By Christopher S. Alvarez, Attorney at Law, Cook | Brown LLP
As a growing number of states, cities, and counties enact laws preventing employers from asking up front about a job applicant’s criminal history, multijurisdictional employers may need to evaluate whether to remove the criminal history question from their job applications altogether.
So-called ban-the-box laws generally prohibit employers from asking on job applications whether an applicant has a criminal record. According to the National Employment Law Project, twelve states and over sixty-six local jurisdictions across the U.S. have adopted some form of ban-the-box law. Additionally, New Jersey recently enacted a ban-the-box law, bringing the total to thirteen states. The California legislature is among those enacting a ban-the-box law, which went into effect on July 1, 2014, removing questions about convictions in job applications for state agencies, cities, counties, and special district jobs. California, however, permits such inquiry later in the hiring process, and has not taken the step of prohibiting private employers from asking questions about criminal convictions.
Although most ban-the-box laws apply only to public sector employers, six of the thirteen states also apply their laws to private employers. These states include Hawaii, Illinois, Massachusetts, Minnesota, Rhode Island, and New Jersey.
Local jurisdictions may also enact similar prohibitions, and California cities and counties, including Alameda, Berkeley, Carson, East Palo Alto, Oakland, and Santa Clara, enacted ordinances that limit inquiry into a candidate for public employment’s criminal history. Additionally, some California cities and counties, extend the application of their ban-the-box ordinances to private employers doing business with them. Specifically, Compton enacted an ordinance that applies not only to the city but also contractors doing business with the city. Richmond similarly passed an ordinance that applies to the city and vendors and contractors, as well as their subcontractors, if they have more than ten employees and do business with the city, unless a background investigation is required by state or federal law.
San Francisco went one step further than either the State of California or other local jurisdictions, enacting a ban-the-box ordinance that applies to both public and private employment. It applies to not only applicants for city jobs and city vendors, but all private employers with 20 or more employees, regardless of whether they do business with the city. San Francisco permits the consideration of past convictions if the applicant has been identified as a finalist for a position under limited circumstances. It makes an exception for jobs where state or local law bars people with convictions from employment, and requires the employer to demonstrate that the person’s criminal history has “a direct and specific negative bearing” on that person’s ability to perform the job.
As the number of states and local jurisdictions with ban-the-box laws increase, multijurisdictional employers should pay particular attention to their job applications. Their job applications may have to be altered especially if they hire employees located in states and local jurisdictions with different ban-the-box laws and ordinances. Given the cost of complying with different state law and different ordinances within a state, and that the improper use of criminal history information may be considered a violation of Title VII, employers should seek guidance before including application questions regarding criminal history, or using criminal history information in making employment decisions.
From The Cook Brown Report (Fall Edition). http://www.cookbrown.com