The Dangers to U.S. & Worldwide Employers from 'Ban the Box' Legislation

This post was written by Meghan Offer, Gene Connors and Don Innamorato.

To prevent job applicants with criminal records from automatic hiring rejection, cities and states are considering and already adopting so-called “Ban the Box” laws and ordinances. Among the states that have adopted such a law are Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico, and the cities of Atlanta, Baltimore, Chicago and Philadelphia. Among the states mulling such legislation are Rhode Island and Nebraska, and the city of Pittsburgh.

This Alert lauds the policy considerations behind “Ban the Box” type of legislation but points out how it can unintentionally create impossible-hiring decisions and pose huge legal risks for employers.

“Ban the Box” legislation, as discussed in the “Philadelphia Joins the Movement To Ban Inquiries into Arrests and Convictions on Employment Applications,” restricts and, in Philadelphia and other locales, limits covered employers from asking about an applicant’s criminal record during the hiring process. The laws in Connecticut, Hawaii, Minnesota, New Mexico, and Massachusetts, and the bill proposed in Rhode Island, forbid covered employers from asking an applicant about a conviction until after assessment of his or her qualifications for the job. Though the laws in Connecticut, Minnesota and New Mexico apply only to public (meaning government) employers, there is mounting support to amend them to cover private employers, as in Hawaii, Massachusetts, and Philadelphia.

In Hawaii, for example, public and private employers cannot consider felony convictions more than 10 years old. Another example is Pittsburgh. The pending ordinance there would prohibit public employers from conducting a criminal background check until after a conditional offer of employment. Though the employer can withdraw the job offer after learning about a job-impacting criminal record, it must furnish the rejected applicant with any criminal background report, and an explanation of why the conviction conflicts with the position sought, and notify the applicant of her or his right to appeal the rejection.

Employers need to be aware of pending and already-in-effect “Ban the Box” laws in every geographic area where they employ workers, and whether such laws would or do apply to them. When such laws are still pending, as explained below, it is imperative for employers to be heard to make sure that employers’ needs and concerns are met.

Where these laws are already in effect, employers must assess any need to establish or sharpen criminal background check procedures and alert every employee and employer agent involved in its hiring process to all legally required do’s and don’ts.

What legal risks do employers face in complying with these well-intended prohibitions? Imagine the following situation and the “no-win” choice:

  • The federal Occupational Safety & Health Act (“OSHA”) and state and local safety and health laws mandate a safe workplace.
  • Already in place is a “Ban the Box” law that prohibits an employer from conducting any investigation or inquiry into any job applicant’s criminal history prior to a conditional job offer and, after that, no more than three years prior to the application date.
  • To comply with the “Ban the Box” legislation, “you” conduct no initial investigation into the criminal history of any applicant for the position of maintenance worker on the evening shift.
  • After a thorough review of all applications, résumés, references, and interviews to determine who is best qualified, “you” make a conditional offer of employment to that candidate. 
  • “You” now conduct a criminal background investigation into his criminal history, but “going back” no more than three years, as permitted by the “Ban the Box.”
  • A farther-back criminal history investigation would have revealed numerous prior convictions for aggravated assault and other violence by the candidate.
  • You hire the candidate.
  • The new hire assaults a fellow employee.
  • The victim sues your employer and you individually for negligent hire, violation of federal and local safe workplace laws, and other legal causes of action.
  • The court declines to dismiss the lawsuit on the basis of your employer’s required compliance with the no-criminal check law.
  • A jury gets the case after hearing the victim’s attorney close with, “My client would not be here asking for relief had this employer and its HR Department spent only a few minutes and a few dollars to learn what we all know now about the individual they hired….”

This hypothetical scenario is tragic and regrettable in three ways. First, the victim may not have become a victim had the “Ban the Box” law permitted the employer to conduct a full criminal history. Second, even if the jury finds in the employer’s favor, the employer’s public image and its ability to recruit and keep employees might never recover from the inevitable media onslaught during the trial. Third, if the jury finds in the victim’s favor, the damages awarded could be significant.

