by Thomas C. Lawson, CFE, CII
Ban the Box – Recently questions have arisen concerning how the background check process will be affected by ban-the-box laws such as the August 13, 2014 enactment of the San Francisco City and County’s ordinance which precludes employers of 20 or more employees from including a request for criminal history disclosures in their employment application forms.
Other jurisdictions throughout the U.S. have passed similar laws which seem politically motivated since they do little more than to formally install the original Equal Employment Opportunity Commission’s (EEOC) criminal history use guidance document and recently updated Federal Trade Commission (FTC) and EEOC joint guidance documents as local law.
Essentially these ban-the-box enactments serve as the basis for emphasizing what the EEOC guidance documents have already stated which is to drive home the need to carefully adjudicate the use of criminal histories in the hiring process. Even though ban the box may seem redundant; that does not mean they should be ignored.
What most of these laws draw out first, and what employers must pay close attention to, is compliance with the posting requirements which can vary among jurisdictions.
Most jurisdictions already have aftermarket complaint poster suppliers who address the new posting language. Check with your local or state Chambers of Commerce to see if they offer pre-printed posters which meet the posting requirement.
The next hazard for employers and what seems to be more easily ignored, or simply missed by many human resources departments, is that the criminal history disclosure request resides best in a standalone consent form which provides legal consent for the background check and not in the employment application.
Many are loathe to remove such requests from their application forms but if you don’t and you hire a candidate within a ban the box jurisdiction, your acts will be ripe for scrutiny by plaintiff’s attorneys.
Omitting this component from the employment application is not only a best practice, but is now mandated under these ban-the-box laws, which are growing in popularity. It is still up to the human resources professional to comply with the law even when the pathway to legal definitions and practical applications appear to be dimly lit.
So what do you do if you use a proprietary background check consent form that requests a criminal history disclosure?
With most of the ban-the-box laws there is definitely confusion about whether or not a background check consent form may include requests for criminal history disclosure in ban-the-box jurisdictions.
That confusion is exacerbated by the almost universal statutory language stating that criminal history disclosure requests are prohibited from inclusion on employment applications which background check consent forms are clearly not.
Naturally some plaintiff’s attorneys will argue that consent forms are part and parcel to an employment application and corporate council may agree or not.
EEOC and FTC/EEOC guidance documents, as well as most of the ban-the-box laws, clearly separate the process of seeking consent until only after the first interview and/or conducting the background check only after a conditional offer of employment is made.
In summary, the best practice is to remove any reference to a criminal history in the employment application form and create standalone background check consent forms that either includes or omits the criminal history disclosure request.
Depending on whether or not you are in a ban-the-box jurisdiction, you can choose the appropriate forms. That way you are covered in both circumstances; which goes a long way to keeping the plaintiff’s bar at bay.