By: Joseph M. Gagliardo & Lily M. Strumwasser, Laner Muchin & Laura Zaroski, Socius.
The term, “ban the box,” refers to the question on hiring applications that asks if the applicant has a criminal record/conviction and then they have to check the “Yes” box. “Ban-the-box” laws are laws designed to restrict employers from including such questions that ask about prior arrests or convictions on initial employment applications. The purpose behind the law is to adopt fair hiring policies to reduce unfair barriers to the employment of people with criminal records. The ban-the-box movement requires employers to act – and fast. Numerous states and cities have enacted such laws and we expect more to follow in the near future.
Illinois’ ban-the-box equivalent, entitled the Job Opportunities for Qualified Applicants Act, takes effect January 1, 2015. At that time, Illinois will join other states that already prohibit private and public employers from asking about an applicant’s criminal history until after the employer selects the applicant for an interview or provides the applicant with a conditional oer of employment. Illinois’ Act applies to all private sector employers with fifteen or more employees.
There are exceptions to the rule. The Act does not apply to: (1) jobs that cannot be held by convicted criminals under federal or state law, (2) jobs requiring licensing under the Emergency Medical Services System Act, and (3) jobs requiring fidelity bonds. The Act gives the Illinois Department of Labor (“IDOL”) the power to investigate alleged violations and authorizes the IDOL to impose civil penalties up to $1,500 for violations of the Act. We expect that the IDOL will start pursuing and finning employers for violations as soon as the act goes into effect.
Private employer ban-the-box laws currently exist in the following 13 states: California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Nebraska, New Jersey, New Mexico and Rhode Island, as well as the numerous cities which have passed similar laws. Pending legislation exists in Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio, as well as numerous additional cities.
Some states’ laws prohibit employers from asking about criminal history in the initial employment application before conducting an interview, while other laws prohibit such inquiries until after the employer makes a conditional oer of employment. Be wary as ban-the-box laws vary in terms of what types of criminal history questions employers may ask applicants. For example, some laws only allow employers to ask about specific convictions and explicitly prohibit employers from asking about non-conviction arrests or expunged records. Exemptions can vary as well, with exclusions for facilities or employers that provide programs, services or care to minors or vulnerable adults. As each state’s ban the box law may vary, it is important for employers to reevaluate their pre-employment and hiring practices. Employers impacted by ban-the-box laws who do not update their applications and pre-employment processes risk being investigated and ned on an individual and potentially class-wide basis. Employers who operate in different states need to be diligent to make sure their applications are tailored to each state as not to violate that state or cities’ Act requirements.
Have your HR department or labor counsel review your employment applications and company policies to ensure that questions regarding an applicant’s criminal history are compliant with applicable laws. Additionally, employers should consider providing compliance training to employees involved in the interviewing and hiring process to make sure they are knowledgeable and compliant with the new laws.