicant arrests that failed to lead to convictions, because an arrest, in and of itself, implies no guilt. In states such as Illinois and Massachusetts, employer “use” of an arrest record is an unfair employment law practice.

Employers beyond such “steer-clear-of-arrests” jurisdictions must be wary of using arrest records in hiring. Guidelines from the Equal Employment Opportunity Commission that enforce federal anti-discrimination laws warn that use of arrest records has a disparate impact on protected groups such as African-American males, and therefore cannot be used to routinely exclude applicants from employment. While these guidelines contain limitations, employers within the United States need hiring practices to avoid potential pitfalls associated with arrest inquiries.

'Ban the Box' Legislation

“Ban the Box” legislation goes beyond protecting applicants with arrest records and restricts and limits covered employers from asking about an applicant's criminal record during hiring. Laws in Connecticut, Hawaii, Minnesota, New Mexico, and Massachusetts, and those proposed in Rhode Island, forbid employers from asking about convictions until initial assessment of the applicant's qualifications. In Connecticut, “inquiry into and consideration of conviction records can take place only after the prospective employee receives a conditional offer of employment.” The Connecticut, Minnesota and New Mexico laws currently cover only public (meaning government) employers, but there is pressure to extend them to private employers, as do Hawaii, Massachusetts, and Philadelphia.

In Hawaii, for example, public and private employers cannot consider felony convictions older than 10 years. A pending Pittsburgh ordinance prohibits public employers from performing criminal background checks until after a conditional offer of employment. Though withdrawal of the offer can occur after discovery of a job-impacting criminal record, the employer must furnish the rejected applicant with any criminal background report, explain why the conviction conflicts with the position sought, and notify the applicant of the option to appeal the rejection. Philadelphia's ordinance bars that city's agencies (other than courts and law enforcement agencies) and private employers with 10 or more employees working within the city from ever seeking information or basing hiring decisions on applicant arrests that result in no conviction and prohibits employers from seeking conviction information until after a “first interview.” Without an interview, the Philadelphia employer has no right to information regarding convictions.

These laws on state and local levels are why employers must remain alert for pending and enacted “Ban the Box” laws in every geographic area where they employ workers, and assess whether such laws would or do apply to them. When such laws are still pending, as explained below, employers need to take all necessary steps to make sure that the needs and concerns of all employers in that jurisdiction are met.

Do's and Don'ts

Where these laws are already in effect, employers need to establish or sharpen their criminal background check procedures and alert every employee and employer-agent in its hiring process to every legally required “do” and “don't.”

What legal risks do employers face in complying with these well-intended prohibitions? Imagine the following situation and the “no-win” choice:

• The federal Occupational Safety and Health Act and state and local safety and health laws mandate that employers provide employees with a safe place to work.
• Already in place is a “Ban the Box” law that prohibits employers from conducting investigations or other inquiries into job applicant criminal histories prior to a conditional job offer and, after that, no more than three years prior to the application date.
• To comply with the “Ban the Box” legislation, “you,” the employer, conduct no initial criminal history investigation of any applicant for the position of maintenance worker on the evening shift.
• After thoroughly reviewing all applications, r'sum's, references, and conducting interviews to determine who is best qualified, you make a conditional offer of employment to a candidate.
• After the conditional offer of employment, you conduct a criminal background investigation into the candidate's criminal history, but only three years, as permitted by the “Ban the Box” law. The criminal background check reveals no criminal history.
• A more extensive criminal history investigation would have revealed prior convictions of the candidate for aggravated assault and other violence four to 10 years ago.
• You hire the candidate under the mistaken belief that he has no criminal record, particularly as it relates to the night maintenance vacancy.
• While on duty, the new hire assaults a fellow employee.
• The victim sues you, as the employer, and you, individually, for negligent hire, violation of federal and local safe workplace laws, and other legal causes of action.
• The court declines to dismiss the lawsuit on the basis that you, as an employer, had no choice but to comply with the applicable no-criminal background check law.
• A jury gets the case after hearing the victim's attorney close with, “My client would not be here asking for relief had this employer and its Human Resources Director spent only a few minutes and a few dollars to learn what we all know now about the individual they hired ' .”

This hypothetical scenario is tragic and regrettable in at least three ways. First, the victim may not have become a victim had the “Ban the Box” law permitted the employer to conduct a full criminal history. Second, even if the jury finds in the employer's favor, the employer's public image and its ability to recruit and keep employees are tarnished, perhaps forever, by the inevitable media onslaught during the trial. Third, if the jury finds in the victim's favor, the damages awarded could be significant.

That is only one possible scenario. Another is hiring someone with identity and data theft convictions who later hacks into “your” computer system to steal either employee identities or confidential employer information. Either or both would expose “you” to a plethora of legal causes of action, not to mention potential regulatory and agency penalties. And these are only two of many potential fact situations.

What to Do

Concerns like this are why employers must:

• Remain alert to pending “Ban the Box” legislation from, for example, chambers of commerce, employer associations, lobbying groups, and employment and government relations attorneys.
• Speak out, collectively and individually, to protect and balance the interests of both individuals with convictions and those of possible victims and employers.

This diligence and your voice may increase chances that lawmakers have all the facts to create laws that do good and avoid harm. Stated another way, efforts like these can only help make laws that strike the necessary good-harm balance and avoid un-thought-out, unintended, and unnecessary consequences.

Conclusion

Finally, a warning to employers beyond the borders of the United States: Check to learn whether your jurisdiction already has such a law; if it does not, remain alert because, in the very near future, it is likely one will be proposed!

This article first appeared in the Employment Law Strategist, a sister publication of this newsletter.

Eugene K. Connors is a partner in Reed Smith's Pittsburgh, PA, office. Meghan Offer is an associate in the firm's Princeton, NJ, office. Don A. Innamorato, a partner in the Princeton office, also contributed to the article.