Ban-The-Box is a growing trend with no signs of stopping. There are similarities among the various pieces of legislation that can help you anticipate how your policies might change when it reaches you.
To date, 13 states and over 60 cities and counties have passed Ban-The-Box legislation. One of the most recent was passed in August 2014 in New Jersey by Gov. Chris Christy, mandating companies employing more than 15 employees to comply with the Opportunity to Compete Act starting on March 15, 2015.
New Jersey’s Act is similar to its predecessors. Commonly, these acts apply to companies over a specified size, will restrict when in the hiring process you can ask about criminal history (rather than saying you can’t ask altogether), and may restrict what type of records you can use when making your hiring decision (similar to a long-standing CA law that restricts reporting of criminal records to convictions within 7 years). Many also include additional standards when taking Adverse Action. Certain types of companies and positions are usually noted as exclusions, such as law enforcement and those working with vulnerable populations, which follow other stringent requirements.
The trick is to know what applies to you and how… don’t just cross your fingers and hope that you’re close enough to compliance. NJ’s fines start at $1,000 for the first offense, $5,000 for the second and $10,000 thereafter.
Ban-The-Box & Individualized Assessment
When we published Making the Decision – My Candidate Has a Hit in April, discussing how to weigh your decision when you candidate has criminal records, we mostly focused on EEOC Individualized Assessment guidelines as well as how it correlates with Ban-The-Box legislation. Both the EEOC and Ban-The-Box have the same underlying theme: the disparate impact of criminal records in specific populations leading to increased difficulty in competing for a job.
What should you do? Be Prepared When Ban-The-Box Reaches You!
If your area is getting ready to implement Ban-The-Box legislation, contact your attorney to ensure your policies are compliant with the new law and do not risk negligent hiring or abandonment other laws and regulations by which you must still abide. You can also preemptively adapt your policy if the laws are creeping in your direction or if you feel such a model is appropriate for your business. Just remember, you should not refrain from running background screens altogether – you still have a due diligence to ensure safety of your workers and customers... Just follow the laws when you run a background check!
Among many of the organizational challenges these laws can bring, a drawn-out hiring process in our extremely fast paced world is one of them! A strategy we’ve seen is splitting up the background screen by running employment, education and license verifications early on in the interview process, followed later by criminal searches. In the past, criminal preceded verifications. By switching the order, you can keep up the pace of your background checks without risk of violating Ban-The-Box.
In Conclusion
Know the laws in your area. Keep up with the changes when they apply to you. And, make sure your strategy includes a comprehensive background screen regardless of when you investigate an applicant’s past.
Choice Screening is here to answer any questions you may have!
Has Ban-The-Box reached you yet? Tells us about your experience! Don’t forget to share if you like what you read!
