Removing a Check Box from an Application May Not be Enough to Comply with Ban-the-Box Laws - American Society of Employers - Susan Chance

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Removing a Check Box from an Application May Not be Enough to Comply with Ban-the-Box Laws

Job application on clip boardWe all know the theory behind the “Ban-the-Box” movement and how it is supposed to give people with a criminal record (one in three Americans according to a resolution from Suffolk County, NY) a fair chance at obtaining employment and even the field against racial discrimination. There are 35 states and at least 150 cities and counties who agree with this theory; and therefore, have ban-the-box policies on record. While most states have the ban for public employers, at least 11 states and many cities and counties also ban the box for private employers.

Still, there are studies that show the polices have actually increased the racial disparity, especially for black and Hispanic men even if the men do not have a criminal record. This is not the intended spirit of the policies and many locations are looking for ways to combat this trend. Part of the problem is the implementation and enforcement, or lack of enforcement, with the policies.

While it is easy enough for HR to remove the “box” from their application, if you work in multiple states, make sure you are familiar with the state and local policies. This could mean more than just removing that check box from your application.

There are many initiatives to educate the applicants about ban-the-box and their rights when applying for jobs. In some locations this may mean having educational sessions for people with criminal records. In other locations, it means employers have obligations to inform applicants of their rights and how they can file a complaint if they believe their rights have been violated.

Washington DC
Employers must provide unsuccessful applicants with information regarding filing a complaint with the DC office of Human Rights.  DC offers a “major incentive” for people to report violations. If an applicant files a complaint that is successful, they are entitled to half of the employer’s fine. If an offer is to be rescinded, the employer must have a “legitimate business reason” taking into consideration factors such as the amount of time since the crime was committed or how the crime relates to the job.

South Los Angeles, California
During an event for the “reentry community” on fair employment and housing the Lead of the CA Department of Fair Employment and Housing stated that he could count on two hands the number of people who knew about the policy and how to file complaints.

Suffolk County, New York
Employers are required to provide documentation to applicants who are not hired on how the employer “formed the basis for an adverse action.”  The position must remain open for seven business days to give the applicants time to respond to said documentation.

These are just a few examples of the additional requirements for ban-the-box laws. When taking an adverse action on an applicant, five days is the acceptable standard of time in most locations to allow an applicant to respond. Some locations require longer waiting periods.

While the 2-step Pre-Adverse and Adverse Action processes suffice in most locations, some locations, such as New York and Los Angeles, require much more documentation when rejecting an applicant based on a criminal record.

It is important to be familiar with the requirements of the locations in which your company operates and to comply with all required policies as we live in a litigious society. It is also important to check for updates periodically as laws are constantly changing and new laws are being enacted regularly.

 

Sources:  shrm.org, theatlantic.com, riverheadnewsreview.timesreview.com

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