Did you know that over 68 million Americans have some type of criminal history? About as many Americans have criminal records as have college degrees. If you ask about criminal history on your applications to eliminate applicants with criminal records you may not just be eliminating one-third of your potential employees-you may be breaking the law!
Most states restrict employers from using information regarding arrests that did not lead to conviction or records that have been expunged or sealed as a factor in the hiring process. Thirty-one states and over 150 cities and counties have enacted some type of “ban the box” or “fair chance” law or ordinance.
Ban the box laws prohibit employers from inquiring or seeking information about criminal history until later in the hiring process, generally after an interview has been granted or a conditional offer of employment has been made. This allows the employer to determine whether an applicant is qualified for the position before making a judgment about the applicant’s criminal history.
Fair chance laws also delay inquiries about criminal history, and require employers to consider factors such as the age of the applicant at the time of the offense, the length of time that has passed since the offense, and any mitigating conduct that has occurred since the offense. Employers must then perform a written assessment to determine how the nature of the criminal offense and the mitigating factors relate to the position sought. The District of Columbia has a fair chance law which requires employers to wait until after a conditional offer to inquire about criminal history, and allows the conditional offer to be withdrawn only for a reasonable business purpose after considering job-relatedness and rehabilitation. Penalties for failing to follow these provisions can cost an employer up to $5000 per applicant!
Are you familiar with the ban the box and fair chance laws in your jurisdictions? Are your applications, interview procedures, and background check practices up to date? The attorneys at myHRcounsel can help you come into compliance with these increasingly prevalent laws and avoid costly penalties.