Understand the law: ‘Ban-the-box’ and background checks

Learning how to solicit criminal history helps safeguard organizations, improve chances of hiring best candidates

Kristine Kuhn

Roughly 70 million Americans have some sort of criminal record – nearly one in three Americans of working age. And every week more than 10,000 people are released from prison and face the challenge of re-entry into society. However, a criminal record, even for relatively minor offenses, can be a major barrier to finding employment.

Governments at the local and national levels have taken steps to help people with a criminal history overcome this challenge. “Ban-the-box” laws, which prohibit criminal history questions on job applications, have now been implemented in more than 150 cities and counties and several states. While this legislation has sparked controversy, these laws do not ban background checks or criminal history inquiries, but rather delay them until later in the hiring process. Their goal is to mitigate the stigma of a criminal record by ensuring that employers first consider an applicant’s qualifications before learning of past convictions.

In April 2016, the Obama Administration launched the Fair Chance Business Pledge as a call-toaction for the private business sector “to improve their communities by eliminating barriers for those with a criminal record and creating a pathway for a second chance” by banning the box and otherwise ensuring that criminal history information is used appropriately in hiring decisions. More than 100 organizations – including large companies such as Starbucks, Microsoft, Facebook and Unilever, among
others – have pledged to do so.

The federal Fair Credit Reporting Act requires employers to get applicants’ and employees’ written permission before conducting a thirdparty background check, and to provide them with a copy of the report before rejecting them or denying them a promotion based on report information. The Equal Employment Opportunity Commission (EEOC) has also released guidelines to help employers ensure that their use of criminal history information complies with antidiscrimination laws.

Hiring managers and human resource specialists need to perform due diligence to make sure they are hiring people who will be competent and trustworthy employees. But they should not be automatically excluding qualified individuals because of past offenses that are not “job relevant.” Some jobs, such as those that involve working with children or financial data, will
have strict standards barring people with related criminal histories. For many positions, however, whether an offense is job relevant is not necessarily clearcut. Experienced HR professionals considering a specific job can disagree substantially on whether a particular criminal offense should disqualify an applicant. Because there is no one-size-fits-all approach to evaluating the complex
information on a background report, balancing the goals of due diligence and providing a fair chance can be challenging.

At a minimum, it is critical that employers be familiar with relevant laws and guidelines. The National Employment Law Project’s Ban-the-Box – Fair Chance Employment Guide (www.nelp.org/publication/banthe-box-fair-chance-hiring-stateand-local-guide) provides helpful information on those jurisdictions that have adopted fair-chance legislation. While the state of Washington does not currently have a “ban-the-box” law, Seattle has enacted an ordinance that restricts how private employers can use convictions and arrest records during the hiring process and throughout the course of employment. Pierce County has removed the question about criminal history from its application for County employment, and follows EEOC guidance regarding the consideration of criminal records.

In addition, employers should establish at what point in the hiring process applicants will be asked to disclose criminal history information. For many organizations, it is best to postpone the background check until after a conditional offer of employment is made. Be sure to use reliable background check providers, as criminal record reports are not necessarily accurate or complete.

Lastly, develop a set of internal guidelines and best practices to help guide hiring managers in making consistent and justifiable decisions about criminal histories. Hiring managers need to consider the nature of offenses, the recency of convictions and relevant circumstances and patterns of behavior. In other words, managers need to exercise good judgment rather than apply simple litmus tests, and they will generally need training and guidance in order to do so fairly and appropriately.

As criminal record checks become increasingly common and expected in hiring, it is essential to understand city, state and federal laws governing their use in employment decisions. Developing policies and training hiring managers on how to solicit and utilize criminal history information will help safeguard an organization against violating these laws, and will also improve the likelihood of hiring the best candidate for the job.

Kristine M. Kuhn is an associate professor, Department of Management, Information Systems & Entrepreneurship, at the Washington State University Carson College of Business.