“Ban the Box” Gains Momentum, At Least with Public Employers – Tennessee Becomes Latest State to Bar State Agencies from Asking Applicants About Criminal Histories

Bradley Arant Boult Cummings LLP

Tennessee has become one of the latest states to “ban the box,” joining a growing list of jurisdictions barring employers from asking about job applicants’ criminal histories. As of April 18, 2016, a total of 23 states and more than 100 cities and counties have adopted some sort of “ban the box” law or ordinance, according to the National Employment Law Project (NELP).

The movement is gaining most of its traction in public employment. Like many other states, Tennessee’s “ban the box” statute only applies to applicants for certain state jobs and does not apply to private employers. According to NELP, only seven of the 23 states with ‘ban the box’ laws apply to private employers. Those seven states are Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island. For a complete listing of states and municipalities with “ban the box” laws or ordinances, please see the list on the NELP website.

Tennessee’s law (which became effective April 14, 2016) bars the state from asking about criminal histories for certain state positions on the initial employment application. After an applicant clears the initial screen, then the state may inquire about an applicant’s criminal history. However, if the state asks, then it has to give the applicant an opportunity to explain the criminal history. In considering an applicant with a criminal history, the law requires the state to consider certain factors in its hiring decision, such as whether the criminal history has any bearing on the applicant’s ability to perform the job’s duties, the amount of time since the conviction or release, the applicant’s age at the time of the commission of the offense, and the frequency and seriousness of each offense, among other factors.

In addition to not applying to private employers, the law has other limits. It expressly exempts state contractors and subcontractors, political subdivisions, the state board of education, the department of education, and the Tennessee Bureau of Investigation. Also, the law does not apply to applicants for “covered positions,” defined as those where a background check is required under federal law or where commission of an offense is a disqualifying event under federal or state law.

The Alabama legislature is also currently considering a “ban the box” bill that would only apply to state agencies and not to private employers.

The growing “ban the box” movement in states and municipalities coincides with the Equal Employment Opportunity Commission’s (EEOC) increased emphasis on the subject. The EEOC contends that an employer’s use of an individual’s criminal history in making employment decisions may—in certain cases—violate Title VII’s prohibition on employment discrimination. The federal agency has filed lawsuits against private employers, contending that those employers’ background check policies had a disparate impact on African-Americans. Employers using a third-party to conduct background checks for employment purposes need to also comply with the Fair Credit Reporting Act’s provisions.

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.

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