The Ban the Box Campaign is picking up steam.
For those of you who may not be aware, Ban the Box refers to the checkbox on an employment application, “Have you ever been convicted of a crime?” Simply put, the argument against using this pre-emptive rejection tool is that it could result in disparate impact downstream, as a disproportionate percentage of those convicted of crimes are minorities. Beginning with Hawaii in 1998, thirteen states and 70 cities and counties have enacted legislation that prohibits such questioning for public and/or private sector jobs. Likewise, mega-employers Target and Wal-Mart have eliminated the practice nationwide. If your business has not yet been compelled to change, you may be soon, so you might as well get on board. “Additionally, small to mid-size businesses in particular risk the more direct-type employment discrimination claims as they are more likely to hire family, friends, and friends of friends (people who look like you do). By continuing to use The Box, they also run the risk of making exceptions for family and friends that you wouldn't make for a stranger applying for the same job.” - M. Nelson of Law Offices of Maritza S. Nelson, LLC
Based on the reaction I have seen from my clients, the initial thought of many business owners is that this is a cataclysmic turn of events. “You mean I have to hire criminals?” The answer, of course, is no. I would argue if you are relying on The Box, you are not using the most effective hiring practices anyway.
Yes, you still have an obligation as an employer to protect your staff and customers from harm as a result of negligent hiring, and there are always certain jobs that have zero-tolerance for certain types of crimes. However, if your goal really is to minimize your risk from those who could be predisposed to dishonesty, consider this - Lynn Leary, of Employment Practices Counsel, Inc. of Charlotte, NC reports these startling figures -
A 2007 hiring report with a sampling of 5.8 million (yes, million) individual background checks reveals:
∙ 41% of employment, education and/or reference checks performed revealed a difference in information between what the applicant provided and the source reported
∙ 35% of driving record checks showed “one or more violations or convictions,” and
∙ 5% of criminal background checks revealed a criminal record within the last seven years.
Think about how much more effective making an offer of employment contingent upon a background check would be? Think of the information available to you that you never would have found out if you had only relied on The Box, to begin with? If a criminal history exists, you could evaluate the relevancy of that conviction to the position being applied for knowing that the candidate is otherwise qualified*. To the negligent hiring argument as a defense for maintaining The Box, by having all final candidates undergo a background check, I believe you are exercising a much higher level of due diligence. Doing this could not only decrease that risk but could possibly raise your organizational performance by ensuring you are getting the candidate with the education and background they profess to have. So to the question, “Ban the Box?” I say, “Bring It!”
*Be aware that there are caveats about when you can run a check, the information you can ask for, and the types of jobs that you may or may not be able to unequivocally bar someone with a criminal record from holding. Let me help you create the best hiring process for the roles in your business.
The information contained in this article is provided solely for the general interest of the readers and should not be relied upon or construed as legal advice and is not a substitute for obtaining legal advice from an attorney licensed in your jurisdiction.
- Review your State and Local laws requiring the use of criminal history information for the purpose of making a decision to hire or not hire.
- Eliminate language in your employment ads that suggest a person with a criminal record is not eligible for your job.
- Eliminate questions regarding convictions, arrests, and crimes from your job application.
- Train hiring managers and recruiters to avoid asking about applicants’ criminal histories until an offer of employment is made.
- Review your policies regarding how offers of employment will be rescinded and ensure you have clear guidelines as to how felonies and misdemeanors will be evaluated in order to determine if they are permissible or disqualifiers for each unique job.
- To best ensure you are staying within the guidelines that protect applicants while looking out for the best interest of your business, seek professional guidance about creating these or any new hiring practices.