Recent “Ban-the-Box” Legislation

According to the National Employment Law Project, “ban the box” laws are in place in more than 24 states and 150 cities and counties. Some of the more recent include:

Portland Oregon Ban-the-Box 

Portland has joined other cities in passing their own ordinance restricting the consideration of a criminal record. These restrictions go beyond the restrictions already in place per the Oregon ban-the-box state law.

Employers cannot inquire about or access criminal record information prior to a conditional job offer.

The follow also cannot be considered by an employer:

  •  • Arrests not resulting in a conviction.
  •  • Expunged and “voided” convictions.
  •  • Deferred adjudications, except for crimes of physical harm or attempted physical harm to another person.

Individual assessment is also required, but it only entails the 3 classic considerations – seriousness of the offense, how long ago it occurred and its relationship to the job.

In addition, the employer must send a notice to the applicant that he/she did not get the job due to the criminal record and provide a copy of the record(s) in question that resulted in the decision not to hire.

Law was effective July 1, 2016.

Missouri Ban the Box 

Democratic Gov. Jay Nixon has signed an executive order that directs state departments, boards and commissions under the executive branch to strip questions about criminal history from the job applications prospective workers first fill out.

Philadelphia Ban the Box 

Philadelphia has amended its Ban-the-Box ordinance: Chapter 9-3500 of the Philadelphia Code. These changes were effective as of March 14, 2016. The following are bullet points regarding the changes in this ordinance.

  •  • The prior law restricted inquires into the criminal history of an applicant until after the first interview.
  •  • Prior law covered employers with 10 or more employees. The new ordinance covers all employers within the city of Philadelphia regardless of size.
  •  • An employer cannot ask whether an applicant is willing to submit to a background check prior to a conditional offer of employment.
  •  • The disclosure notice that criminal records will be sought must contain a statement such as: “consideration of a criminal record will be tailored to the requirements of the job”.
  •  • The ordinance now outlines, much like New York City, what factors must be considered by the employer when assessing the criminal record of the applicant. These are: (a) the nature of the offense; (b) the time that has passed since the offense; (c) the applicant’s employment history before and after the offense and any period of incarceration; (d) the particular duties of the job being sought; (e) any character or employment references provided by the applicant; and (f) any evidence of applicant’s rehabilitation since the conviction.
  •  • Employers may only consider convictions or release from confinement within the last seven (7) years.
  •  • Notice of rejection. The ordinance uses confusing language regarding whether this is intended to be a pre-adverse action or adverse action notice, but it would seem that this is intended to be part of the pre-adverse action notice because the ordinance requires that the applicant be informed that he/she be allowed ten (10) days to provide evidence of inaccuracy of the information or provide an explanation. The notice, like the FCRA, requires a copy of the report be provided to the applicant with the notice.
  •  • Right to sue.  The ordinance now permits private lawsuits for the violation of this ordinance if the individual follows the required administrative steps.
  •  • Posting notice. The Philadelphia Commission on Human Relations will create a notice of rights which each employer must post at their place(s) of employment.

Take Away: Due to the proliferation of “ban-the-box” laws, employers may want to conduct a broader (and privileged) assessment to strengthen their compliance with federal, state and local employment laws which regulate use of an individual’s criminal history. Suggested action items are as follows:

  • Review impacted job advertisements for impermissible language regarding criminal records.
  • Review job applications, including applications embedded within applicant tracking systems, and related forms for impermissible inquiries regarding criminal records.
  • Provide training and FAQs to employees who conduct job interviews and make or influence hiring and personnel decisions to explain permissible and impermissible inquiries into, and uses of, criminal records, and convey protocols for storing such records and documenting related hiring and personnel decisions.
  • Review the hiring process to ensure compliance, including the timing of criminal background checks etc, the distribution of mandatory notices, and the application of mandatory deferral periods.



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