Other possible scenarios abound. Examples include hacking into the employer’s computer system to steal either employee identities or confidential employer information.

Concerns like this are why it is crucial for employers and others to:

  • Remain alert to pending “Ban the Box” legislation from, for example, chambers of commerce, employer associations, lobbying groups, and employment and government relations attorneys
  • Speak out, collectively and individually, to protect and balance the interests of both individuals with convictions and those of possible victims and employers

This diligence and your voice would increase chances that lawmakers have all the facts they need to create laws that do good and avoid harm. Stated another way, efforts like these can only help make laws that strike the necessary good-harm balance and avoid unimagined, unintended, and unnecessary consequences.

A final word of caution to employers beyond the borders of the United States: expect and be ready for laws like this in most countries in the very near future.

Feel free to direct your questions or concerns on this subject to the authors of this Alert, or to any other Reed Smith attorney of your choosing.

Philadelphia Joins the Movement To Ban Inquiries into Arrests and Convictions on Employment Applications

This post was written by Don A. Innamorato and Meghan O. Offer.

On April 13, 2011, Philadelphia Mayor Michael Nutter signed a new city ordinance that bans Philadelphia employers from asking applicants about their convictions during the initial phases of the hiring process and precludes them from ever asking about arrests which failed to result in a conviction. Due to become effective on July 12, 2011, the Fair Criminal Record Screenings Standards Ordinance (“the Ordinance”) applies to all City agencies (other than the courts and law enforcement agencies) and private employers with ten (10) or more employees working within the City of Philadelphia. Similar to the “Ban the Box” legislation passed by several states and other cities such as Atlanta, Baltimore and Chicago, and pending in Pennsylvania cities such as Pittsburgh, the Ordinance aims to prevent applicants with criminal records from being summarily excluded from the hiring process. 

The Ordinance completely bars employers from ever asking about or basing hiring decisions on an applicant’s history of arrests that failed to result in a conviction. The Ordinance broadly defines forbidden inquiries as any direct or indirect method of gathering information through any mode of communication. Forbidden methods would include job applications and a recruiter’s written or oral requests for information. Although not specifically addressed in the Ordinance, this broad language will also likely preclude any “Google” or other electronic background checks to investigate an applicant’s arrest history.  The Ordinance also prohibits employers from asking about or otherwise investigating an applicant’s conviction history until completion of a “first interview” in person or by phone. Without an interview, the employer would have no right to gather any information regarding the applicant’s record of conviction. During the initial interview, the employer cannot ask about or discuss the applicant’s conviction history unless the applicant volunteers this information. After an initial direct interview, however, an employer is free to investigate the applicant’s conviction history. 

The Ordinance specifies that it does not alter the Pennsylvania Criminal History Record Information Act, 18 Pa.C.S. § 9125, that bars employers from denying employment based on a criminal conviction unless:

  1. the conviction was for a felony or misdemeanor;
  2. the crime has a sufficient connection to the applicant’s suitability for the position, and
  3. the applicant is given written notice of the decision not to hire based on the conviction. 

Finally, although a Philadelphia employer may seek information about an applicant’s convictions after a first interview, how it obtains that information and any notice to the applicant remain governed by the Federal Fair Credit Reporting Act, 15 USC § 1681, et. seq.

Penalties:

Each violation of the Ordinance is a “Class III” offense under the Philadelphia Code that involves a possible $2,000-per-violation fine.

What Covered Employers Should Do Before July 12, 2011:

Covered Philadelphia employers need to take several steps prior to the July 12, 2011 effective date of this Ordinance:

  1. Review and remove from current job applications, including any online applications, any questions or inquiries regarding an applicant’s arrest or conviction record;
  2. Delay any manual or “automatic” criminal background system or procedure (including through third-party vendors) until after a first interview;
  3. Warn, in writing, every recruiter, employee, or employer agent involved in the hiring process not to ask questions or otherwise seek information (as in emails) about an applicant’s past convictions until after the first interview and provide these individuals with social media training to avoid inadvertent violations of this Ordinance;
  4. Avoid any inquiry into arrests that failed to result in conviction.