Ban-The-Box Update on the Use of Criminal History in Hiring Decisions

By: Lewis Brisbois' Labor & Employment Team

In recent years, more than 30 states and 150 local governments have enacted “Ban-The-Box” legislation limiting how and when employers may inquire about an applicant’s criminal history – the rationale being that employers should first consider an applicant’s qualifications rather than making snap hiring decisions based on the applicant’s prior conviction(s) and/or arrest records. The Equal Employment Opportunity Commission (EEOC) and state-level equivalents have found that decisions based on an applicant’s criminal history can have a disparate impact on race and national origin. Moreover, proponents of the movement argue hiring purely based on qualifications has served to not only increase employee retention, but also to effectively decrease recidivism rates around the country.

Despite the obvious pros of this Ban-The-Box legislation, it was not until the passage of the Fair Chance to Compete for Jobs Act (Fair Chance Act or the Act), as part of the National Defense Authorization Act (NDAA) in December 2019, that there was any meaningful guidance from our federal legislators on the topic, and even then, the Act is rather limited in scope.

In pertinent part, the Fair Chance Act, which went into effect on December 20, 2021, prohibits federal agencies and contractors from requesting an applicant’s criminal record before a conditional offer of employment has been made. Notably, the Act only applies to applicants for jobs within the scope of a federal contract (not strictly private employers) and expressly excludes positions with access to classified information or those vested with national security duties.

To that end, private, multi-state employers will continue to face difficulty in navigating the various state and local ordinances in this regard and as such should continue to, at a minimum, follow the best practices previously issued by the EEOC, including:

  1. Eliminating policies or practices that exclude people from employment based on any criminal record;
  2. Training managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination;
  3. Developing a “narrowly tailored” written policy and process for screening applicants and employees for criminal conduct and training managers, hiring officials, and decision makers on how to enforce it;
  4. Limiting inquiries regarding criminal records to records for which an exclusion would be job related and consistent with business necessity; and
  5. Keeping applicants’ records confidential.

Lewis Brisbois employment attorneys are here to help you navigate the patchwork of Ban-The-Box rules nationwide.

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