“Ban the Box” and Fair Chance Legislation

by: PlusOne Solutions

Any organization who hires employees or contractors should be aware of city, county and state directives commonly referred to as “Ban The Box” or “Fair Chance” legislation. As an extension of the service we already provide our Customers, PlusOne will be acting as the administrative agent to meet the obligations of the applicable Ban The Box/Fair Chance regulations.

This means if you operate a business or hire individuals in these areas, you may be subject to the requirements. You are advised to contact your legal counsel to obtain proper legal guidance. Some legislation is based on the location of the employer or the work, others rely on the location of the applicant.

Background

Initially at issue was the elimination of the question, “have you ever been convicted of a criminal offense for which you have not received a pardon?” on application forms. The goal was to “ban the box” thereby, not obtaining criminal history information.

Ban The Box and Fair Chance initiatives seek to open opportunities for individuals with past criminal convictions and promote fair hiring practices by ensuring individuals are considered for opportunities based on their work experience, skills and education first; with the criminal conviction considered only later in the process, if applicable. The Equal Employment Opportunity Commission (EEOC) contends that if employers have access to criminal conviction history, they will use it in their assessment process.
Now, however, these initiatives have moved beyond just this question to impact other requirements around background screening and the criminal record review process.

Requirements Vary by Jurisdiction but May Include:

 Jurisdiction specific forms to be completed and sent to subject

 Having a Criminal Record Review Policy on file

 Specify exact reasons for ineligibility in pre adverse/adverse letters

 Consider 2012 EEOC Guidance on Criminal Records specifically relevance of conviction to role, time since occurrence, and nature and gravity of the offense

 Individual assessments to gather appropriate information and mitigating factors

 Notification to the subject of the background screen before adverse action is taken allowing them to provide additional information, and dispute results

 Restrictions on the type and amount of criminal record information that can be considered i.e. no arrest information, 7 year limitation on use of convictions, certain misdemeanors only etc.

Immediate Actions Companies Can Take to Ensure Compliance

 Include a notice in any job ad that “All qualified employment applicants, including those with criminal histories, will be considered in a manner consistent with applicable state and local laws.”

 Remove any question(s) in the application process relating to criminal history

 Do not ask any questions, verbally or in writing, about a subject’s criminal history until at least after a conditional job offer has been made

 Postings in the workplace – i.e. San Francisco, Philadelphia, Los Angeles

 Determine which types of convictions are incompatible with the role being filled

Considerations:

Typically the above requirements are the responsibility of the employer, however in the PlusOne model, we have a tri-party relationship between our Customer, the Company (employer) and Contractor. This means that insofar as the screening report is used for program eligibility, the requirements need to be met. However, as an employer, you may have additional responsibilities and are advised to review your hiring processes with legal counsel to determine what may be required.

The PlusOne program has consistently advocated protecting the subject’s privacy and right to a fair process. We have always supported individual assessment of potentially adverse information, with opportunities for the subject of the report to review, dispute and/or correct the information. We have never included questions in our applications, or any part of our screening process, that ask about a record of arrests or past criminal convictions.

Looking Ahead

Currently, there is no federal legislation, although that may be coming, and there are numerous regulations for public sector employers. In order to ensure compliance with Ban The Box and Fair Chance legislation, PlusOne will continue to monitor these initiatives and advise our Customers and their networks of potential areas of action. Even if you are not currently subject to any regulations, we advise you to watch this topic closely.

This information is provided for informational purposes only. PlusOne cannot provide legal advice and encourages all Companies to seek their own legal counsel on this matter.

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