Last week in Lansing, Rep. Fred Durhal Jr. (D-Detroit) introduced a “Ban-the-Box” bill in the House. HB 4366, if it were to become law, would prohibit employers from asking on their application forms if a prospective hire has a felony record.

As reported in everythingpeople.™ This Week! and elsewhere in the last several months, the purpose of such a law is not to prohibit employers from finding out about the past transgressions of such applicants, or even from rejecting them as employees due to the nature of their offenses and the job to be filled. The purpose is to make it easier for such applicants to get in front of employment interviewers with the chance to successfully sell themselves as candidates to the employer, who has the right at that point to ask for such information.

The Ban-the-Box movement has been in existence nationally for several years. It was given new impetus by a revised guidance put out by the EEOC in 2012. In that guidance, the EEOC recommended as a “. . . best practice . . . that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Anecdotally, many ASE members use background check services only after making a conditional offer. Most will review any conviction that shows up with relatedness to the job in question.  They would also discuss with the applicant any issue that arises to get a better understanding.

Mark Peters, CEO of Butterball Farms outside Grand Rapids, supports the bill. Recently the company upgraded its technology enabling it to substantially reduce the size of its workforce. Many of the employees who survived ex- felons; Peters attributed their staying power to the fact that “they worked harder.”

Opponents of the bill include the Michigan Chamber of Commerce and the Michigan Manufacturers’ Association. Chamber spokesperson Delaney McKinley argues that the bill would “. . . (tie) the hands of employers . . .” and make them liable for subsequent misdeeds of such employees. Wendy Block of the MMA characterized the “box” as “the first line of defense” for employers in screening employees. The MMA instead wants the legislature to incentivize employers to hire such applicants by, among other strategies, protecting employers from liability in the event such employees commit criminal acts.

Since its introduction, HR 4366 has been sent to the House Commerce Committee and resides there at this time. That committee is chaired Rep. Frank Foster, a Republican who represents the eastern Upper Peninsula and a portion of the northwest Lower Peninsula (District 107).

Whether the bill ever gets out of committee, let alone wins passage, remains to be seen. However, it is instructive for employers get an update on the Ban-the-Box movement as a whole, because if they operate in certain other states and/or in some counties and/or municipalities in Michigan, they may very well have to comply with local Ban-the-Box ordinances.

Ten states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Mexico, Minnesota, and Rhode Island) plus Washington D.C. have enacted Ban-the-Box laws. Most of them apply the law to public employment only, some to state government only. Three states (Hawaii, Massachusetts and Rhode Island) extend the coverage to the private sector as well the public sector.

According to the National Employment Law Project, an advocacy group for felons returning to society, 23 states have one or more local government entities that have passed Ban-the-Box ordinances, for a total of 53 local jurisdictions nationally.

In Michigan, the City of Detroit has banned the box in its own hiring and that of its vendors. The city of Kalamazoo has banned the box on its own application form. And the Board of Commissioners of Muskegon County has banned the box on the county’s application form.

It does not seem likely that “Ban the Box” will become federal or state law any time soon. However employers need to be aware that this nascent movement could begin to gather momentum, and that the EEOC, which has taken a generally aggressive approach to regulatory enforcement in the workplace, has been decidedly aggressive on this issue.  Every employer should initiate an internal dialogue on what its approach to this issue needs to be, if it has not done so already.

Additional Source: Gongwer 11/12/13