Check This [Box] Out: Ban the Box Legislation Continues to Gain Momentum

An increasing number of cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background, giving momentum to the “ban the box” movement. The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions. Proponents of the movement say that such legislation will help remove unfair employment barriers to job applicants with criminal histories.

Illinois became the latest state to enact “ban the box” legislation on July 19, 2014, when Illinois Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act. The law, which takes effect on January 1, 2015, prevents certain employers from inquiring about or requiring disclosure of an applicant’s criminal record or criminal history until the applicant is notified that he or she has been selected for an interview or has been given a conditional offer of employment. Similarly, California’s recently enacted “ban the box” law, which currently only covers public sector employers, prohibits asking an applicant about criminal convictions until the applicant reaches a certain stage of the hiring process.

San Francisco will be the next jurisdiction to officially hop on the “ban the box” bandwagon when the city’s Fair Chance Ordinance takes effect on August 13, 2014. The Ordinance will broaden the state-wide legislation and cover private sector employers with 20 or more employees who have employees that will provide all or substantially all of their work in San Francisco. The Ordinance will prohibit employers from asking about, requiring disclosure of, or considering the following at any stage in the hiring process:

-          Arrests not leading to a conviction, unless an arrest is under criminal investigation or trial;

-          participation in a diversion program;

-          expunged convictions;

-          Determinations made in the juvenile justice system;

-          convictions more than seven years old; and

-          criminal offenses other than felonies or misdemeanors.

Employers that are covered by the Ordinance may only ask about an applicant’s conviction history or unresolved arrests after the individual has participated in an interview or has received a conditional offer of employment. In making an employment determination, covered employers may only consider convictions and unresolved arrests that directly relate to the applicant’s ability to perform the job.

The common theme across the “ban the box” laws is that the timing of any inquiries into criminal histories is key. With the flurry of recent “ban the box” legislation, and other jurisdictions, including New York City, currently considering laws on the subject, all employers should review their hiring practices and application materials—including web-based job applications—to ensure compliance with all newly implemented “ban the box” laws.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Global Employment Law Group | Attorney Advertising

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