Will Local Ban-The-Box Measures Spread? 2017 Trend Alert

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Los Angeles is the latest major city to pass a Ban-the-Box measure (Ordinance 184652) applicable to private employers. It will become effective January 22, 2017 and will be enforced beginning in July 2017. 

Other major cities with Ban-the-Box laws include:

And don’t forget that eight states have Ban-the-Box measures on their books that are applicable to private employers: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.

What Is Ban The Box? 

In its most basic form, it means that an employer cannot ask on the job application about criminal history (i.e., arrests or convictions). Generally, an employer must wait until a conditional offer of employment has been extended to inquire about criminal history and conduct a background check. 

Ban the Box moves the criminal history inquiry until later in the process to afford ex-offenders the opportunity to be judged on their merit and not their past. At least in theory that’s what is supposed to happen as a result of these measures, which are often also referred to as fair hiring policies.

But, nothing in life is simple. Often, ban-the-box measures go beyond simply requiring employers remove the criminal history question from the job application to include additional measures, such as requiring employers to:

  • Conduct an individualized assessment if criminal history is discovered during an background check (e.g., Austin, San Francisco, Los Angeles)
  • Advise the applicant the reason for their decision to not hire if it includes criminal history information (e.g., Chicago, Portland, San Francisco, Seattle, Washington, DC)
  • Provide a specific amount of time to allow the applicant to review and respond to criminal history information discovered as a result of a background check (e.g., Philadelphia, San Francisco)
  • Provide disclosures about the law (e.g., Philadelphia, San Francisco, Washington, DC)
  • Avoid restrictive language in their advertisements (e.g., Seattle)

Important: Although these bullet points cover some of the key requirements, they are not exhaustive as Ban-the-Box measures are similar but not identical.

And, and, and (yes, I meant three ands): Don’t forget that as a private employer you must also comply with the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) if you receive background check reports from a third-party background screening company.

If You're In A Ban-The-Box Location

For employers in a jurisdiction that has a Ban-the-Box law, it’s important to understand your obligations.

A comprehensive background screening policy will assist any employer seeking  compliance with federal and state law.  If that is on your “to do” list for 2017, we can assist in developing policies and procedures.

This guest post first appeared on Arnall Golden Gregory LLP's Workforce Compliance Insights blog. 

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Montserrat C. Miller

Montserrat C. Miller

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Montserrat C. Miller is a partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C. Ms. Miller helps clients with domestic and international privacy and data security issues they face. Ms. Miller is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP). She is co-chair of the firm’s Background Screening Industry Group. Ms. Miller served as Washington Counsel to the National Association of Professional Background Screeners (NAPBS), an association of employment and tenant background screening companies.

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