How employers can respond to new ’ban-the-box’ laws
The "ban-the-box" movement is growing, as nearly 30 states have restricted employers from asking job seekers about criminal convictions until later in the hiring process. States and cities representing nearly every region of the country have adopted the policy, which gained momentum following a 2015 endorsement from former President Obama.
As each state or city carries different variations of the law, employers may wonder how to respond in regards to their own hiring operations. While some ban-the-box legislation applies only to public companies, the law is quickly expanding to private businesses as well.
For example, California's recently enacted Assembly Bill 1008 expands ban-the-box to all organizations with five or more workers. In light of AB 1008 and similar laws, employers that screen applicants through criminal records should carefully review their background screening-related policies and procedures.
Documentation such as job applications, offer letters and recruiter guidelines should be evaluated during this process. Organizations may need to update documents related to federal state fair credit reporting act compliance, including background check authorization and disclosure forms and "adverse action" notifications.
All employers must abide by regulations set forth by the Equal Employment Opportunity Commission (EEOC), particularly the commission's Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. The EEOC advises companies to follow best hiring practices, among them "removal from employment applications the question that asks job applicants to self-disclose their criminal record," which lies at the heart of ban-the-box efforts.
What about the local level?
Hiring managers must be cognizant of local and state statutes to ensure compliance with ban-the-box legislation. In Chicago, employers are required to comply with Illinois law as well as a city ban-the-box ordinance.
As of January 2015, it became unlawful in Illinois for public and private organizations with 15 or more employees to ask about a candidate's criminal history prior to an individual evaluation of that person's qualifications. The state law places no limitations on the criminal information that may be considered, or how the data is used in making a hiring decision. Nor does the law require employers to notify applicants of the reason they were turned down for the job.
However, Chicago's version of ban-the box necessitates full disclosure of a job offer withdrawn based on an individual's criminal history. The notification must affirm that criminal conduct was a factor in the hiring decision, representing a major deviation from what the Illinois' statute mandates.
Ultimately, it's up to employers to stay abreast of ever-evolving ban-the-box ordinances.
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