"Ban the Box" is an organization and a social movement concerned with getting companies to remove questions about prior criminal convictions from their applications, so people with criminal records have a fair shot at getting job interviews. Although the movement is focused on getting businesses to do this voluntarily, about 18 states and 52 cities have enacted laws aimed at scrubbing this question from applications. Here's what you need to know about this social action and how to protect your business should the city or state where you do business pass similar laws.
The Purpose of Banning Questions About Criminal Convictions
It's no secret that many businesses are reluctant to hire people who were convicted of crimes. Much of this is due to fears of becoming a victim of crime or being held liable if the person hurts other employees or customers. Thus, it's not surprising that about 40 percent of respondents to a survey stated they would not even consider hiring people they knew had criminal records. This type of discrimination can make it difficult for ex-convicts to obtain employment, which may lead to relapses into criminal activity.
It's believed that removing the box will let people with criminal records bypass this hurdle and get the opportunity to discuss their qualifications at job interviews rather than being dismissed out of hand. It may also give employers the chance to find talented and loyal employees they may have otherwise overlooked because of a checkmark.
Protecting Your Business
While eliminating questions about criminal convictions can reduce discrimination in this area, some business owners feel it may increase their liability risk or make them more vulnerable to being victimized. However, it's important to note that this measure only applies to the initial job application. Businesses are still allowed to run criminal background checks on potential employees and factor this information into their hiring decisions. Remember, though, you must secure written permission from the applicant to obtain this information.
Additionally, industries that work with sensitive or vulnerable populations such as children and the elderly are typically exempt from complying with a "Ban the Box" rules. In some areas, the rule only applies if your company is a certain size. For instance, the Fair Chance Ordinance passed in San Francisco only applies to employers with 20 or more employees, among other restrictions. Therefore, you should first check with your local laws to determine if your company is subjected to them before you start making changes to your hiring practices.
For companies subjected to "Ban the Box" laws, making changes to your applications and retraining your human resources personnel will be critical to ensuring your company is compliant with the rules. Questions about prior criminal convictions should be taken off applications, and hiring managers need to understand when the question of prior convictions can be broached and when it should be avoided to minimize the risk of someone saying the wrong thing at the wrong time and getting you hit with an employment discrimination lawsuit.
Lastly, you should speak to your business attorney about liability issues related to hiring someone convicted of a crime. It's true you can be sued for hiring an ex-convict who goes on to hurt employees or customers. However, the fact that the person has a criminal record is not the sole determinant of your liability.
The courts will take into account the type of crime the person committed in the past versus the crime he or she committed while working for you. You might not be held liable if there is no relation between the two. For instance, the court may not consider it to be a negligent hiring if the person was convicted of a DUI charge in the past but stole money from a customer while working for you, since the two crimes are not related. However, it could be considered negligent hiring if the person got into a DUI accident in the company vehicle because his or her record indicated an issue with that type of crime and you gave the person access to a vehicle.
Understanding this difference can help you make wise decisions when it comes to hiring people with prior convictions.
For more information about how "Ban the Box" laws may affect your business and what you can do to protect yourself, contact a firm such as Lane and Waterman LLP.
