Ban-the-Box Bandwagon Requires Application Review

On August 11, 2014, New Jersey joined Illinois and at least 11 other states, as well as dozens of cities and local governments, in prohibiting most employers from initially asking about criminal history on job applications. This follows the EEOC’s scrutiny of the use of criminal convictions in the hiring process. As “ban-the-box” increasingly becomes a national initiative, and because states frequently play follow-the-leader with respect to this type of legislation, employers should expect similar legislation to spread to other jurisdictions.

As a consequence, employers would be wise to evaluate whether a criminal history inquiry should be removed from their applications. An employer operating in any of the states or localities with ban-the-box legislation needs to eliminate the question from the application. In the wake of the ban-the-box trend, some national employers have decided to eliminate the criminal history question across-the-board, even in those states that do not (yet) have the prohibition. Smaller employers in a state not yet affected have the choice of whether to continue to monitor the legal environment or use other methods than the application to protect their interests.

While there is merit to the argument that a criminal history should not operate to exclude all applicants, employers also have valid reasons for considering criminal history and in some industries, such as in the financial industry, unique laws and regulations actually require employers to do so. In fact, the New Jersey law and others carve out an exception to the ban when federal or state laws or regulations require the consideration of criminal history. Even the EEOC and the ban-the-box states recognize in some situations a criminal history is a legitimate concern, so long as there is an individualized inquiry and applicants are not automatically screened out because of such history. Avoiding the risks of a negligent hiring claim is another legitimate consideration for why an employer would want to inquire into criminal history and find a way to do so without automatically screening out applicants with such history.

To accomplish these objectives, one possible option would be to ask about criminal history post-application, during the job interview, and allowing the applicant to explain why it does not impact his/her qualifications, or making the inquiry after a conditional offer of employment has been made. Then the employer should analyze other factors such as the date and type of conviction as well as the requirements and sensitivity of the job.

Given these ban-the-box and other laws impacting job applications, now is a good time to review your applications. If you do not, expect that a government agency or plaintiff’s attorney may do so in the future under less opportune circumstances.