Ban the Box legislation, which started out as a civil rights and advocacy campaign, expands its legal reach. New York City and Oregon are the latest jurisdictions to enact this law. Will your organization be ahead of the curve or will you lag behind, risking fines and fiscal repercussions from conscientious consumers?
Criminal justice reform and the impact of collateral consequences, affecting 1 in 4 Americans with arrest and conviction histories, are now heavily under bipartisan review and discussion. Mass incarceration in America has even become a campaign platform topic leading into the 2016 Presidential Election; politicians are scrambling to be on the right side of history related to this issue.
In my opinion, the right to obtain viable employment, which then leads to self-sufficiency, should be considered an American citizen’s unalienable right just like life, liberty and the pursuit of happiness. Think about it. When you are self-sufficient, you have the ability to take care of both your family and yourself by obtaining housing and covering your own food, clothing and medical expenses – wouldn’t those necessities fall under the category of pursuit of happiness?
Ban the Box provides protection against long accepted discriminatory hiring practices. Eliminating either an applicant from a first round job interview or a qualified candidate from an offer of employment, simply because they checked yes to a box asking have you ever been convicted on a crime is discrimination.
Employers will still have an opportunity to perform their due diligence through background checks, but this cannot occur until after the interviewing process has led them to extend a hiring offer to a capable and qualified candidate. New York City and San Francisco have differing interpretations of the legislation, providing greater protections to the formerly arrested or convicted. Their legislatures include clauses stating that negative findings in a background check, which lead to the recension of an offer, must be provided to the candidate including a full explanation of the recension. In addition, San Francisco states that the nature of the conviction must directly be related to the job requirements and/or have a serious impact to potential public safety within the organization.
Whether Ban the Box is eventually passed at the Federal level or through your state or local legislature, depending on the size of your organization policy and procedural modifications may be necessary, including the following considerations and actions:
- Understanding the Ban the Box policy and the impact on your business
- Creating new employment applications that exclude questions related to arrest or criminal convictions
- Collect and dispose/delete outdated versions of employment applications (paper and electronic)
- Updating of Human Resources’ policies and manuals to conform to the current legislation.
- Specialized training for Hiring Managers and all interviewers
- Understanding how to correctly read and process information found in background reports
- Thoroughly documenting of all hiring decisions where conviction history is a factor
In order to be legally in compliance with this fast moving and current Ban the Box legislation, it would be beneficial to begin analyzing your organizational policies and having proactive discussions around this topic.
