Despite unprecedented circumstances and new ways of operating our businesses in 2020, updated human resource compliance laws continue to go into effect. At Soteria, we are immersed in understanding the patchwork of federal, state and local regulations to keep you up-to-date and mitigate risk for your company.
Of note for 2021 is the continued expansion of fair chance hiring laws. Over the past decade, these laws, commonly known as “ban the box” laws, have grown in popularity with the intent to help people with criminal records obtain employment. The name refers to the “Have you ever been convicted of a crime and, if so, explain” check-box question on employment applications. This year, specific states, cities and counties have adopted or modified their ban the box requirements.
What Do Ban the Box Laws Do? It Depends…
All ban-the-box laws prohibit employers from asking applicants about criminal history on initial job applications. However, some go further, requiring employers to wait until after they have conducted an interview or made a conditional offer of employment before asking about criminal history.
Some laws also impose additional requirements. For example, in California, employers must engage in a multi-factored individual analysis of whether the criminal record justifies denying employment. And, if the employer decides to deny employment based on a criminal record, it must provide the applicant with notice and an opportunity to provide mitigating evidence that lessens the impact of the conviction.
Even in states that don’t have ban-the-box laws, a rigid practice of asking about criminal history and denying employment can violate federal antidiscrimination laws. Categorically denying employment to applicants with criminal records can have a disproportionate impact on certain racial groups. The Equal Employment Opportunity Commission (EEOC) has warned against this practice, issuing guidelines to follow to avoid discrimination. It includes conducting an individualized analysis considering factors such as the nature of the job, the severity of the offense and how much time has passed.
Why Ban the Box Matters?
One-in-three adults, 77 million people, in the United States, have criminal records. Many economists and other civic leaders assert that mass incarceration’s sheer scale makes fire chance hiring vitally important to our economy and society. Currently, 2.1 million people are behind bars in America and nearly 5 million people are on probation or parole.
Even the briefest minor interaction with the justice system can leave someone with a criminal record and a permanent barrier to a job, housing, education or an occupational license. A publicly available criminal record can include much more than felony convictions. It might also include:
- Your arrest for swinging a punch in a bar fight at age 20. But the record might not say that you were released without charges.
- The warrant issued when you were late paying traffic tickets, even if it was dismissed upon payment.
- Your misdemeanor conviction for possessing a small bag of marijuana.
- Your guilty plea to a minor charge — even though you didn’t commit a crime — just to get out of jail and put the process behind you.
Over 70% of people with criminal records were either convicted of misdemeanors (often without a lawyer present) or never convicted of anything; they were never charged, had charges dropped, or were found not guilty.
Ban the Box Benefits to your business
- Expanding the talent pool:
Casting a wider net to attract new hires can bring in stronger applicants, which can help your business remain competitive. One-third of working-age people have criminal records, and this candidate pool is diverse and eager to find and keep a job.
- Increasing hiring ROI:
The second benefit of fair chance hiring is the increase in return on investment from both a performance and retention standpoint. Research from the American Civil Liberties Union shows that people with criminal records have higher retention rates. Also, a study from Northwestern University finds that people with criminal records are no more likely to be fired for misconduct than people without records. When you give someone a fair chance, they may be grateful for the job and often feel a strong sense of loyalty as a result of their appreciation.
- Workplace diversity and inclusion:
Fair chance hiring also helps to build and reap the benefits of a diverse and inclusive workplace. The definition of diversity can be extended to different abilities, sexualities, ages, education, and socioeconomic statuses. We know the burden of incarceration is borne disproportionately by minorities. Therefore, when we don’t even consider people with criminal records for employment, we are causing an inordinate effect on our minority population.
The topic of ban the box laws is complex and with more than 180+ fair hiring laws in place across the country, the ban-the-box initiative continues to have momentum and shows no signs of slowing down. We are here for you to ensure your employment and work practices comply with applicable laws and regulations, while also achieving your company’s larger human capital resources objectives.
Sources:
https://www.fbi.gov/file-repository/ngi-monthly-fact-sheet/view
https://www.prisonpolicy.org/blog/2019/03/19/whole-pie/
