- What Ban the Box Means For You
- April 6, 2015 | Authors: Katherine A. Hren; Richard S. Rosenberg
- Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
We have been getting a number of questions lately about so-called "Ban-the Box" legislation. Here is an overview for your information.
What Is "Ban-the-Box"?
The movement gets its name from the goal of enacting laws to prohibit check boxes on housing and employment applications that ask about prior arrests or criminal convictions. At its core, the movement is an effort to limit discrimination against individuals with conviction and incarceration histories in both hiring and housing decisions by forcing employers and landlords to remove questions regarding criminal convictions from their initial employment and housing applications. While there is a wide variance in the specifics of the legislative efforts, the underlying policy is to limit or delay any inquiry into an applicant's criminal history until the later stages of the application process -- essentially delaying the inevitable and costing employers time and expense.
Fast Spreading Movement
Initially, public sector employers were the focal point of the movement. Current states with statewide Ban-the-Box legislation for public employees include the following: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, and Rhode Island.
Additionally, over 70 cities and counties have taken actions to Ban-the-Box for public employers, including New York, NY, Baltimore, MD, Washington, DC, Detroit, MI, Boston, MA, and Atlanta, GA to name a few. In California, the following ten cities and counties have already taken various measures: Alameda County, Berkeley, Carson, Compton, East Palo Alto, Oakland, Pasadena, Richmond, San Francisco, and Santa Clara County.
More recently, private employers have become the focus of these laws as well. Currently, six states have applied their Ban-the-Box legislation to private sector employers statewide: Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island.
San Francisco recently became the first major city in California to enact Ban-the-Box measures specifically for private employers, joining Chicago, IL, Baltimore, MD, Columbia, MO, Buffalo, NY, Rochester, NY, Newark, NJ, Philadelphia, PA, and Seattle, WA. With countless legislative measures currently working their way through the pipeline, this list is certain to grow.
California's state legislature has yet to enact a statewide private employer Ban-the Box law, but one could be coming this term. The City of Los Angeles is also on the cusp of passing its own Ban-The Box ordinance. If you employ people in a locale which has one, you must familiarize your hiring managers with the requirements and scrupulously follow them. Further, it is advised that employers continuously monitor and stay up to date on all Ban-the-Box legislation as it continues to pop up across the country. Employers doing business in the regions identified above are encouraged to immediately review their employment application materials and job solicitations.
In the meantime, California law (Labor Code sections 430-435) already bars employers from inquiring into or using information about any record of an arrest that did not lead to a conviction when making employment decisions about a job applicant or existing employee. However, there is a limited exception that permits employers from asking an applicant or employee about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. In addition, these very same laws also prohibit inquiries into certain marijuana related convictions and any conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated. This means that employees with such a record may truthfully answer "no" if asked about such a conviction of this nature.
Employers are cautioned to be sure that the company's employment application is legally compliant and does not contain any questions which are outlawed by the Labor Code. One shouldn't assume that the document is legal simply because it was purchased from a stationary supplier or other seemingly credible source. Hiring managers should be trained to avoid saying things to job applicants and promotional candidates which are at odds with this prohibition.